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songer_applfrom
B
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court). PEERLESS PRESSED METAL CORPORATION, Plaintiff, Appellant, v. INTERNATIONAL UNION OF ELECTRICAL, RADIO AND MACHINE WORKERS, AFL-CIO, et al., Defendants, Appellees. No. 71-1198. United States Court of Appeals, First Circuit. Nov. 8, 1971. Julius Kirie, Boston, Mass., for appellant. Michael A. Feinberg, Boston, Mass., for appellees. Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges. PER CURIAM. This is an action for a declaratory-judgment seeking to enjoin arbitration of a labor grievance. The district court denied relief, but by agreement of the parties arbitration was postponed until the actions should be disposed of. Appellant employer and appellee union for many years have had a collective bargaining agreement calling for arbitration of “any controversy between the parties or between the Company and employees covered by this Agreement as to any matter involving the interpretation or application of any of the provisions of this Agreement” which has not been resolved through the grievance machinery. In 1965 one Burke, an employee of thirteen years seniority, was promoted to supervisor. Five years later he was laid off, and sought reinstatement into the bargaining unit as a rank and file employee. The employer refused and the union, after unsuccessfully invoking the grievance procedure, sought arbitration. The company brought this action to enjoin arbitration, claiming that the dispute is not arbitrable because Burke, as a laid-off supervisor, is not a person for whom the union is entitled to grieve. It is common ground that although a collective bargaining agreement is a contract, it is to be more liberally construed than an agreement between private individuals. A court should not refuse to order arbitration “unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.” United Steelworkers of America v. Warrier & Gulf Navigation Co., 363 U.S. 574, 582-583, 80 S.Ct. 1347, 1353, 4 L.Ed.2d 1409 (1960). This does not grant to the courts a license to inquire into the merits on the theory that they are enforcing a clause limiting arbitration to disputes requiring an interpretation of the agreement. A dispute may not be kept from the arbitrator on this ground so long as it is “possible”, even if as a court we might not think it “reasonable”, for an arbitrator to decide in favor of the party demanding arbitration without thereby, in effect, amending the plain language of the agreement. See John Wiley & Sons v. Livingston, 376 U.S. 543, 555, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964); Camden Industries Co. v. Carpenters Local Union No. 1688, 353 F.2d 178, 180 (1st Cir. 1965). The company relies on Article II —Coverage, which provides that “This Agreement applies only to all * * * employees * * * but excluding * * * supervisors as defined in the Act.” If Article II were susceptible only of a very precise and narrow definition of “employee”, the mere fact that other clauses could be read consistently with a broader definition would not suffice for arbitrability. We read certain clauses of the agreement, however, as arguably pointing positively to a different and wider definition. Under these circumstances, we deem it proper for an arbitrator to resolve the dispute. In particular, the notion that seniority is inextricably intertwined with the right to reinstatement provides, in our view, a basis for an interpretation favorable to Burke of the word “employee” in the coverage clause. The argument would be that under the agreement supervisors retain seniority accrued before their promotions and that, therefore, they remain employees for the purpose of exercising seniority rights and their right of reinstatement, like that of other employees, is determined solely by their seniority. On this theory, arbitration of the grievance is not plainly barred by the Article II inclusion of “employees” and exclusion of “supervisors”. Support for the proposition that supervisors retain accrued seniority rights could be drawn from two provisions of the agreement. In setting forth the conditions under which employees lose seniority rights, Article XVIII does not indicate that they are lost upon promotion to supervisory status. Additionally, Article XXII(f) explicitly provides that an employee promoted to be the “seventh foreman” (not Burke) retains his seniority rights as of the date of his promotion. While one might argue that this states an exception to the general rule rather than an illustration of it, the former interpretation is by no means compelled by the language. The company concedes that arbitrators ordinarily grant accrued seniority rights to foremen who are promoted from the bargaining unit and then returned to it. While the construction of the agreement which would confer employee status for the purposes of Article II on one who seeks to exercise seniority rights is weak, we cannot conclude that it is impossible. We note that, under settled law, a laid-off employee is still an employee. Burke is arguably in a status akin to, if somewhat different from, that of a laid-off employee. He is willing to work though not now working and arguably possesses certain rights which have accrued to him, qua employee, under the collective bargaining agreement. This position has been taken in several arbitrators’ decisions which, while they deal with different collective bargaining agreements and do not in any event bind us, suggest that the mode of analysis is not inconceivable to those involved in labor-management relations. To say that Burke may be an employee for the purpose of reinstatement is not to conclude that he is entitled to reinstatement. To determine the merits of Burke’s claim, the arbitrator may look to the “law of the shop” and to the negotiations which led to the present agreement as well as to the other provisions of the agreement. These might include the management rights clause (Article XIY), the union membership clause which requires that all employees “including former supervisory personnel who have been demoted by the Company into the bargaining unit” must join the union (Article IV(e)), and the provision that the seventh foreman will, under certain circumstances, “revert to his previous status”. The language of these provisions would seem to permit the “possible” inference that demotion or reversion is automatic when a former production worker is laid off or discharged as a supervisor. On the other hand, the arbitrator could surely conclude that management has complete discretion over Burke’s rehiring. What is crucial here is simply that the agreement could be read as entitling him to reinstatement. So reading the agreement, under the rigorous standard of judicial restraint applicable to this field, we affirm the district court’s order to arbitrate. . Local 209, International Union of Electrical, Radio and Machine Workers, AFL-CIO. . See American Cyanamid Co., 19 N.L.R.B. 1026, 1033 (1940) ; Unit Cost Corporation, 7 N.L.R.B. 129, 133 (1938). . Reynolds Metals Co., 55 Lab. Arb. 1011 (1970) ; Babcock and Wilcox Co., 48 Lab. Arb. 1234 (1967) ; F. H. Noble & Co., 28 Lab. Arb. 641 (1957). Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)? A. Trial (either jury or bench trial) B. Injunction or denial of injunction or stay of injunction C. Summary judgment or denial of summary judgment D. Guilty plea or denial of motion to withdraw plea E. Dismissal (include dismissal of petition for habeas corpus) F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict) G. Appeal of post settlement orders H. Not a final judgment: interlocutory appeal I. Not a final judgment: mandamus J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment K. Does not fit any of the above categories, but opinion mentions a "trial judge" L. Not applicable (e.g., decision below was by a federal administrative agency, tax court) Answer:
songer_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". Radames MERCADO, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. No. 456, Docket 89-2316. United States Court of Appeals, Second Circuit. Submitted Jan. 9, 1990. Decided Jan. 10, 1990. Opinion Published March 5, 1990. Radames Mercado, Ray Brook, N.Y., appellant pro se. Andrew J. Maloney, U.S. Atty., E.D. N.Y., David C. James, Robert W. Biddle, Asst. U.S. Attys., E.D.N.Y., Brooklyn, N.Y., for appellee. Before MESKILL and NEWMAN, Circuit Judges, and POLLACK, District Judge. Hon. Milton Pollack, United States District Judge for the Southern District of New York, sitting by designation. PER CURIAM: This is a pro se appeal from a judgment entered in the United States District Court for the Eastern District of New York, McLaughlin, J., granting in part and denying in part appellant’s motion to vacate, set aside or correct a sentence pursuant to 28 U.S.C. § 2255. Appellant raises the issue of what form, if any, of post-release supervision may be imposed as part of a sentence under 21 U.S.C. § 841(b)(1)(B). Appellant pleaded guilty to possession of a substance containing cocaine in excess of 500 grams with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(l)(B)(i-i)(II). The district court originally sentenced him to a twelve year term of imprisonment to be followed by a ten year term of supervised release. Appellant moved pursuant to section 2255, inter alia, to vacate the term of supervised release. The court granted the motion to the extent that the portion of the sentence that imposed a term of supervised release was vacated and replaced with a ten year special parole term. On appeal, appellant maintains that the statute applicable to his offense at the time did not provide for any form of post-release supervision. The confusion surrounding the type of post-release supervision, if any, that may be imposed under 21 U.S.C. § 841(b)(1)(B) stems from an apparent oversight by Congress in the drafting of the Comprehensive Crime Control Act of 1984 (1984 Act), Pub.L. No. 98-473, §§ 224(a), 502, 1984 U.S.Code Cong. & Admin. News (98 Stat.) 1987, 2030, 2068, and from questions regarding the effective dates of the repeal of the relevant special parole provisions and their replacement with provisions requiring supervised release. See United States v. Byrd, 837 F.2d 179, 180-81 (5th Cir.1988). Several other circuits have thoroughly reviewed the issue and have held that the imposition of a term of supervised release is not authorized for offenses under section 841(b)(1)(B) committed prior to November 1, 1987; instead, a term of special parole must be imposed. United States v. Portillo, 863 F.2d 25, 26 (8th Cir.1988) (per curiam); United States v. Whitehead, 849 F.2d 849, 860 (4th Cir.), cert. denied, - U.S. -, 109 S.Ct. 534, 102 L.Ed.2d 566 (1988); United States v. Smith, 840 F.2d 886, 889-90 (11th Cir.), cert. denied, — U.S. -, 109 S.Ct. 154, 102 L.Ed.2d 125 (1988); Byrd, 837 F.2d at 181-82; see United States v. Levario, 877 F.2d 1483, 1487-89 (10th Cir.1989) (21 U.S.C. § 841(b)(1)(A)). But see United States v. Torres, 880 F.2d 113, 115 (9th Cir.1989) (per curiam) (holding that supervised release provisions under 21 U.S.C. § 841(b)(1)(A) were effective as of October 27, 1986), cert. denied, — U.S. -, 110 S.Ct. 873, 107 L.Ed.2d 956 (1990). The legislative history of the 1984 Act indicates that the replacement of special parole with supervised release applies only to those offenses occurring on or after the effective date of November 1, 1987. S.Rep. No. 225, 98th Cong., 2d Sess. 189, reprinted in 1984 U.S.Code Cong. & Admin. News 3182, 3372; see Byrd, 837 F.2d at 181. We therefore agree with the other circuits that have determined that special parole terms, rather than supervised release, must be imposed for offenses under section 841(b)(1)(B) committed before November 1, 1987. Because appellant’s offense took place prior to November 1, 1987, the district court properly replaced that portion of the original sentence imposing a term of supervised release with a special parole term. We have reviewed appellant’s other claims and find them to be without merit. The judgment of the district court is 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_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 CRUSHED STONE ASSOCIATION, INC. and Luck Quarries, Inc., Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent, WARREN BROTHERS COMPANY, a Division of Ashland Oil Co., Inc., and Ashland Oil, Inc., Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent. ARKHOLA SAND AND GRAVEL COMPANY, a Wholly Owned Subsidiary of Ashland Oil, Inc., Petitioner, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent. Nos. 76-1914, 76-1929 and 76-1930. United States Court of Appeals, Fourth Circuit. Argued April 4, 1978. Decided June 18, 1979. Theodore L. Garrett, Washington, D. C. (Covington & Burling, Washington, D. C., on brief), for petitioners. James A. Rogers, U. S. Environmental Protection Agency, Barbara Brandon, Atty. Dept, of Justice, Washington, D. C. (James W. Moorman, Asst: Atty. Gen., Land and Natural Resources Division, Angus Macbeth, Chief, Pollution Control Section, Joan Z. Bernstein, Gen. Counsel, and Bruce M. Diamond, Atty., Environmental Protection Agency, Washington, D. C., on brief), for respondent. Before HAYNSWORTH, Chief Judge, and RUSSELL and WIDENER, Circuit Judges. WIDENER, Circuit Judge: Petitioners, National Crushed Stone Association (NCSA), Warren Brothers Company (Warren Brothers), and Arkhola Sand and Gravel Company (Arkhola) seek review of certain regulations promulgated by the Environmental Protection Agency (EPA) pursuant to §§ 301, 304 of the Federal Water Pollution Control Act (FWPCA), 33 U.S.C. §§ 1311, 1314. These regulations establish limitations on the discharge of pollutants from existing point sources of the crushed stone and construction sand and gravel subcategories of the mineral mining and processing point source category, based upon the best practicable control technology currently available (BPT). The regulations challenged here were promulgated in final form on July 12, 1977, to be effective August 11, 1977, 42 F.R. 35843 et seq. Previous to the promulgation of the final regulations, the EPA had issued regulations in “interim final” form, June 10,1976, 41 F.R. 23552 et seq. This court has jurisdiction under § 509(b)(1) of the FWPCA, 33 U.S.C. 1369(b)(1). The crushed stone subcategory regulations, 42 F.R. 35849-50, to be codified as a part of 40 C.F.R., Part 436, subpart B, apply “to the mining or quarrying and the processing of crushed and broken stone and riprap. This subpart includes all types of rock and stone.” 42 F.R. 35849. Riprap consists of large, irregular stones used chiefly in highway embankments and in river and harbor work. Other types of crushed stone are used, for example, in concrete, macadam, and bituminous aggregate, in railroad ballast, in agriculture, and in road bases. Approximately three quarters of all crushed stone is limestone. The crushed stone industry is widespread, with all States reporting some production. The size of individual facilities varies widely, from less than 25,000 to 15 million tons per year. Facilities which produce less than 25,000 tons per year constitute one-third of the total number of facilities, but only 1.3% of total national output. At the other extreme, 5.2% of the facilities each produce more than 900,000 tons annually, but together these make up 39.5% of the total output. Nationwide there are approximately 4800 crushed stone facilities. The construction sand and gravel subcategory regulations, 42 F.R. 35850-51, to be codified as 40 C.F.R., Part 436, subpart C, apply “to the mining and the processing of sand and gravel for construction or fill uses.” 42 F.R. 35850, § 436.30. Construction sand and gravel is used in building, paving, fill and railroad ballast applications. As with crushed stone, sand and gravel facilities are found in all States. Of the more than 5,000 firms engaged in production, 40% have an annual capacity of less than 25,000 tons; these smaller firms account for 4% of the national output. Larger firms with an annual capacity of more than one million tons, on the other hand, account for 12-15% of the national output, although by number they constitute less than 1% of the producing facilities. Crushed stone and construction sand and gravel operations produce two basic types of waste water which must be discharged and which the EPA has regulated. The first with which the Agency is concerned is that from “mine dewatering.” For crushed stone operations the term means “any water that is impounded or that collects in the mine and is pumped, drained or otherwise removed from the mine through the efforts of the mine operator.” 42 F.R. 35849, § 426.21(b). The definition for the construction sand and gravel industry includes identical language. 42 F.R. 35850, § 436.31(b). The introduction of pollutants includes those coming from “surface runoff of rain water into the mine and mine water treatment systems, ground water seepage and infiltration into the mine.” 42- F.R. 35845. The quantity of mine water that must be discharged either has no correlation with production or is only indirectly related. Only 13% of crushed stone facilities have no mine water. Mine water is also present in construction sand and gravel operations. The other type of waste water commonly associated with crushed stone and construction sand and gravel operations is that used in the processing of the applicable products. In the crushed stone industry, after the stone has been extracted from the quarry and crushed and screened to meet size specifications, water is added to wash the stone. In a few operations the rough product is processed in a flotation cell, where impurities are removed in the overflow from the cell, and the product is removed in the underflow. Some facilities also have a dry production process. With the dry process, of course, there is no discharge of process generated waste water, although half of the dry process quarries must be dewatered on at least an intermittent basis. Overall in the crushed stone industry 59% of the 4800 facilities wash their product. Of the crushed stone wet processing facilities contacted by the EPA, 33% do not discharge their wash water. Construction sand and gravel facilities also use water in processing the product to remove impurities such as clay and silt in separating and classifying the product, and in cooling and dust suppression. Half (35) of the facilities visited by the EPA have no discharge of process water because they recirculate all process water. A few facilities achieved no discharge of process water because of soil percolation or because of dredging closed ponds, the process water being discharged back into the pond. Some sand and gravel facilities use a dry process, and. thus have no discharge of process water. 4250 industry plants have wet process operations; only about 750 have dry operations. A few sand and gravel operations use dredging techniques. In developing the regulations the EPA considered the varieties, prevalence, and environmental effects of effluent produced by crushed stone and construction sand and gravel operations, and also the current pollution control practices used in the industries. Only two measures of pollution were considered by the Agency to be of sufficient importance to warrant regulation: Total suspended solids (TSS) and pH. TSS measures both organic and inorganic materials, such as sand, silt, clay, grease, oil, and tar. Solids in suspension interfere with many industrial processes; they are aesthetically displeasing; they burden aquatic life by depleting the oxygen content of water and clogging the respiratory passages of various fauna. The Agency considers TSS to be the single most important pollutant parameter in the mineral mining and processing industry. The petitioners do not challenge the EPA’s regulation of pollution as measured by pH. The interim regulations published by the EPA on June 10, 1976, 41 F.R. 23552, divided waste water discharges from crushed stone and construction sand and gravel facilities into two components. “Mine dewa-tering,” referred to earlier, was there defined for both subcategories as “any water that is pumped, drained or otherwise removed from the mine through the direct action of the mine operator.” 41 F.R. 23558, § 436.21(b); 42 F.R. 23559, § 436.-31(b). The definition for construction sand and gravel added “wet pit overflows,” not relevant here. Mine water was permitted to be discharged if TSS concentration did not exceed 30 milligrams per liter (mg/1) of waste water output for any one day. 51 F.R. 23558, § 436.22(a)(2), 41 F.R. 23559, § 436.32(a)(2). The technical material accompanying the crushed stone regulations, 41 F.R. 23554, explained in general that “mine dewatering for all subcategories is limited on a daily maximum basis only, since mine dewatering may occur on an intermittent basis.” Water which collects on quarry floors “is quite clear” and “is typically of excellent purity,” 41 F.R. 23554. Thus, it often may be discharged without treatment, but “in extreme cases [where treatment is necessary] a settling pond at ground level” will permit enough of the suspended solids to settle out so that the mine water will meet the 30 mg/1 criterion. 41 F.R. 23555. The other waste water discharge regulated by the Agency in the interim regulations was “process generated waste water,” defined for crushed stone operations as “any waste water resulting from the slurry transport of ore or intermediate product, air emissions control, or processing exclusive of mining.” 41 F.R. 23558, § 436.21(e). No discharge of process generated waste water pollutants was permitted by the interim regulations, Id. at § 436.22(a)(1), although the regulations contained exceptions. Crushed stone facilities would be able to meet the no discharge requirement by clarifying process generated waste water in a settling pond, and then recirculating it in the production cycle. 41 F.R. 23554. As envisioned by EPA in the interim regulations, all water used in the production processes would be recycled back to the process for reuse, and thus there would be no discharge. The regulatory scheme established by the interim regulations for construction sand and gravel plants was not identical, but similar. There, too, discharge of process generated waste waters was prohibited. 41 F.R. 23559, § 436.32(a)(1). However, because the EPA found that in construction sand and gravel plants “mine water is often treated in process waste water ponds,” 41 F.R. 23555, the interim regulations for construction sand and gravel operations provided that when “waste streams from various sources are combined for treatment and discharge, the quantity and quality of each pollutant or pollutant property in the combined discharge shall not exceed the quantity and quality of each pollutant or pollutant property allowed had each stream been treated separately.” 41 F.R. 23559, § 436.-32(a)(3). Thus the regulations provided that the water to be discharged from the two sources could be commingled in the same settling pond and discharged subject to the 30 mg/1 limit. The regulations did not require or mention recycling, and obviously rejected the Technical Summary, which in 41 F.R. 23555 had recommended recycling where there was a commingling in a settling pond. On July 12,1977, a little more than a year after the interim regulations were published, the EPA announced its fihal rulemaking for the crushed stone and construction sand and gravel subcategories, 42 F.R. 35843. Two principal changes which concern us were made in the final regulations. First, the maximum TSS mine water effluent limitation for both subcategories was raised from a permissible discharge of 30 mg/1 for any one day to 45 mg/1, but a new thirty day average of 25 mg/1 was promulgated. 42 F.R. 35850, § 436.22(a)(1); 42 F.R. 35851, § 436.32(a)(1). Second, the no process water discharge provision of the interim regulations was changed for some facilities. Instead of the former provision, crushed stone and construction sand and gravel operations “that recycle waste water for use in processing” were permitted to discharge “process generated waste water pollutants” in accordance with a daily maximum of 45 mg/1 and 30 day average of 25 mg/1. 42 F.R. 35850, § 436.22(a)(1), 42 F.R. 35851, § 436.32(a)(1). The interim no discharge provision was retained unchanged for facilities which did not recycle. 42 F.R. 35850, § 436.22(a)(2); 42 F.R. 35851, § 436.32(a)(2). In addition to these changes, the definition of mine water for both subcategories was changed by classifying all water collected or impounded in a mine as “process generated waste water” if the mine is used for treatment of “process generated waste water,” and the definition of process generated waste water was amended to “include any other water which becomes commingled with such waste water in a pit, pond, lagoon, mine, or other facility used for treatment of such waste water.” In the Summary of Major Changes that accompanied the new regulations, the EPA explained the rationale for the changes described above. The increase in the daily maximum TSS discharge and the addition of a maximum average 30 day discharge “were made because additional data collected since the promulgation of the interim final regulations indicated that the day-today variations in discharges from individual operations were greater than initially found, and because the additional information collected provided the broader data base necessary for formulating a monthly average limitation.” 42 F.R. 35844. The provision permitting discharge of process water for crushed stone and construction sand and gravel facilities that recycle was added when the EPA found that “a number of the facilities which currently recycle experience occasional discharges due to natural occurrences, such as rainfall or seepage.” The discharge provision thus was added “to allow a limited discharge of process generated waste water pollutants.” 42 F.R. 35844. Non-recycling facilities were not provided the benefits of the “limited discharge, however, because of the Agency’s view that the best practicable control technology currently available for these industries includes recycling of process water.” 42 F.R. 35844. Petitioners challenge here the validity of the definition of process generated waste water contained in § 436.21(e) for crushed stone and § 436.31(e) for construction sand and gravel; the TSS limits for process generated waste water and the recycling requirement, § 436.22(a)(1) (crushed stone), § 436.32(a)(1) (construction sand and gravel); the no discharge provision for non-recycling operations, § 436.22(a)(2) (crushed stone), § 436.32(a)(2) (construction sand and gravel), and the TSS limits for mine dewa-tering discharges, § 436.22(a)(3) (crushed stone), § 436.32(a)(3) (construction sand and gravel). In addition, petitioners ask that the variance provisions for the crushed stone (§ 436.22) and construction sand and gravel (§ 436.32) subcategories be set aside as inconsistent with our decision in Appalachian Power Co. v. Train, 545 F.2d 1351 (4th Cir. 1976). The standards which we must apply to the review of EPA regulations have been set out elsewhere and need not extensively be reviewed here. E. g., Appalachian Power, supra, 545 F.2d at 1356-57; duPont v. Train, 541 F.2d 1018, 1026 (4th Cir. 1976), aff’d in part and rev’d in part on other grounds, 430 U.S. 112, 97 S.Ct. 965, 51 L.Ed.2d 204 (1977); Tanners’ Council of America, Inc. v. Train, 540 F.2d 1188, 1191 (4th Cir. 1976). Briefly, under the Administrative Procedure Act, 5 U.S.C. § 706(2), we may not set aside the regulations unless we find their promulgation to have been “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” § 706(2)(A), or “without observance of procedure required by law,” § 706(2)(D). In reviewing these regulations, we are further constrained by “the very basic tenet of administrative law that agencies should be free to fashion their own rules of procedure,” Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, 435 U.S. 519, 544, 98 S.Ct. 1197, 1212, 55 L.Ed.2d 460 (1978), and by provisions for rule making under the Administrative Procedure Act, 5 U.S.C. § 553, which establish “the maximum procedural requirements which Congress was willing to have the courts impose upon agencies in conducting rule making procedures.” Id. at 524, 98 S.Ct. at 1202 (footnote omitted). However, the Agency, as noted, must act in accordance with law, and not in an arbitrary or capricious manner. Neither may it abuse its discretion. 5 U.S.C. § 706. Courts are no longer satisfied with bare administrative ipse dixits, and the Agency must make reasoned decisions with full articulation of the reasoning and take into account all relevant factors. Appalachian Power Company v. EPA, 477 F.2d 495 (4th Cir. 1973). TSS Effluent Limitations We first consider the claim of petitioners that the regulations (42 F.R. 35850-1, §§ 436.22(a)(1), 436.22(a)(3), 436.32(a)(1), 436.32(a)(3)) establishing TSS limitations for mine dewatering and process generated waste water are invalid. The EPA has admitted that certain data called the “Versar data” were used to determine the 30 day TSS average of 25 mg/1 for both crushed stone and construction sand and gravel operations, and also has admitted the Versar data were used to determine the TSS daily maximum of 45 mg/1. So, unless the use of the data is harmless, regulations based upon it must be set aside if EPA’s use of the data was not in accordance with law. We think the regulations are invalid for the reasons which follow. The June 10, 1976 “interim final regulations,” although effective immediately, provided for a public comment period extending until August 9, 1976, 41 F.R. 23553, and NCSA was afforded an additional period in which to comment. NCSA took advantage of this opportunity by filing written comments with EPA. After the close of the comment period and a public hearing held on December 2, 1976, however, on December 14-16, 1976 EPA’s contractor, Versar, Inc., visited EPA’s regional headquarters in Atlanta and Dallas and obtained NPDES discharge monitoring reports for various crushed stone operations. This survey, referred to as the Versar data, was completed on February 25, 1977, and on March 15, 1977 the EPA met with some representatives of the crushed stone industry, including NCSA, at which meeting the Versar data were mentioned in the conversation. This was not a public meeting or hearing but was nothing more than a conference held at the request of some members of the industry affected. Petitioners have provided affidavits from participants at the March 15th meeting which show that while the data were discussed at this meeting, they were not made available to the industry for study and analysis. In addition, although industry representatives at the meeting on March 15th requested that they be afforded access to the Versar data, the EPA refused to make the data available until after promulgation of the final regulations. EPA has not filed counter affidavits but has related in its brief that “NCSA was shown the discharge monitoring data compiling the ‘Versar data’ ”. Thus, we are confronted with a fact situation on all fours with that considered by this court in Appalachian Power Co. v. EPA, 579 F.2d 846 (4th Cir. 1978). There, we held that upon an affidavit presented by EPA, petitioners not offering any, in the absence of counter affidavits we would be “unwilling to conclude that the statements in the affidavits are false.” At 853, n. 15. The same result should obtain here, and we thus accept as correct the statements in petitioners’ affidavits that they were not afforded an opportunity to examine, analyze, and comment on the Versar data. The various internal memoranda relied upon by EPA do not contradict the affidavits. The fact situation so presented to us is very nearly the same as that presented in Portland Cement Assoc. v. Ruckelshaus, 158 U.S.App.D.C. 308, 486 F.2d 375 (1973), in which case the court set aside certain EPA regulations. Prior to the promulgation of the regulations there set aside, the court had remanded to EPA previous regulations because test information upon which the previous regulations had been based was refuted by an engineer experienced in the subject. On remand, instead of commenting on the conclusions of the engineer upon which the remand was based, EPA merely added that analysis to the record. The court set aside the regulations, finding that the comment offered by the industry affidavits was of possible significance in the results of the test. In its discussion of the case, the court said that it found “. a critical defect in the decision making process in arriving at the standard under review in the initial inability of the petitioners to obtain — in timely fashion — the test results and procedures used in existing plants which formed a partial basis for the emission control level adopted, and in the subsequent seeming refusal of the agency to respond to what seem[s] to be legitimate problems with the methodology of those tests.” 158 U.S.App.D.C. p. 325, 486 F.2d p. 392. The court also stated that “it is not consonant with the purpose of a rule making proceeding to promulgate rules on the basis of inadequate data or on data that [to] critical degree is known only to the agency.” While the second rule just stated was apparently applied by that court in its initial remand proceeding, it is applicable here. EPA admittedly has relied on the Versar data in promulgating the TSS regulations at issue. At the time the regulations were being formulated, only EPA knew about the data in detail. Our case and Portland Cement are no different in that respect. The first rule above mentioned also is applicable to this case. Although the petitioners, or some of them at least, were at the meeting on March 15th, the refusal of the agency to make the actual data available to those immediately affected by it cannot be excused. The. comments of the industry following the promulgation of the interim final regulations and at the December hearing could not have anticipated use of the Versar data because the same had not even been collected by Versar at that time. We need not, however, place sole reliance on Portland Cement in deciding to remand. We have held in duPont v. Train, 541 F.2d 1018 (4th Cir. 1976), and Appalachian Power Co., 477 F.2d 495 (4th Cir. 1973), that an agency engaged in rule making must “explicate fully its course of inquiry, its analysis and its reasoning.” 541 F.2d at 1026, 477 F.2d at 507. In the case before us, EPA candidly admits that “the development document does not discuss the calculation process by which the agency arrived at the monthly average limit.” That amounts to no less than an admission that the regulation is invalid unless something else appears to render the omission harmless. While EPA, in its brief, does attempt to justify “the path of the administrator’s reasoning,” it has shown us no reason not to apply our holding in duPont that “after the fact rationalization by counsel in brief and argument does not cure non-compliance by the Agency with the stated principles.” 541 F.2d at 1026. See also Portland Cement at p. 395. The justification offered by EPA in its brief for its failure to give the reasoning behind the new TSS standards is that the 25 mg/1 daily limit was a monthly average from the Versar data, and that the 45 mg/1 daily maximum was an increase sought by industry. The last of the reasons given by EPA is insufficient on its face, for the comments by industry seeking a higher daily maximum discharge limit were in the context of the interim final regulations which had rejected an average discharge limit in favor of a limit for each day. What industry sought was a higher limit for each day, which in fact was effectively lowered on a monthly basis by the new regulation. More importantly, however, the petitioners never had a chance to respond to the Versar data before the promulgation of the final regulations. This is not consistent with the requirements of law. See Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 288, n. 4, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974), and Granite City Steel Co. v. EPA, 501 F.2d 925 (7th Cir. 1974). EPA argues that in all events the use of the Versar data, however, is harmless because the increase in the maximum limit for any one day from 30 to 45 mg/1 more than compensates for the imposition of a monthly maximum average of 25 mg/1, so that, in fact, EPA increased the discharge limits rather than decreased them. The industry contests this conclusion, and EPA calls our attention to no data to corroborate its position. Following the promulgation of the final regulations, the petitioners did very much the same as the petitioners in Portland Cement. They secured a report by an engineer who was an expert in the field, who took serious issue with the Versar data base on more than one ground. In his opinion the data were insufficient upon which to base the new regulations in many respects, among them: from a practical operating standpoint, the final regulations are more restrictive than the interim final regulations; EPA did not consider the technical feasibility or economic impact of the increase in settling pond size caused by discharging at 25 mg/1 rather than 30 mg/1; seventy-five percent of the permits surveyed were in three States, and over 50 percent in two States, although the industry is scattered nationwide and conditions differ widely; the types of rock mined in the quarries from which the Versar data came was not typical of all of the industry, especially the settling characteristics of the rock from which the Versar data came might well be different from rock in other parts of the country, and as well the settling characteristics in different climates are different; the Versar memorandum does not state the adequacy of its data for statistical analysis; the TSS limitations were arbitrarily selected without benefit of a statistical basis. The objections go on and on, but enough have been related to show that they are far from frivolous, and while EPA will undoubtedly take issue with the report of the engineer, we need not, and do not, decide whether the objections raised in the engineer’s report are valid. What we do decide is that the mistakes in the use of the Versar data, if any mistakes there were, were shown by the report to be of possible significance in the formulation of the final regulations. Portland Cement at p. 394. The engineer’s report we have referred to raises significant questions as to the statistical validity of the Versar data, as well as to whether or not the data from that limited base could reliably be used in formulating national regulations. The fact that the petitioners, and just as importantly the fact that the public, had no opportunity to comment on the use of the Versar data prior to the promulgation of the final regulations in the face of serious questions concerning the validity of their use is reason to remand the regulations for further consideration. When this is coupled with the fact that the Agency admits that it did not explain the reasons for its actions, the obvious question arises as to whether or not they could have been justified in the record before the Agency. We remand the TSS limitations to the Agency for reconsideration. Recycling Provisions The next point which we consider is the contention that the recycling provisions (42 F.R. 35850-1, §§ 436.22(a)(1), 436.-32(a)(1)) of the final regulations are invalid. Recycling was not mentioned in any way in the interim final regulations, and there was no requirement in them to recycle. The word simply does not appear. It is true that in the technical summary accompanying the interim final regulations in connection with zero discharge for process generated waste water that recycling was mentioned as an available technology. Also, for construction sand and gravel facilities, recycling was apparently contemplated as a requirement for discharge of process generated waste water when commingled with mine water. Recycling was also referred to as a treatment technology in the economic analysis. But the recycling technology for construction sand and gravel facilities was specifically rejected for the interim final regulations in that the technical summary provided that “treatment other than single settling ponds followed by recycling may be the only economically viable technology.” With the technical summary which is at least confusing, the interim final regulations themselves specifically provided, for construction sand and gravel facilities, that process generated waste water, when commingled with other waste water, could be discharged without recycling providing the numbered effluent limitations were met. The case was not quite the same in the interim final regulations for the crushed stone facilities. The interim final regulations contemplated that process generated waste water be kept separate from other waste water, and while providing a zero discharge limit for process generated waste water, allowed discharge of mine dewater-ing water providing the numbered effluent limitations were met. Comments from the industry on the no discharge provision for process generated waste water, as EPA acknowledges, sought to provide for the crushed stone industry the same right to discharge the commingled waters that EPA had allowed the construction sand and gravel industry in the interim final regulations without recycling. With this background, the final regulations were promulgated. Petitioners make a multitude of objections to them, of which we will discuss only a few. First, the term recycle is not defined in the regulations. This may seem somewhat remarkable because the recycling requirement is acknowledged to be a major change between the interim final and the final regulations. This aside, nowhere in the regulations can it be found what part or what volume of the process generated waste water must be recycled to get the benefit of the discharge provisions. If petitioners claim, as EPA claims that they do, that total recycling is required, that term is not defined. If the requirement is partial recycling as EPA claims, then that term is not defined. There simply is no definition. EPA claims in its brief that the answer is apparent, that “all the water used in the industrial process must be obtained from the treatment system itself.” But then it adds that “excess water can be treated prior to discharge,” referring to the addition of water from outside the mine to use in the industrial process. If this is a definition, it is not found in the regulations, rather in the brief. The fact that the regulations do not define recycling may well make them void for vagueness under our decision in duPont, at p. 1033, where we set aside an EPA regulation because we were “not sure what it means in the context in which it is used.” That reasoning might well apply here even if this were the only objection, but there is a more basic fundamental objection to the recycling requirement. We take it from all the record in this case that in the usual wet operation for both crushed stone and construction sand and gravel that the water used in the industrial process, generally speaking, comes from within the mine or quarry, whether it be from a settling pond or from some other source. Assuming only that fact, then, the petitioners claim, and EPA points to nothing in the record to refute the fact, that the recycling requirement results in not one bit less discharge of pollutants into the navigable streams than the technology which petitioners claim should be the best practicable, that is allowing settling and discharge without recycling. In its brief, EPA argues that this claim of petitioners is without merit because some water may be lost by evaporation and some may be carried off on the product. But it points to no technical data to support its argument. Without the benefit of an engineering opinion on the point, it would seem to us that if water is used to wash the stone or the sand and the water comes from within the mine, whether from settling pond or otherwise, that the same amount of water is going to be carried out on the finished product regardless of whether it is pumped from the settling pond or from somewhere else. Also, if there is a given amount of water within the mine from whatever source, and evaporation takes place from exposed surface areas, including the industrial process, explanation is required to show why any more water would evaporate in a system Question: What is the total number of appellants in the case that fall into the category "natural persons"? 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. Lawrence RICE and Walter Chipman, Appellants, v. UNITED STATES of America, Appellee. No. 17933. United States Court of Appeals Eighth Circuit. Feb. 28, 1966. Herbert M. Wachtell, of Wachtell, Lipton, Rosen, Katz & Kern, New York City, made argument for appellants and filed brief with James J. Courtney, Jr., Duluth, Minn., Victor G. Hanson, Detroit, Mich., Don C. Miller, Cleveland, Ohio, and Alfred J. Weinberg, Duluth, Minn. Sidney P. Abramson, Asst. U. S. Atty., Minneapolis, Minn., and Patrick J. Foley, Asst. U. S. Atty., Minneapolis, Minn., made argument for appellee and filed brief. Before VAN OOSTERHOUT, BLACK-MUN and MEHAFFY, Circuit Judges. MEHAFFY, Circuit Judge. Defendants, Lawrence Rice and Walter Chipman,- were convicted by a jury on Count II of a multicount indictment charging conspiracy to intimidate and impede witnesses in a proceeding before the National Labor Relations Board by the use of threats and force in violation of 18 U.S.C.A. §§ 371 and 1505. Co-defendants Kevin Ryan and Donald Bensman were acquitted on all counts. Count II specifically noted twenty-three overt acts of intimidation of Edward Jameros, William Babbitt and Charles Corlett, commencing July 1, 1962 and continuing through October 4, 1962. The alleged acts ranged from telephone threats to physical assaults on the persons of Jameros, Corlett and Albert Shinski. The record evidence comprises several volumes despite the absence of any testimony or evidence in behalf of defendants. A complete summary is unnecessary and we recite only the salient facts. Rice was a patrolman for the Atlantic, Gulf, Lakes and Inland Waters District of the Seafarers International Union (SIU). Ryan was an organizer and Bens-man was Duluth port agent for the SIU’s Great Lakes District beginning August, 1962. Chipman, Jameros, Babbitt, Cor-lett and Shinski were all seamen and members of the Great Lakes District of SIU. On July 23, 1962, Jameros and Babbitt filed individual charges with the NLRB against Dunbar and Sullivan Dredge Company and the Inland Boatmen’s Union (IBU), asserting discrimination in shipping assignments. In “early August” Babbitt was visited at his home in Duluth by Rice, Chipman and a man known only to Babbitt as “Smoky”. Babbitt “wasn’t exactly asked to drop the charge,” but either Rice or Chipman “said it looked like kind of bad publicity * * for the union, brother members fighting amongst theirselves and internal arguments and stuff like that.” On August 4,1962, Chipman telephoned Jameros in Duluth and asked that he drop his charges. Chipman added that the IBU was upset about the charges and that if Jameros would go to Detroit and contact a certain SIU official, Jameros might “get a ship out of it.” On August 8, 1962, following a conference with union officials and a representative of the NLRB, both Jameros and Babbitt withdrew the charges upon assurance by the NLRB representative that the papers would be kept in a closed file and could be reinstated at some future date if desired. In “mid-September” of 1962, Chipman, Rice and Ryan visited Corlett in the latter’s home. Corlett indicated he might go to the Labor Board in an effort to get back on the dredges- and was advised by Chipman that “it wouldn’t be very smart to go to the Labor Board.” The conversation was animated and without threats. Evidently feeling that they were continuing to be passed over for jobs in favor of IBU members, Jameros and Corlett filed additional charges with the NLRB on September 26, 1962. These later charges were withdrawn on October 11, 1962 after Jameros and Corlett were brutally assaulted at the union hall in Duluth, Minnesota on October 1. On September 30,1962, four days after Jameros and Corlett filed the later charges, Rice and Chipman, accompanied by Dale Lucia, drove from Alpena, Michigan to Duluth, Minnesota, for the ostensible purpose of picketing a Hanna Company ship, the Weir. The trio registered at a hotel in Duluth and the next morning, October 1, met with Ryan and Bensman who accompanied them to Superior, Wisconsin to search for the Weir. Finding neither the Weir nor any other Hanna vessel, the group returned to Duluth where they shot pool and went to a movie before going to the union hall about 6:00 p. m. Rice, Chipman and Lucia remained in an unlighted area adjacent to the hall while Ryan attended and Bensman officiated. Without relating the specific statements, at least an inference arises indicating that special efforts were made to see that Jameros and Corlett were in attendance. At the meeting a discussion began concerning seamen filing charges with the NLRB. It soon turned into a heated argument with Ryan cursing Cor-lett for taking his grievances to the Labor Board and concluding with Ryan knocking Corlett to the floor where “they put the boots to [him].” Jameros was hit in the face by Rice who along with Chip-man and Lucia had entered from the adjacent room. Jameros saw the blow coming and ascertained that Rice had a metal band around his hand. About this time, someone yelled, “brass knucks.” Jameros regained consciousness in a Duluth hospital an hour and ten minutes after the blow. Rice was heard to remark, “[t]his is what’s going to happen to any finks that goes before the National Labor Board with any beefs. The SIU will handle their own beefs.” Rice, Chip-man and Lucia then drove nonstop back to Alpena, Michigan. The intimidation that previously had been confined to suggestive threats ripened into brutal force and undoubtedly resulted in the accomplishment of its purpose, for thereafter on October 11, 1962 Jameros and Corlett withdrew the charges filed with the Labor Board. In the interim Chipman, on October 4, hit Shinski who had also been complaining of being passed over in job assignments and who had attended the original meeting that resulted in withdrawal of the first two charges. Shinski received a cut over his eye requiring several sutures. Jameros withdrew his charges because “[he] was scared, and * * * wanted to get enough time * * * [to] get out, take [his] family out, and try to protect [himself] and family as much as possible.” Corlett, who was a reluctant witness, was also afraid when he accompanied Jameros to the hospital after the attack in the union hall. He made efforts to obtain a gun permit through an enforcement officer for the NLRB and when advised that this would be impossible, Cor-lett refused to relate the details of the fistic encounter and the following day withdrew his charges. Since withdrawal of the second charges, no further action was presented to or taken by the Labor Board. A crucial question is presented as to whether, within the meaning of § 1505, there was a proceeding pending before the Labor Board, so as to constitute a basis for criminal indictment. For reasons herein- ■ after stated, we hold that there was a proceeding pending before the Labor Board. Defendants argue that the indictment does not allege an offense, as only a charge, as opposed to a formal complaint by the general counsel, had been filed before the Labor Board; thus, it is maintained there was no “proceeding pending” before the Board. The Government counters with the assertion that the Board’s regulations demonstrate that a “proceeding” was pending and additionally submit that the requirement of a pending proceeding under § 1505 is not applicable since the defendants were convicted for a conspiracy to violate the criminal statute rather than the substantive crime. On this issue, the answer lies in the meaning of the term “proceeding” as used by the Congress in the enactment of § 1505. In construing statutes, this court will give the words of the statute their plain meaning unless there is a compelling reason to ascribe some different meaning to the language used by Congress. We said in Sternberg Dredging Co. v. Walling, 158 F.2d 678, 681 (8th Cir. 1946): “In the interpretation of a statute its words are to be taken according to the meaning given them in common useage, unless to do so produces an absurd result or one which defeats the purpose for which the Act was passed.” “Proceeding” is a comprehensive term meaning the action of proceeding— a particular step or series of steps, adopted for accomplishing something. This is the dictionary definition as well as the meaning of the term in common parlance. Proceedings before a governmental department or agency simply mean proceeding in the manner and form prescribed for conducting business before the department or agency, including all steps and stages in such an action from its inception to its conclusion. In our view, it would be absurd to hold that Congress meant to proscribe interference with the administrative process only after a Labor Board proceeding had reached a certain formal stage and let go unpunished individuals who obstruct earlier preliminary proceedings by frightening witnesses into withdrawing charges out of fear for their lives. Congress clearly intended to punish any obstruction of the administrative process by impeding a witness in any proceeding before a governmental agency — at any stage of the proceedings, be it adjudicative or investigative. Congress did not limit the term “proceeding” as used in § 1505 to only those acts committed after a formal stage was reached, and we cannot so limit the term. It is singular to note that the Labor Board’s regulations refer to its investigative aspects as being “proceedings.” The pertinent language of the regulations is “in the investigation and in all other stages of the proceedings * * *.” Rule 29 C.F.R. 101.4 (emphasis supplied) Governmental agency proceedings frequently embrace both investigative and adjudicative proceedings. This is referred to by the Supreme Court in Hannah v. Larche, 363 U.S. 420, 446, 80 S.Ct. 1502, 4 L.Ed.2d 1307 (1960). The issue here was not present in Hannah, but it is noted that Chief Justice Warren referred to both investigative and adjudicative actions as being “proceedings.” Defendants point out that some courts, e. g. United States v. Scoratow, 137 F.Supp. 620 (W.D.Pa.1956), have held that to constitute an offense under 18 U.S.C.A. § 1503, the act must relate to a proceeding pending in the federal courts— and that a proceeding is not pending in the federal courts until a formal complaint has been filed with the United States commissioner. Reference to the procedures before the Labor Board and a United States court readily discloses that cases dealing with § 1503 do not answer the question of when a Labor Board proceeding becomes pending. A formal complaint is necessary to commence proceedings before a federal court. Such is not the case with proceedings before the Labor Board. The Labor Board regulations, 29 C.F.R. 101.2 et seq., provide for the initiation of an unfair labor charge case by a filing of a charge in writing with the regional director. The charge must be signed and sworn to be true. The charge must contain a statement of facts constituting the alleged unfair labor practices. When the charge is received in the regional office, it is filed, docketed and assigned a case number. A copy is served upon the person against whom the charge is made. The regional director then requests the charging party to promptly submit evidence in support thereof and the charged party is asked to submit a statement of his position. Then the case is assigned to a member of the field staff for investigation. If the investigation reveals no violation or an insufficiency of evidence, the regional director recommends withdrawal. If the charging party refuses to withdraw, the regional director dismisses the charge, whereupon the charging party has the right to appeal to the general counsel in Washington, D. C. Thereupon the entire file is sent to Washington for review. The general counsel may sustain the regional director or remand and direct him to take further action. Before issuing a formal complaint, the regional director affords all parties an opportunity to make offers of settlement or proposals of adjustment. Normally, at this stage, pre-hearing conferences are held and if efforts to dispose of the case by informal adjustment are unsuccessful, the regional director may institute formal action by issuance of a formal complaint and notice of a hearing thereon. Even after issuance of the formal complaint, the parties are afforded full opportunity to dispose of the case by amicable adjustment. Fed.R.Crim.P. 3 describes a complaint before a commissioner as follows: “The complaint is a written statement of the essential facts constituting the offense charged. It shall be made upon oath before a commissioner or other officer empowered to commit persons charged with offenses against the United States.” Thus, it is seen that there is no material difference between a complaint filed with the United States commissioner and an unfair labor charge filed with the Labor Board. Each is a written statement of the essential facts constituting the offense charged. Each is made upon oath. The Labor Board charge is docketed, given a case number, served on the opposing party, and both parties requested to present relevant evidence. The filing of the formal complaint with the commissioner and the filing of the unfair labor practice charge with the Board are followed by investigative procedures. If the filing of the complaint initiates a proceeding in the court, then most certainly the filing of an unfair labor charge commences a proceeding before the Labor Board. The precise issue here apparently has never been squarely passed upon by any court. The case of Pettibone v. United States, 148 U.S. 197, 13 S.Ct. 542, 37 L.Ed. 419 (1893), has been cited, but as Judge Biggs said in United States v. Perlstein, 126 F.2d 789, 794 (3rd Cir. 1941), cert. denied, 316 U.S. 678, 62 S.Ct. 1106, 86 L.Ed. 1752 (1942): “In the Pettibone case a proceeding was pending and the pendency or non-pendency of a proceeding was not an issue.” We have read with interest the numero-sity of cases cited by the parties but find none controlling. Most of them deal with § 1503. As has been indicated, the filing of a charge before the Labor Board is the practical equivalent to the filing of formal complaint with a United States commissioner. Thereafter, the procedures differ by reason of the opportunity afforded the parties in labor cases for conciliation of their differences in order to bring about an amicable settlement. In any event, if any § 1503 case could be construed to conflict with our holding here, we would not choose to follow it. The case of Taran v. United States, 266 F.2d 561 (8th Cir. 1959), involves § 1505, but it neither supports defendants’ argument nor conflicts with the conclusion we reach here. Taran was a two-pronged case as one count involved a deportation proceeding and another related to a naturalization proceeding. Nothing in the deportation proceeding has any remote bearing on the issue here. On. the naturalization proceeding, this court held that if any proceeding was pending at all, it was a proceeding pending only in Florida. This is a venue question having no relevance to the instant case. Additionally, however, this court held that there was no proceeding pending in 1955 merely because a preliminary and incomplete application for naturalization had been filed in 1951 and returned in 1951 with the request that it not be submitted until all required documents accompanied it. Both the agency and the agent regarded the preliminary and incomplete application as not having ever been submitted, and accordingly, this court held there was no proceeding pending before the Immigration and Naturalization Service at the time of the charged offense. United States v. Batten, 226 F.Supp. 492 (D.D.C.1964), cert. denied, 380 U.S. 912, 85 S.Ct. 898, 13 L.Ed.2d 799 (1965), is perhaps the closest of kin from a factual standpoint to the case at bar. There, the defendant was charged under § 1505 with interference with a witness before a Securities and Exchange Commission investigative proceeding. In denying defendant’s motion for acquittal, Judge Holtzoff noted at pages 493-494: “The Court is not unmindful of the doctrine that a criminal statute should be strictly construed. There is, however, a corollary to that principle, namely, that even a criminal statute should not be interpreted so narrowly as to defeat the purpose and intent of the legislative body that enacted it. “The word ‘proceeding’ is a term of very broad scope. For example, a preliminary hearing before a United States Commissioner is a proceeding, even though there has been no indictment as yet. The statute authorizing the action taken by the Commission specifically empowers investigations to be conducted and witnesses to be sworn at such investigations. This is more than a mere police investigation, as counsel has termed it. To say that a person may not be punished under this statute for inducing a witness to commit perjury at such an investigation, in which an oath is administered by authority of law, and to limit the statute only to formal hearings before an Examiner or a member of the Commission, would defeat a part of the purpose of Congress. “The Court, therefore, reaches the conclusion that the term ‘proceeding’ as used in 18 U.S.C. § 1505, should be construed broadly enough to include any investigation directed by a formal order of the Commission, at which a designated officer takes testimony under oath. * * * “Section 1505 prohibits any endeavor to influence, intimidate or impede any witness in any proceeding before any department or agency of the United States. This provision is broad enough to cover any activity which would influence or intimidate a witness who might be called to testify; it is not limited to a witness who has been called to testify under oath and to a case in which the defendant knew that particular fact.” Since we rule that there was a proceeding pending here before the National Labor Relations Board, it is unnecessary to reach or discuss the Government’s theory based upon United States v. Perlstein, supra, that the statutory requirement of a pending proceeding under the substantive act is not required by the conspiracy statute. The next question we consider and that upon which we reverse involves a communication between the judge and the jury after submission of the case to the jury and during its deliberations. Neither defendants nor their counsel were present nor were they advised that the jury had requested additional instructions. The affidavits filed in support of defendants’ motion for a new trial revealed that after receiving the case on Friday afternoon, June 5, 1964, the jury was still in deliberation and apparent deadlock on either Saturday afternoon or Sunday morning. Subsequently a note was prepared by the foreman and delivered by the bailiff to the judge in his chambers. The note inquired if the jury could be “undecided” as to certan counts, to which the bailiff orally relayed the judge’s answer that defendants must be found either guilty or not guilty on each count. The transmission of the note and the substance of the bailiff’s oral reply are not contested; rather the Government argues that the communication did not prejudice defendants as it did not induce the jury’s verdict. Support for this contention is begged by the jury’s failure to resolve its differences as deliberations continued until noon Sunday, June 7, when, still being hung, the jury was called into court and in the presence of defendants and counsel given an alleged “Allen plus” instruction which did effect a verdict within approximately one and one-half to two hours. Defendants rely on Shields v. United States, 273 U.S. 583, 47 S.Ct. 478, 71 L.Ed. 787 (1927), as standing on all fours with the case at bar. In Shields, the jury sent the following communication to the judge in chambers: “We, the jury, find the defendants John G. Emmerling, Charles Lynch not guilty on all counts. E. W. Hardison, J. E. Hunter, and J. L. ■Simler guilty on all counts. Daniel J. Shields, Harry Widman, J. M. Gastman unable to agree. [Signed] E. B. Milligan, Foreman.” Id. at 584, 47 S.Ct. at 478. The judge from his chambers sent back the following written reply: “The jury will have to find also whether Shields, Widman, and Gast-man are guilty or not guilty. F. P. Sehoonmaker, Judge.” Id. at 584, 47 S.Ct. at 478. These communications were not made in open court and neither Shields nor his counsel was present. “Shortly after,” the jury returned a verdict of guilty as to Shields and the other two petitioners about whom there had been no original agreement. The Government was unable to find any satisfactory ground for opposing petition for writ of certiorari and filed no brief in opposition. The following language was quoted from Fillippon v. Albion Vein Slate Co., 250 U.S. 76, 81, 39 S.Ct. 435, 63 L.Ed. 853 (1919): “ ‘Where a jury has retired to consider of its verdict, and supplementary instructions are required, either because asked for by the jury or for other reasons, they ought to be given either in the presence of counsel or after notice and an opportunity to be present; and written instructions ought not to be sent to the jury without notice to counsel and an opportunity to object.’ ” 273 U.S. at 588, 47 S.Ct. at 479. The Court then concluded: “If this be true in a civil case, a fortiori is it true in a criminal case ? The request made to the court jointly by the counsel for the defendant and for the government [to the court] did not justify exception to the rule of orderly conduct of jury trial entitling the defendant, especially in a criminal case, to be present from the time the jury is impaneled until its discharge after rendering the verdict.” 273 U.S. at 588-589, 47 S.Ct. at 479. The judgment was reversed without reference to the other assignments of error which included that the instruction communicated to the jury that petitioners must be found either guilty or not guilty was erroneous, and that the direction to the jury to bring in a verdict of guilty or not guilty as to the three defendants named had the effect of coercing the jury into rendering a verdict which they were plainly reluctant to return. Defendants claim that because the Court in Shields reversed solely on the ground that petitioner and his counsel were absent when a communication passed from the judge to the jury we should likewise refuse any consideration of whether defendants were, in fact, prejudiced, and hold as a matter of law that such communications amounted to the “denial of a right so fundamental as necessarily to affect the substantial rights of the defendant regardless of the nature or propriety of the instruction given.” Arrington v. Robertson, 114 F.2d 821, 823 (3rd Cir. 1940); Snyder v. Lehigh Valley R. R., 245 F.2d 112 (3rd Cir. 1957); Jones v. United States, 308 F.2d 307 (1962); accord, Smith v. Ellerman Lines, 247 F.2d 761, 765 (3rd Cir. 1957); cf. United States v. Kram, 247 F.2d 830 (3rd Cir. 1957); Walker v. United States, 116 U.S.App.D.C. 221, 322 F.2d 434, 435-436 (D.C.Cir.1963), cert. denied, 375 U.S. 976, 84 S.Ct. 494, 11 L.Ed.2d 421 (1964). It cannot be gainsaid that it constitutes error for a trial court in a criminal case to instruct the jury outside the presence of a defendant and his counsel. However, most courts now hold that the presumption of prejudice resulting from such error is a rebuttable one and in some instances may be overcome by evidence giving a clear indication of lack of prejudice. This court has consistently followed this rule. In Chambers v. United States, 237 F. 513 (8th Cir. 1916), a deputy marshal answered the jury’s inquiry concerning the normal penalty following a recommendation of mercy. We held that: “ * * * [T}he stronger reasons and the weight of authority sustain the rule that, where a motion for a new trial is made on account of communications to the jury during their deliberations, there is a rebuttable legal presumption that they were prejudicial to the moving party, that this presumption may in some cases be overcome by evidence, and that where competent evidence is offered it is the duty of the trial court to hear and consider it, and that when it does so, and decides the motion thereon, its decision is discretionary, and is reviewable by a federal appellate court for abuse of discretion only.” Id. at 521. A new trial was denied as the Government was able to produce substantial evidence that defendant was not prejudiced by showing that the jury’s verdict had been reached before the statements by the deputy marshal. Mattox v. United States, 146 U.S. 140, 148-150, 13 S.Ct. 50, 36 L.Ed. 917 (1892); Wheaton v. United States, 133 F.2d 522 (8th Cir. 1943); accord, Ray v. United States, 114 F.2d 508 (8th Cir. 1940), cert. denied, 311 U.S. 709, 61 S.Ct. 318, 85 L.Ed. 461 (1940). In the instant case, the Government produced no evidence or affidavits to show that defendants were not prejudiced by the judge’s instruction made in their absence. Rather, the Government offers the record, comprising some two thousand pages, for our examination in apparent hope that we will provide that which it failed to produce when the hearing was had on the motion for new trial. We have carefully canvassed the record and find nothing therein remotely indicating a lack of prejudice. As for the Government’s argument that the statements were not coercive and, therefore, did not affect the verdict, we find little merit. See Jenkins v. United States, 380 U.S. 445, 85 S.Ct. 1059, 13 L.Ed.2d 957 (1965). In Jenkins, after slightly more than two hours’ deliberation, the jury advised the trial judge that it was unable to agree “on both counts because of insufficient evidence.” The judge recalled the jury and in the course of his response stated, “You have got to reach a decision in this case.” The instruction was given in open court in the presence of defendant and his counsel after which the jury retired to their homes overnight and continued deliberating the next morning before reaching a verdict. The Supreme Court, per curiam, held “upon review of the record, we conclude that in its context and under all the circumstances the judge’s statement had the coercive effect attributed to it.” In the case at bar, the jury deliberated for a considerable length of time and returned a verdict only after the “Allen plus” instruction had been given. We are not clairvoyant and have no way of knowing the effect of the judge’s communication with the jury. This was a multicount indictment, and, for all we know, the jury could have been in disagreement as to Count II — the count upon which the guilty verdict was returned. We will not second-guess the jury. Since our reversal requires a new trial, it would serve no useful purpose to discuss other issues presented by this record. The judgment is reversed and the cause is remanded for new trial. . 18 U.S.C.A. § 371: “If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined not more than $10,000 or imprisoned not more than five years, or both.” 18 U.S.C.A. § 1505: “Whoever corruptly, or by threats or force, or by any threatening letter or communication, endeavors to influence, intimidate, or impede any witness in any proceeding pending before any department or agency of the United States, or in connection with any inquiry or investigation being had by either House, or any committee of either House, or any joint committee of the Congress * * *. ***** “Shall be fined not more than $5,000 or imprisoned not more than five years, or both.” . Dale Lucia, also a seaman and member of the Great Lakes District of the SIU, was named as a coconspirator but was not indicted. . See Webster’s Third New International Dictionary. . 18 U.S.C.A. § 1503. “Whoever corruptly, or by threats or force, or by any threatening letter or communication, endeavors to influence, intimidate, or impede any witness, in any court of the United States or before any United States commissioner or other committing magistrate, or any grand or petit juror, or officer in or of any court of the United States, or officer who may be serving at any examination or other proceeding before any United States commissioner or other committing magistrate, in the discharge of his duty, or injures any party or witness in his person or property on account of his attending or having attended such court or examination before such officer, commissioner, or other committing magistrate, or on account of his testifying or having testified to any matter pending therein, or injures any sueh grand or petit juror in his person or property on account of any verdict or indictment assented to by him, or on account of his being or having been sueh juror, or injures any such officer, commissioner, or other committing magistrate in his person or property on account of the performance of his official duties, or corruptly or by threats or force, or by any threatening letter or communication, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice, shall be fined not more than $5,000 or imprisoned not more than five years, or both.” . Allen v. United States, 164 U.S. 492, 501-502, 17 S.Ct. 154, 41 L.Ed. 528 (1896). . For discussion of Fed.R.Crim.P. 43 and 52(a), see Walker v. United States, supra, and cases there cited. Walker points out that “ [p] ractically all cases holding that a violation of Rule 43 is reversible error involved situations where it was decided there was resultant prejudice or a reasonable possibility thereof.” íd., 322 F.2d at 435-436. (Citing Shields.) . The complete instruction given by the trial court is found in Judge Wright’s dissent, 117 U.S.App.D.C. 346, 330 F.2d 220, 221 (1964). 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:
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. ENCINO MOTORCARS, LLC, Petitioner v. Hector NAVARRO, et al. No. 16-1362. Supreme Court of the United States Argued Jan. 17, 2018. Decided April 2, 2018. Paul D. Clement, Washington, DC, for Petitioner. James A. Feldman, Philadelphia, PA, for Respondents. Karl R. Lindegren, Todd B. Scherwin, Wendy McGuire Coats, Fisher & Phillips LLP, Los Angeles, CA, Paul D. Clement, George W. Hicks, Jr., Matthew D. Rowen, Kirkland & Ellis LLP, Washington, DC, for Petitioner. Keven Steinberg, Steinberg Law, Sherman Oaks, CA, James A. Feldman, Nancy Bregstein Gordon, University of Pennsylvania, Law School, Supreme Court Clinic, Philadelphia, PA, for Respondents. Justice THOMAS delivered the opinion of the Court. The Fair Labor Standards Act (FLSA), 52 Stat. 1060, as amended, 29 U.S.C. § 201 et seq., requires employers to pay overtime compensation to covered employees. The FLSA exempts from the overtime-pay requirement "any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles" at a covered dealership. § 213(b)(10)(A). We granted certiorari to decide whether this exemption applies to service advisors-employees at car dealerships who consult with customers about their servicing needs and sell them servicing solutions. We conclude that service advisors are exempt. I A Enacted in 1938, the FLSA requires employers to pay overtime to covered employees who work more than 40 hours in a week. 29 U.S.C. § 207(a). But the FLSA exempts many categories of employees from this requirement. See § 213. Employees at car dealerships have long been among those exempted. Congress initially exempted all employees at car dealerships from the overtime-pay requirement. See Fair Labor Standards Amendments of 1961, § 9, 75 Stat. 73. Congress then narrowed that exemption to cover "any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles, trailers, trucks, farm implements, or aircraft." Fair Labor Standards Amendments of 1966, § 209, 80 Stat. 836. In 1974, Congress enacted the version of the exemption at issue here. It provides that the FLSA's overtime-pay requirement does not apply to "any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles, trucks, or farm implements, if he is employed by a nonmanufacturing establishment primarily engaged in the business of selling such vehicles or implements to ultimate purchasers." § 213(b)(10)(A). This language has long been understood to cover service advisors. Although the Department of Labor initially interpreted it to exclude them, 35 Fed.Reg. 5896 (1970) (codified at 29 C.F.R. § 779.372(c)(4) (1971) ), the federal courts rejected that view, see Brennan v. Deel Motors, Inc., 475 F.2d 1095 (C.A.5 1973) ; Brennan v. North Bros. Ford, Inc., 76 CCH LC ¶ 33, 247 (E.D.Mich.1975), aff'd sub nom. Dunlop v. North Bros. Ford, Inc., 529 F.2d 524 (C.A.6 1976) (table). After these decisions, the Department issued an opinion letter in 1978, explaining that service advisors are exempt in most cases. See Dept. of Labor, Wage & Hour Div., Opinion Letter No. 1520 (WH-467) (1978), [1978-1981 Transfer Binder] CCH Wages-Hours Administrative Rulings ¶ 31,207. From 1978 to 2011, Congress made no changes to the exemption, despite amending § 213 nearly a dozen times. The Department also continued to acquiesce in the view that service advisors are exempt. See Dept. of Labor, Wage & Hour Div., Field Operations Handbook, Insert No. 1757, 24L04(k) (Oct. 20, 1987), online at https://perma.cc/5GHD-KCJJ (as last visited Mar. 28, 2018). In 2011, however, the Department reversed course. It issued a rule that interpreted "salesman" to exclude service advisors. 76 Fed.Reg. 18832, 18859 (2011) (codified at 29 C.F.R. § 779.372(c) ). That regulation prompted this litigation. B Petitioner Encino Motorcars, LLC, is a Mercedes-Benz dealership in California. Respondents are current and former service advisors for petitioner. Service advisors "interact with customers and sell them services for their vehicles." Encino Motorcars, LLC v. Navarro, 579 U.S. ----, ----, 136 S.Ct. 2117, 2121, 195 L.Ed.2d 382 (2016) (Encino I ). They "mee[t] customers; liste[n] to their concerns about their cars; sugges [t] repair and maintenance services; sel[l] new accessories or replacement parts; recor[d] service orders; follo[w] up with customers as the services are performed (for instance, if new problems are discovered); and explai[n] the repair and maintenance work when customers return for their vehicles." Ibid. In 2012, respondents sued petitioner for backpay. Relying on the Department's 2011 regulation, respondents alleged that petitioner had violated the FLSA by failing to pay them overtime. Petitioner moved to dismiss, arguing that service advisors are exempt under § 213(b)(10)(A). The District Court agreed with petitioner and dismissed the complaint, but the Court of Appeals for the Ninth Circuit reversed. Finding the text ambiguous and the legislative history "inconclusive," the Ninth Circuit deferred to the Department's 2011 rule under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Encino, 780 F.3d 1267, 1275 (2015). We granted certiorari and vacated the Ninth Circuit's judgment. We explained that courts cannot defer to the 2011 rule because it is procedurally defective. See Encino I, 579 U.S., at ---- - ----, 136 S.Ct., at 2125-2127. Specifically, the regulation undermined significant reliance interests in the automobile industry by changing the treatment of service advisors without a sufficiently reasoned explanation. Id., at ----, 136 S.Ct., at 2126. But we did not decide whether, without administrative deference, the exemption covers service advisors. Id., at ----, 136 S.Ct., at 2127. We remanded that issue for the Ninth Circuit to address in the first instance. Ibid. C On remand, the Ninth Circuit again held that the exemption does not include service advisors. The Court of Appeals agreed that a service advisor is a "'salesman' " in a "generic sense," 845 F.3d 925, 930 (2017), and is " 'primarily engaged in... servicing automobiles' " in a "general sense," id., at 931. Nonetheless, it concluded that "Congress did not intend to exempt service advisors." Id., at 929. The Ninth Circuit began by noting that the Department's 1966-1967 Occupational Outlook Handbook listed 12 job titles in the table of contents that could be found at a car dealership, including "automobile mechanics," "automobile parts countermen," "automobile salesmen," and "automobile service advisors." Id., at 930. Because the FLSA exemption listed three of these positions, but not service advisors, the Ninth Circuit concluded that service advisors are not exempt. Ibid. The Ninth Circuit also determined that service advisors are not primarily engaged in "servicing" automobiles, which it defined to mean "only those who are actually occupied in the repair and maintenance of cars." Id., at 931. And the Ninth Circuit further concluded that the exemption does not cover salesmen who are primarily engaged in servicing. Id., at 933. In reaching this conclusion, the Ninth Circuit invoked the distributive canon. See A. Scalia & B. Garner, Reading Law 214 (2012) ("Distributive phrasing applies each expression to its appropriate referent"). It reasoned that "Congress intended the gerunds-selling and servicing-to be distributed to their appropriate subjects-salesman, partsman, and mechanic. A salesman sells; a partsman services; and a mechanic services." Id., at 934. Finally, the Court of Appeals noted that its interpretation was supported by the principle that exemptions to the FLSA should be construed narrowly, id., at 935, and the lack of any "mention of service advisors" in the legislative history, id., at 939. We granted certiorari, 582 U.S. ----, 136 S.Ct. 890, 193 L.Ed.2d 783 (2017), and now reverse. II The FLSA exempts from its overtime-pay requirement "any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles, trucks, or farm implements, if he is employed by a nonmanufacturing establishment primarily engaged in the business of selling such vehicles or implements to ultimate purchasers." § 213(b)(10)(A). The parties agree that petitioner is a "nonmanufacturing establishment primarily engaged in the business of selling [automobiles] to ultimate purchasers." The parties also agree that a service advisor is not a "partsman" or "mechanic," and that a service advisor is not "primarily engaged... in selling automobiles." The question, then, is whether service advisors are "salesm[e]n... primarily engaged in... servicing automobiles." We conclude that they are. Under the best reading of the text, service advisors are "salesm[e]n," and they are "primarily engaged in... servicing automobiles." The distributive canon, the practice of construing FLSA exemptions narrowly, and the legislative history do not persuade us otherwise. A A service advisor is obviously a "salesman." The term "salesman" is not defined in the statute, so "we give the term its ordinary meaning." Taniguchi v. Kan Pacific Saipan, Ltd., 566 U.S. 560, 566, 132 S.Ct. 1997, 182 L.Ed.2d 903 (2012). The ordinary meaning of "salesman" is someone who sells goods or services. See 14 Oxford English Dictionary 391 (2d ed. 1989) ("[a] man whose business it is to sell goods or conduct sales"); Random House Dictionary of the English Language 1262 (1966) ("a man who sells goods, services, etc."). Service advisors do precisely that. As this Court previously explained, service advisors "sell [customers] services for their vehicles." Encino I, 579 U.S., at ----, 136 S.Ct., at 2121. B Service advisors are also "primarily engaged in... servicing automobiles." § 213(b)(10)(A). The word "servicing" in this context can mean either "the action of maintaining or repairing a motor vehicle" or "[t]he action of providing a service." 15 Oxford English Dictionary, at 39; see also Random House Dictionary of the English Language, at 1304 ("to make fit for use; repair; restore to condition for service"). Service advisors satisfy both definitions. Service advisors are integral to the servicing process. They "mee[t] customers; liste[n] to their concerns about their cars; sugges [t] repair and maintenance services; sel[l] new accessories or replacement parts; recor[d] service orders; follo[w] up with customers as the services are performed (for instance, if new problems are discovered); and explai[n] the repair and maintenance work when customers return for their vehicles." Encino I, supra, at ----, 136 S.Ct., at 2122. If you ask the average customer who services his car, the primary, and perhaps only, person he is likely to identify is his service advisor. True, service advisors do not spend most of their time physically repairing automobiles. But the statutory language is not so constrained. All agree that partsmen, for example, are "primarily engaged in... servicing automobiles." Brief for Petitioner 40; Brief for Respondents 41-44. But partsmen, like service advisors, do not spend most of their time under the hood. Instead, they "obtain the vehicle parts... and provide those parts to the mechanics." Encino I, supra, at ----, 136 S.Ct., at 2122 ; see also 1 Dept. of Labor, Dictionary of Occupational Titles 33 (3d ed. 1965) (defining "partsman" as someone who "[p]urchases, stores, and issues spare parts for automotive and industrial equipment"). In other words, the phrase "primarily engaged in... servicing automobiles" must include some individuals who do not physically repair automobiles themselves but who are integrally involved in the servicing process. That description applies to partsmen and service advisors alike. C The Ninth Circuit concluded that service advisors are not covered because the exemption simply does not apply to "salesm[e]n... primarily engaged in... servicing automobiles." The Ninth Circuit invoked the distributive canon to reach this conclusion. Using that canon, it matched "salesman" with "selling" and "partsma[n] [and] mechanic" with "servicing." We reject this reasoning. The text of the exemption covers "any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles, trucks, or farm implements." § 213(b)(10)(A). The exemption uses the word "or" to connect all of its nouns and gerunds, and "or" is "almost always disjunctive." United States v. Woods, 571 U.S. 31, 45, 134 S.Ct. 557, 187 L.Ed.2d 472 (2013). Thus, the use of "or" to join "selling" and "servicing" suggests that the exemption covers a salesman primarily engaged in either activity. Unsurprisingly, statutory context can overcome the ordinary, disjunctive meaning of "or." The distributive canon, for example, recognizes that sometimes "[w]here a sentence contains several antecedents and several consequents," courts should "read them distributively and apply the words to the subjects which, by context, they seem most properly to relate." 2A N. Singer & S. Singer, Sutherland Statutes and Statutory Construction § 47:26, p. 448 (rev. 7th ed. 2014). But here, context favors the ordinary disjunctive meaning of "or" for at least three reasons. First, the distributive canon has the most force when the statute allows for one-to-one matching. But here, the distributive canon would mix and match some of three nouns-"salesman, partsman, or mechanic"-with one of two gerunds-"selling or servicing." § 213(b)(10)(A). We doubt that a legislative drafter would leave it to the reader to figure out the precise combinations. Second, the distributive canon has the most force when an ordinary, disjunctive reading is linguistically impossible. Cf., e.g., Huidekoper's Lessee v. Douglass, 3 Cranch 1, 67, 2 L.Ed. 347 (1805) (Marshall, C.J.) (applying the distributive canon when a purely disjunctive reading "would involve a contradiction in terms"). But as explained above, the phrase "salesman... primarily engaged in... servicing automobiles" not only makes sense; it is an apt description of a service advisor. Third, a narrow distributive phrasing is an unnatural fit here because the entire exemption bespeaks breadth. It begins with the word "any." See Ali v. Federal Bureau of Prisons, 552 U.S. 214, 219, 128 S.Ct. 831, 169 L.Ed.2d 680 (2008) (noting the "expansive meaning" of "any"). And it uses the disjunctive word "or" three times. In fact, all agree that the third list in the exemption-"automobiles, trucks, or farm implements"-modifies every other noun and gerund. But it would be odd to read the exemption as starting with a distributive phrasing and then, halfway through and without warning, switching to a disjunctive phrasing-all the while using the same word ("or") to signal both meanings. See Brown v. Gardner, 513 U.S. 115, 118, 115 S.Ct. 552, 130 L.Ed.2d 462 (1994) (noting the "vigorous" presumption that, "when a term is repeated within a given sentence," it "is used to mean the same thing"). The more natural reading is that the exemption covers any combination of its nouns, gerunds, and objects. D The Ninth Circuit also invoked the principle that exemptions to the FLSA should be construed narrowly. 845 F.3d, at 935-936. We reject this principle as a useful guidepost for interpreting the FLSA. Because the FLSA gives no "textual indication" that its exemptions should be construed narrowly, "there is no reason to give [them] anything other than a fair (rather than a 'narrow') interpretation." Scalia, Reading Law, at 363. The narrow-construction principle relies on the flawed premise that the FLSA " 'pursues' " its remedial purpose " 'at all costs.' " American Express Co. v. Italian Colors Restaurant, 570 U.S. 228, 234, 133 S.Ct. 2304, 186 L.Ed.2d 417 (2013) (quoting Rodriguez v. United States, 480 U.S. 522, 525-526, 107 S.Ct. 1391, 94 L.Ed.2d 533 (1987) (per curiam )); see also Henson v. Santander Consumer USA Inc., 582 U.S. ----, ----, 137 S.Ct. 1718, 1725, 198 L.Ed.2d 177 (2017) ("[I]t is quite mistaken to assume... that whatever might appear to further the statute's primary objective must be the law" (internal quotation marks and alterations omitted)). But the FLSA has over two dozen exemptions in § 213(b) alone, including the one at issue here. Those exemptions are as much a part of the FLSA's purpose as the overtime-pay requirement. See id., at ----, 137 S.Ct., at 1725 ("Legislation is, after all, the art of compromise, the limitations expressed in statutory terms often the price of passage"). We thus have no license to give the exemption anything but a fair reading. E Finally, the Ninth Circuit relied on two extraneous sources to support its interpretation: the Department's 1966-1967 Occupational Outlook Handbook and the FLSA's legislative history. We find neither persuasive. 1 The Ninth Circuit first relied on the Department's 1966-1967 Occupational Outlook Handbook. It identified 12 jobs from the Handbook's table of contents that it thought could be found at automobile dealerships. See 845 F.3d, at 930. The Ninth Circuit then stressed that the exemption aligns with three of those job titles-"[a]utomobile mechanics," "[a]utomobile parts countermen," and "[a]utomobile salesmen"-but not "[a]utomobile service advisors." Ibid. The Ninth Circuit cited nothing, however, suggesting that the exemption was meant to align with the job titles listed in the Handbook. To the contrary, the exemption applies to "any salesman... primarily engaged in selling or servicing automobiles." It is not limited, like the term in the Handbook, to "automobile salesmen." And the ordinary meaning of "salesman" plainly includes service advisors. 2 The Ninth Circuit also relied on legislative history to support its interpretation. See id., at 936-939. Specifically, it noted that the legislative history discusses "automobile salesmen, partsmen, and mechanics" but never discusses service advisors. Id., at 939. Although the Ninth Circuit had previously found that same legislative history "inconclusive," Encino, 780 F.3d, at 1275, on remand it was "firmly persuaded" that the legislative history demonstrated Congress' desire to exclude service advisors, 845 F.3d, at 939. The Ninth Circuit was right the first time. As we have explained, the best reading of the statute is that service advisors are exempt. Even for those Members of this Court who consider legislative history, silence in the legislative history, "no matter how 'clanging,' " cannot defeat the better reading of the text and statutory context. Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 495, n. 13, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985). If the text is clear, it needs no repetition in the legislative history; and if the text is ambiguous, silence in the legislative history cannot lend any clarity. See Avco Corp. v. Department of Justice, 884 F.2d 621, 625 (C.A.D.C.1989). Even if Congress did not foresee all of the applications of the statute, that is no reason not to give the statutory text a fair reading. See Union Bank v. Wolas, 502 U.S. 151, 158, 112 S.Ct. 527, 116 L.Ed.2d 514 (1991). * * * In sum, we conclude that service advisors are exempt from the overtime-pay requirement of the FLSA because they are "salesm[e]n... primarily engaged in... servicing automobiles." § 213(b)(10)(A). Accordingly, we reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion. It is so ordered. Justice GINSBURG, with whom Justice BREYER, Justice SOTOMAYOR, and Justice KAGAN join, dissenting. Diverse categories of employees staff automobile dealerships. Of employees so engaged, Congress explicitly exempted from the Fair Labor Standards Act hours requirements only three occupations: salesmen, partsmen, and mechanics. The Court today approves the exemption of a fourth occupation: automobile service advisors. In accord with the judgment of the Court of Appeals for the Ninth Circuit, I would not enlarge the exemption to include service advisors or other occupations outside Congress' enumeration. Respondents are service advisors at a Mercedes-Benz automobile dealership in the Los Angeles area. They work regular hours, 7 a.m. to 6 p.m., at least five days per week, on the dealership premises. App. 54. Their weekly minimum is 55 hours. Maximum hours, for workers covered by the Fair Labor Standards Act (FLSA or Act), are 40 per week. 29 U.S.C. § 207(a)(1). In this action, respondents seek time-and-a-half compensation for hours worked beyond the 40 per week maximum prescribed by the FLSA. The question presented: Are service advisors exempt from receipt of overtime compensation under 29 U.S.C. § 213(b)(10)(A)? That exemption covers "any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles." Service advisors, such as respondents, neither sell automobiles nor service (i.e., repair or maintain) vehicles. Rather, they "meet and greet [car] owners"; "solicit and sugges[t]" repair services "to remedy the [owner's] complaints"; "solicit and suggest... supplemental [vehicle] service [s]"; and provide owners with cost estimates. App. 55. Because service advisors neither sell nor repair automobiles, they should remain outside the exemption and within the Act's coverage. I In 1961, Congress exempted all automobile-dealership employees from the Act's overtime-pay requirements. See Fair Labor Standards Amendments of 1961, § 9, 75 Stat. 73. Five years later, in 1966, Congress confined the dealership exemption to three categories of employees: automobile salesmen, mechanics, and partsmen. See Fair Labor Standards Amendments of 1966, § 209, 80 Stat. 836. At the time, it was well understood that mechanics perform "preventive maintenance" and "repairs," Dept. of Labor, Occupational Outlook Handbook 477 (1966-1967 ed.) (Handbook), while partsmen requisition parts, "suppl[y] [them] to mechanics," id., at 312, and, at times, have "mechanical responsibilities in repairing parts," Brief for International Association of Machinists and Aerospace Workers, AFL-CIO, as Amicus Curiae 30; see Handbook, at 312-313 (partsmen may "measure parts for interchangeability," test parts for "defect[s]," and "repair parts"). Congress did not exempt numerous other categories of dealership employees, among them, automobile painters, upholsterers, bookkeeping workers, cashiers, janitors, purchasing agents, shipping and receiving clerks, and, most relevant here, service advisors. These positions and their duties were well known at the time, as documented in U.S. Government catalogs of American jobs. See Handbook, at XIII, XV, XVI (table of contents); Brief for International Association of Machinists and Aerospace Workers, AFL-CIO, as Amicus Curiae 34 (noting "more than twenty distinct [job] classifications" in the service department alone). "Where Congress explicitly enumerates certain exceptions..., additional exceptions are not to be implied, in the absence of evidence of a contrary legislative intent." TRW Inc. v. Andrews, 534 U.S. 19, 28, 122 S.Ct. 441, 151 L.Ed.2d 339 (2001) (internal quotation marks omitted). The Court thus has no warrant to add to the three explicitly exempt categories (salesmen, partsmen, and mechanics) a fourth (service advisors) for which the Legislature did not provide. The reach of today's ruling is uncertain, troublingly so: By expansively reading the exemption to encompass all salesmen, partsmen, and mechanics who are "integral to the servicing process," ante, at 1136, the Court risks restoring much of what Congress intended the 1966 amendment to terminate, i.e., the blanket exemption of all dealership employees from overtime-pay requirements. II Had the § 213(b)(10)(A) exemption covered "any salesman or mechanic primarily engaged in selling or servicing automobiles," there could be no argument that service advisors fit within it. Only "salesmen" primarily engaged in "selling" automobiles and "mechanics" primarily engaged in "servicing" them would fall outside the Act's coverage. Service advisors, defined as "salesmen primarily engaged in the selling of services, " Encino Motorcars, LLC v. Navarro, 579 U.S. ----, ----, 136 S.Ct. 2117, 2129, 195 L.Ed.2d 382 (2016) (THOMAS, J., dissenting) (emphasis added), plainly do not belong in either category. Moreover, even if the exemption were read to reach "salesmen" "primarily engaged in servicing automobiles," not just selling them, service advisors would not be exempt. The ordinary meaning of "servicing" is "the action of maintaining or repairing a motor vehicle." Ante, at 1136 (quoting 15 Oxford English Dictionary 39 (2d ed. 1989)). As described above, see supra, at 1138, service advisors neither maintain nor repair automobiles. Petitioner stakes its case on Congress' addition of the "partsman" job to the exemption. See Reply Brief 6-10. That inclusion, petitioner urges, has a vacuum effect: It draws into the exemption job categories other than the three for which Congress provided, in particular, service advisors. Because partsmen, like service advisors, neither "sell" nor "service" automobiles in the conventional sense, petitioner reasons, Congress must have intended the word "service" to mean something broader than repair and maintenance. To begin with, petitioner's premise is flawed. Unlike service advisors, partsmen " 'get their hands dirty' by 'working as a mechanic's right-hand man or woman.' " Encino Motorcars, 579 U.S., at ----, n. 1, 136 S.Ct., at 2127, n. 1 (GINSBURG, J., concurring) (quoting Brief for Respondents in No. 15-415, p. 11; alterations omitted); see supra, at 1143 - 1144 (describing duties of partsmen). As the Solicitor General put it last time this case was before the Court, a mechanic "might be able to obtain the parts to complete a repair without the real-time assistance of a partsman by his side." Brief for United States as Amicus Curiae in No. 15-415, p. 23. But dividing the "key [repair] tasks... between two individuals" only "reinforces" "that both the mechanic and the partsman are... involved in repairing ('servicing') the vehicle." Ibid. Service advisors, in contrast, "sell... services [to customers] for their vehicles," Encino Motorcars, 579 U.S., at ----, 136 S.Ct., at 2121 (emphasis added)-services that are later performed by mechanics and partsmen. Adding partsmen to the exemption, moreover, would be an exceptionally odd way for Congress to have indicated that "servicing" should be given a meaning deviating from its ordinary usage. There is a more straightforward explanation for Congress' inclusion of partsmen alongside salesmen and mechanics: Common features of the three enumerated jobs make them unsuitable for overtime pay. Both salesmen and mechanics work irregular hours, including nights and weekends, not uncommonly offsite, rendering time worked not easily tracked. As noted in the 1966 Senate floor debate, salesmen "go out at unusual hours, trying to earn commissions." 112 Cong. Rec. 20504 (1966) (remarks of Sen. Bayh). See also ibid. (remarks of Sen. Yarborough) ("[T]he salesman... [can] sell an Oldsmobile, a Pontiac, or a Buick all day long and all night. He is not under any overtime."). Mechanics' work may involve similar "difficult[ies] [in] keeping regular hours." Ibid. For example, mechanics may be required to "answe[r] calls in... rural areas," ibid., or to "go out on the field where there is a harvesting of sugarbeets," id., at 20505 (remarks of Sen. Clark). And, like salesmen, mechanics may be "subject to substantial seasonal variations in business." Id., at 20502 (remarks of Sen. Hruska). Congress added "partsman" to the exemption because it believed that job, too, entailed irregular hours. See ibid. This is "especially true," several Senators emphasized, "in the farm equipment business where farmers, during planting, cultivating and harvesting seasons, may call on their dealers for parts at any time during the day or evening and on weekends." Ibid. (remarks of Sen. Bayh). See also id., at 20503 (remarks of Sen. Mansfield). In Senator Bayh's experience, for instance, a mechanic who "could not find [a] necessary part" after hours might "call the partsman, get him out of bed, and get him to come down to the store." Id., at 20504. See also id., at 20503 (remarks of Sen. Hruska) ("Are we going to say to the farmer who needs a part... on Sunday: You cannot get a spark plug... because the partsman is not exempt, but you can have machinery repaired by a mechanic who is exempt [?]"). Although some Senators opposed adding partsmen to the exemption because, as they understood the job's demands, partsmen did not work irregular hours, e.g., id., at 20505 (remarks of Sen. Clark), the crux of the debate underscores the exemption's rationale. That rationale has no application here. Unlike salesmen, partsmen, and mechanics, service advisors "wor[k] ordinary, fixed schedules on-site." Brief for Respondents 47 (citing Handbook, at 316). Respondents, for instance, work regular 11-hour shifts, at all times of the year, for a weekly minimum of 55 hours. See App. 54. Service advisors thus do not implicate the concerns underlying the § 213(b)(10)(A) exemption. Indeed, they are precisely the type of workers Congress intended the FLSA to shield "from the evil of overwork," Barrentine v. Arkansas-Best Freight System, Inc., 450 U.S. 728, 739, 101 S.Ct. 1437, 67 L.Ed.2d 641 (1981) (internal quotation marks omitted). I note, furthermore, that limiting the exemption to the three delineated jobs-salesman, partsman, and mechanic-does not leave the phrase "primarily engaged in selling or servicing," § 213(b)(10)(A), without utility. Congress included that language to ensure that only employees who actually perform the tasks commonly associated with the enumerated positions would be covered. Otherwise, for example, a worker who acts as a "salesman" in name only could lose the FLSA's protections merely because of the formal title listed on the employer's payroll records. See Bowers v. Fred Haas Toyota World, 2017 WL 5127289, *4 (S.D.Tex., June 21, 2017) ("[An employee's] title alone is not dispositive of whether he meets the... exemption."). Thus, by partsmen "primarily engaged in... servicing automobiles," Congress meant nothing more than partsmen primarily engaged in the ordinary duties of a partsman, i.e., requisitioning, supplying, and repairing parts. See supra, at 1143 - 1144, 1144 - 1145. The inclusion of "partsman" therefore should not result in the removal of service advisors from the Act's protections. III Petitioner contends that "affirming the decision below would disrupt decades of settled expectations" while exposing "employers to substantial retroactive liability." Brief for Petitioner 51. "[M]any dealerships," petitioner urges, "have offered compensation packages based primarily on sales commissions," in reliance on court decisions and agency guidance ranking service advisors as exempt. Id., at 51-52. Respondents here, for instance, are compensated on a "pure commission basis." App. 55. Awarding retroactive overtime pay to employees who were "focused on earning commissions," not "working a set number of hours," petitioner argues, would yield an "unjustified windfal[l]." Brief for Petitioner 53. Petitioner's concerns are doubly overstated. As the Court previously acknowledged, see Encino Motorcars, 579 U.S., at 1138, 136 S.Ct., at 2126-2127, the FLSA provides an affirmative defense that explicitly protects regulated parties from retroactive liability for actions taken in good-faith reliance on superseded agency guidance. See 29 U.S.C. § 259(a). Given the Department of Labor's longstanding view that service advisors fit within the § 213(b)(10)(A) exemption, see ante, at 1138, the reliance defense would surely shield employers from retroactive liability were the Court to construe the exemption properly. Congress, moreover, has spoken directly to the treatment of commission -based workers. The FLSA exempts from its overtime directives any employee of a "retail or service establishment" who receives more than half of his or her pay on commission, so long as the employee's "regular rate of pay" is more than 1 ½ times the minimum wage. § 207(i). Thus, even without the § 213(b)(10)(A) exemption, many service advisors compensated on commission would remain ineligible for overtime remuneration. In crafting the commission-pay exemption, Congress struck a deliberate balance: It exempted higher paid commissioned employees, perhaps in recognition of their potentially irregular hours, see Mechmet v. Four Seasons Hotels, Ltd., 825 F.2d 1173, 1176-1177 (C.A.7 1987) ; cf. supra, at 1145 - 1147, but it maintained protection for lower paid employees, to vindicate the Act's "principal... purpose" of shielding "workers from substandard wages and oppressive working hours," Barrentine 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_appbus
0
What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. ALLERS v. BOHMKER. No. 10611. United States Court of Appeals, Seventh Circuit. Nov. 5, 1952. Rehearing Denied Dec. 6, 1952. Swaim, Circuit Judge, dissented. Donald A. Wine, Walter A. Newport, Jr., Davenport, Iowa, for appellant. Edwin V. Champion, Peoria, 111., C. D. Klatt, Peoria, 111., for appellee. Before KEENER, DUFFY, and SWAIM, Circuit Judges. KERNER, Circuit Judge. Plaintiff Florence Allers and three of her minor children sustained personal injuries when an automobile in which they were passengers, operated by Harry Allers, husband of Florence and father of the three children, collided with an automobile driven by defendant near the intersection of U. S. Highway 6 and Old Colona Road in Rock Island County, Illinois. Plaintiffs brought suit to recover damages for the injuries. Jurisdiction was based upon diversity of citizenship and the requisite amount in controversy. The jury returned a verdict in favor of defendant. From the judgment entered thereon, plaintiffs appeal, and present only one question. Did the court err in instructing the jury? U. S. Highway 6 is a through highway running east and west. Colona road joins route 6 from the north by means of a “Y”, one branch going southeast and the other, southwest. Colona road does not extend southward beyond route 6, but ends at the junction formed by the Y. The declaration charged in substance that defendant operated his automobile at a dangerous and unreasonable rate of speed, in violation of Ch. 95%, § 146(a), Ill.Rev.St.1951. Since this is a negligence case, plaintiffs had the burden of proving that defendant was guilty of negligent conduct which was the proximate cause of their injuries. Plaintiffs, on January 2, 1949, at about 1:30 p. m., were proceeding from their home in Davenport, Iowa. Florence was riding in the front seat of the automobile driven by her husband. The children were in the rear seat. The Allers automobile was being driven south on Colona road, and turned into the southeasterly branch of the Y to enter route 6, over which defendant was driving his car in a westerly direction. The weather was clear and the concrete pavement of route 6 was free of ice and snow. Route 6 is about 18 feet wide. A standard sign, upon which appear the words “Stop. State route,” is located on the right side of the intersection of route 6 and the southeasterly branch of Colona road, that is, somewhere in the center of the Y. Florence testified that her husband was traveling at a moderate speed just before he turned into route 6 and that he stopped for the stop sign; that she checked for traffic approaching from the west over the brow of a hill and told her husband, “Go on. There is no one coming from the west side”; that she looked to the east and did not see defendant’s car coming up the grade from the east; that as they proceeded into route 6 they were in their own traffic lane and were traveling at about 25 miles an hour; that when the Allers automobile had completed the turn east on route 6 she saw defendant’s car swaving (sic) as he approached their automobile; that the cars collided head on, jackknifed and rested at the point of impact. Plaintiffs’ witness Garner testified that he was in an automobile driven by one Miller on Colona road, 30 feet to the rear of the Allers automobile, and that when Allers’ automobile reached the stop sign it looked to him “like he slowed down to, I would say, four or five miles per hour. It looked like he shifted in second and started out.” He also testified that defendant’s car struck Allers’ automobile on the left front part, and that just prior to the collision defendant’s car was traveling at about 65 miles an hour. Harry Allers testified that he had no recollection of the collision. Betty, the daughter, testified that she was sleeping, and both she and Milford, the son, testified they had no recollection of the events leading up to the accident. It will not be necessary to set out the testimony adduced in behalf of defendant. It is enough to say that we have examined all of the evidence and that it was sufficient to establish that defendant’s car struck Allers’ automobile when 20 feet to the east of the northeast corner of Colona road and route 6; that when the Allers automobile was about 100 feet north of the stop sign, it was traveling at about 35 miles an hour, and that its speed was not decreased before it entered onto route 6; that at that moment defendant was driving his car in the north lane on the right side of the road, westward on route 6, at about 45 miles an hour, and that his car was not swaying from side to side as it approached Colona road. Plaintiffs make the point that the court erred in instrucing the jury, over plaintiffs’ objection, that the jury must determine which automobile was the proximate cause of the injury, and in refusing to instruct the jury that “The proximate cause of an accident may be thé result of two or more inseparable negligent acts uniting to produce the result.” They argue that even though Allers’ failure to stop- before entering upon- route 6 was negligence and a proximate cause of the accident, nevertheless, they insist, they were entitled to- have the jury instructed that if the injury was caused by the concurring negligence of Allers and defendant, the defendant was liable to the same extent as though it had been caused by his own negligence. The negligence plaintiffs sought to establish against defendant was that he had driven his automobile upon a public highway at a speed greater than was reasonable and proper, having regard to the traffic and the use of the highway. It is true that a party to a suit.is entitled to have his instructions given presenting his theory of the case, Hagen v. Schleuter, 236 Ill. 467, 86 N.E. 112, 22 L.R.A.,N.S., 856, and if an injury is caused by the concurring negligence of a defendant and a third person, the defendant is liable to- the same extent as though the injury had been caused by his own negligence. Miller v. Union Pacific R. Co., 290 U.S. 227, 54 S.Ct. 172, 78 L.Ed. 285; Sullivan v. William Ohlhaver Co., 291 Ill. 359, 126 N.E. 191; Gleason v. Cunningham, 316 Ill.App. 286, 44 N.E.2d 940. But instructions are to be regarded as a series, Chicago City Ry. Co. v. Shaw, 220 Ill. 532, 536, 77 N.E. 139, and must be considered as a whole and not in their individual parts, Rosenfeld v. Curtis Pub. Co., 2 Cir., 163 F.2d 660, and if the instructions as a whole, when viewed in the light of the evidence, show no tendency to confuse or mislead the jury with respect to the principle of 'law applicable to the issues, then minor irregularities, when considered as an abstract proposition of law, should not be permitted to prevail, where it appears that the complaining party’s rights have not thereby been prejudiced, Kavanaugh v. Washburn, 320 Ill.App. 250, 255, 50 N.E.2d 761. We are mindful of and recognize the force in the abstract of the legal propositions asserted by plaintiffs, but it must be remembered that in Illinois it has been held that absolute accuracy with respect to instructions is a thing seldom to- be attained, and the courts, for want of it, should not set aside verdicts unless the inaccuracy is-of such a character that it misled the jury. Chicago City Ry. Co. v. Shaw, 220 Ill. 532, 536, 77 N.E. 139. And'while an instruction, when offered, may be, in general, good-law, if the jury has been fully and fairly' instructed as to the law by other instructions, the refusal"of such an instruction ought not to be held reversible error. Asmossen v. Swift & Co., 243 Ill. 93, 98, 90 N.E. 250. What is the proximate cause of an injury is ordinarily a question of fact, and whether defendant negligently drove 'his automobile at a greater speed than was-reasonable and proper, having regard to the traffic and the use of the highway, was also-a question of fact for the jury to determine. In the instant case, in addition to the criticized instruction, other instructions told the jury that théy must determine from the evidence whether defendant, through negligence, was the cause of the injury, and that if the defendant was guilty of no negligence, plaintiffs were not entitled to recover, but if the jury believed that defendant was negligent and that his negligence was a proximate cause of the accident, they must find for plaintiffs. Thus, when the instructions are considered as a whole, they adequately advised the jury as to the applicable principles of law and under what circumstances they could find for plaintiffs; they were clearly told that if defendant was negligent and his negligence was a proximate cause of the accident, they must find for plaintiffs. In this situation there was nothing to confuse or mislead the jury with respect to'the applicable principle of law; the court’s charge, considered as a whole, was without prejudice to plaintiffs. Since we cannot say as a matter of law that defendant was guilty of negligence, but must hold that it is implicit in the verdict that •defendant was not guilty of any negligence which proximately contributed to plaintiffs’ injuries, we think that the court’s failure to instruct the jury as requested was not reversible error. Affirmed. Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number. Answer:
songer_casetyp1_1-3-1
R
What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Your task is to determine the specific issue in the case within the broad category of "criminal - federal offense". UNITED STATES of America, Plaintiff-Appellee, v. Alvin Harrison PETERSON, Defendant-Appellant. No. 25909. United States Court of Appeals, Ninth Circuit. Jan. 18, 1971. Rehearing Denied March 22, 1971. James A. Alfieri, of McDonell & Alfieri, Seattle, Wash., for appellant. Stan Pitkin, U. S. Atty., William H. Rubidge, J. Byron Holcomb, Asst. U. S. Attys., Seattle, Wash., for appellee. Before KOELSCH, CARTER and WRIGHT, Circuit Judges. PER CURIAM: The “concurrent sentences” rule first announced in Sinclair v. United States, 279 U.S. 263, 299, 49 S.Ct. 268, 73 L.Ed. 692 (1929) and consistently adhered to by the Supreme Court (Lawn v. United States, 355 U.S. 339, 359, 78 S.Ct. 311, 2 L.Ed.2d 321 (1958), Greene v. United States, 358 U.S. 326, 330, 79 S.Ct. 340, 3 L.Ed.2d 340 (1959)) makes unnecessary any examination into appellant’s sole assignment of error which attacks the validity of one of several convictions under a multi-count indictment. We have nevertheless considered the assignment; granted the criticized instruction should not have been given, the conclusion is manifest that the error was harmless. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Affirmed. Question: What is the specific issue in the case within the general category of "criminal - federal offense"? A. murder B. rape C. arson D. aggravated assault E. robbery F. burglary G. auto theft H. larceny (over $50) I. other violent crimes J. narcotics K. alcohol related crimes, prohibition L. tax fraud M. firearm violations N. morals charges (e.g., gambling, prostitution, obscenity) O. criminal violations of government regulations of business P. other white collar crime (involving no force or threat of force; e.g., embezzlement, computer fraud,bribery) Q. other crimes R. federal offense, but specific crime not ascertained Answer:
songer_usc1
42
What follows is an opinion from a United States Court of Appeals. Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title. Renee GARRETT, Margaret McCoy, and Marna Williamson, Plaintiffs-Appellees, and Lurena Hughes, Plaintiff-Appellee, Cross-Appellant, v. OKALOOSA COUNTY, Defendant, and Larry Gilbert, individually and in his official capacity as Sheriff of Okaloosa County, and Frank J. Mills, individually and in his former official capacity as Sheriff of Okaloosa County, Defendants-Appellants, Cross-Appellees. No. 83-3327. United States Court of Appeals, Eleventh Circuit. June 18, 1984. Julius F. Parker, Jr., Tallahassee, Fla., for defendants-appellants, cross-appellees. Brian Norton, Tallahassee, Fla., for plaintiffs-appellees. Before HILL and HENDERSON, Circuit Judges, and TUTTLE, Senior Circuit Judge. TUTTLE, Senior Circuit Judge: This is an appeal by defendants-appellants Frank Mills and Larry Gilbert, who were past and present sheriffs, respectively, of Okaloosa County, Florida, from a judgment that they violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Equal Pay Act, 29 U.S.C. § 206(d)(1) with respect to plaintiff-appellees, four past and present female employees of the Okaloosa County Jail. Defendants claim that the district court erred in failing to find that their actions were justified under the bona fide occupational qualification (BFOQ) defense to Title VII, and in finding a violation of the Equal Pay Act. One of the plaintiffs, Lurena Hughes, cross-appeals, asserting that the award to her of backpay was erroneously limited by the district court. We affirm on the issues raised by defendants, and reverse and remand on the cross-appeal by plaintiff Hughes. I. BACKGROUND Plaintiffs initially were hired as matrons/dispatchers at the Okaloosa County Jail. In 1977, plaintiff Margaret McCoy was trained and certified by the state of Florida as a correctional officer. Following her certification, McCoy, who continued in her position as a matron/dispatcher, began complaining to her supervisors that she was not receiving the same pay as her male co-workers who were correctional officers. McCoy requested that she be reclassified as a correctional officer, but was informed by the chief jailor that women would not be considered for any correctional officer vacancies at the Okaloosa County Jail. In March, 1979, plaintiffs Renee Garrett, Lurena Hughes, and Marna Williamson completed correctional officer training and certification. During their training courses plaintiffs discovered that women in other Florida county jails were employed as correctional officers. Following their certification, Williamson and Garrett personally requested reclassification as correctional officers, but were informed that no women would be considered for that position. Hughes also desired reclassification, but made no personal request because she knew from the response received by the other plaintiffs that such a request would be futile. Plaintiffs continued to complain about the county’s failure to reclassify them, and in August 1980 they wrote a joint letter to Sheriff Mills, formally requesting jobs as correctional officers. Plaintiffs received no response from Sheriff Mills. In January and March, 1981, plaintiffs again complained to the new sheriff, Sheriff Gilbert, about unequal and discriminatory employment practices. Gilbert responded that he could do nothing about unequal pay until the new fiscal year began in October, 1981. Nevertheless, Gilbert did reclassify plaintiffs as correctional officers, beginning with Hughes in February, and McCoy and Garrett on April 1, 1981. The district court found that from these dates forward, the performance of plaintiffs’ jobs required skill, effort, and responsibility equal to that of their male co-workers, under similar working conditions. Nevertheless, plaintiffs continued to be paid less than their male counterparts until the date judgment was entered against defendants. Plaintiffs initiated this suit in the United States District Court for the Northern District of Florida at about the time they learned that despite their reclassification as correctional officers, their pay would remain less than that of male correctional officers at the jail. The district court found that defendants discriminated against plaintiffs on the basis of sex in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., by refusing for several years to promote them to positions as correctional officers — jobs they were qualified to perform — from their positions as matrons/dispatchers with the jail. The district court further found that defendants violated the Equal Pay Act, 29 U.S.C. § 206(d)(1), by not paying the plaintiffs the same wage as their similarly situated male counterparts after plaintiffs were reclassified as correctional officers. The district court dismissed the bulk of plaintiffs’ Equal Pay Act claims, which contended that during the period that plaintiffs were matrons/dispatchers, they were entitled to the same pay as male correctional officers. The district court found that the duties of a matron/dispatcher were not substantially equal to those of a correctional officer, and that therefore no Equal Pay Act violation was established. Moreover, the district court held that Title VII was better suited than the Equal Pay Act to address plaintiffs’ claims of discrimination during the period they held positions as matrons/dispatchers despite their qualifications as correctional officers. The district court further determined that the individual defendants were liable only in their official, and not their individual, capacities. Following a separate trial on damages, the district court entered judgment totaling approximately $15,000, to be apportioned among the plaintiffs. II. ISSUES Defendants raise two issues on appeal, and plaintiff Hughes has cross-appealed one issue. Defendants first assert that the district court erred in failing to find that their actions were justified on the basis of a bona fide occupational qualification (BFOQ). Second, defendants contend that the district court erred in finding an Equal Pay Act violation after April 1, 1981. Hughes cross-appeals the district court’s computation of her backpay. III. DISCUSSION A. The BFOQ Defense Defendants claim that prior to 1981 they could not assign plaintiffs to positions as correctional counselors at the Okaloosa County Jail because of a state regulation that mandatorily required that: When a male person must enter the female section of a detention facility where a female is confined, a matron or female employee will accompany him, and when a female person must enter the male section of a detention facility where a male is confined a male employee will accompany her. Fla.Admin.Code, § 33.8.05(6) (emphasis in appellants’ brief). That regulation was amended in May, 1981 and now reads: Male and female prisoners must be housed separately and also separated by sight and normal sound. Sound separation is defined as restricting normal verbal communications. When a male must enter a female housing area he will do so only when accompanied by a female correctional officer or other female person designated by the officer in charge unless any emergency situation would dictate otherwise. Fla.Admin.Code, § 33-8.03(2). Defendants seem to believe that the prior regulation created an outright bar on the use of female correctional officers in male inmate facilities. Thus, they argue that they were prohibited from using plaintiffs in the male portion of the Okaloosa County Jail, which contained 95% of the inmates at the jail. Additionally, defendants argue that there was no need for one or more full-time female correctional officers to care for the small proportion of female inmates at the Okaloosa County Jail. Rather, a “matron” with additional duties as a dispatcher was sufficient to care for the female inmates. Therefore, defendants assert that they were justified by a BFOQ in hiring females as “matrons” to guard female prisoners exclusively, and males as correctional officers to guard male prisoners exclusively. Defendants’ argument is merit-less. First, the old regulation relied upon by defendants did not prohibit female correctional officers from guarding male inmates. Rather, the regulation was sexually neutral on its face, requiring a male to accompany a female in a male inmate facility and vice versa. Second, even if the old regulation did prohibit using female correctional officers in male inmate facilities, defendants would bear the burden of proving that the regulation was legitimate. See Dothard v. Rawlinson, 433 U.S. 321, 329, 97 S.Ct. 2720, 2726, 53 L.Ed.2d 786 (1977). The mere fact that a state enacts a discriminatory regulation does not create a BFOQ defense for one who follows such a regulation. To prove a BFOQ, the employer must show that sex is a qualification “reasonably necessary to the normal operation of that particular business or enterprise.” 42 U.S.C. § 2000e-2(e). The BFOQ defense has been construed very narrowly to apply “only when the essence of the business operation would be undermined by not hiring members of one sex exclusively.” Diaz v. Pan American World Airways, 442 F.2d 385, 388 (5th Cir.1971) (emphasis in original). Here, the evidence at trial showed that other Florida counties were using female correctional officers long before the regulation changed. Additionally, defendants came forth with no evidence that the use of female correctional officers in Okaloosa County following the regulation change in 1981 has in any way hindered the efficient operation of the Okaloosa County Jail. For an occupational qualification to be “bona fide,” it must be just as valid and necessary one day as it is the next. Yet, defendants argue, in effect, that the same women who apparently are working out well as .correctional officers today would not have worked out prior to 1981, with the same qualifications. We cannot accept that argument. B. Equal Pay Act Violation At trial, plaintiffs contended that from February and April 1981, when they fully assumed duties as correctional officers, to the time judgment was entered, they received less pay than similarly situated male correctional officers. The district court agreed with plaintiffs and ordered the parties to agree on the actual pay differentials involved. In compliance with that order, the parties stipulated to salary figures that showed a clear equal pay violation. Following the damages phase of trial, however, defendants attempted to refute the stipulated figures by pointing to unobjected to testimony of one defense witness. The district court offered defendants’ counsel an opportunity to reopen the trial to resolve the alleged discrepancy between the stipulation and the testimony, but defendants’ counsel declined that opportunity. Defendants now argue that the district court erred in finding an equal pay violation because the testimony at trial refuted the stipulated figures. We hold that defendants waived their opportunity to raise this issue on appeal when they declined the district court’s generous offer to reopen the trial. C. Computation of Backpay for Hughes In her cross-appeal, Hughes contends that the district court erred when it limited her backpay to the period commencing in August, 1980, rather than the period beginning in March, 1979. Although Hughes, Williamson, and Garrett all completed their correctional officer training and certification in March, 1979, the district court awarded only Williamson and Garrett backpay to March, 1979, because they personally requested reclassification then. The district court awarded Hughes back-pay only to August, 1980, at which time she first personally requested reclassification by joining the other plaintiffs in a letter to Sheriff Mills. The district court did find, however, that Hughes was interested in reclassification as early as Williamson and Garrett. Moreover, the district court found that Hughes did not request reclassification prior to August 1980 because she believed such a request would be futile. Hughes argues that the finding that she was interested in a position as a correctional officer as early as March, 1979, coupled with the finding that she believed (with good reason, based on the experience of her co-workers) that it would be futile to apply for the position, is sufficient to entitle her to backpay from the earlier period. We agree. See International Brotherhood of Teamsters v. United States, 431 U.S. 324, 362-71, 97 S.Ct. 1843, 1868-1873, 52 L.Ed.2d 396 (1977). Accordingly, the judgment of the district court is AFFIRMED with respect to defendants’ appeal, and REVERSED with respect to plaintiff Hughes’s cross-appeal to permit a new determination of her backpay award. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. . Williamson resigned from her position at the Okaloosa County Jail on March 11, 1981. . Defendants contend that they promoted plaintiffs when the regulation was changed, although the record shows that the promotions occurred one to two months before the change. Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number. Answer:
sc_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. JEFFERSON COUNTY PHARMACEUTICAL ASSOCIATION, INC. v. ABBOTT LABORATORIES ET AL. No. 81-827. Argued November 8, 1982 Decided February 23, 1988 Powell, J., delivered the opinion of the Court, in which Burger, C. J., and White, Marshall, and Blackmun, JJ., joined. Stevens, J., filed a dissenting opinion, post, p. 171. O’Connor, J., filed a dissenting opinion, in which Brennan, Rehnquist, and Stevens, JJ., joined, post, p. 174. Joe L. Tucker, Jr., argued the cause and filed briefs for petitioner. David Klingsberg argued the cause for respondents. With him on the brief for respondents Abbott Laboratories et al. was Michael Malina. John J. Coleman, Jr., E. Mabry Rogers, and Ina B. Leonard filed a brief for respondent Board of Trustees of the University of Alabama. Briefs of amici curiae urging reversal were filed by Paul L. O’Brien and Frank M. Northam for the American Pharmaceutical Association; and by John S. Hoff mid Fred W. Geldon for the National Association of Retail Druggists. George H. Cross filed a brief for the National Association of Counties as amicus curiae. Justice Powell delivered the opinion of the Court. The issue presented is whether the sale of pharmaceutical products to state and local government hospitals for resale in competition with private retail pharmacies is exempt from the proscriptions of the Robinson-Patman Act. ) — I Petitioner, a trade association of retail pharmacists and pharmacies doing business in Jefferson County, Alabama, commenced this action in 1978 in the District Court for the Northern District of Alabama as the assignee of its members’ claims. Respondents are 15 pharmaceutical manufacturers, the Board of Trustees of the University of Alabama, and the Cooper Green Hospital Pharmacy. The University operates a medical center, including hospitals, and a medical school. Located in the University’s medical center are two pharmacies. Cooper Green Hospital is a county hospital, existing as a public corporation under Alabama law. The complaint seeks treble damages and injunctive relief under §§4 and 16 of the Clayton Act, 38 Stat. 731, 737, 15 U. S. C. §§ 15 and 26, for alleged violations of §§ 2(a) and (f) of the Clayton Act, 38 Stat. 730, as amended by the Robinson-Patman Act (Act), 49 Stat. 1526, 15 U. S. C. §§ 13(a) and (f). Petitioner contends that the respondent manufacturers violated § 2(a) by selling their products to the University’s two pharmacies and to Cooper Green Hospital Pharmacy at prices lower than those charged petitioner’s members for like products. Petitioner alleges that the respondent hospital pharmacies knowingly induced such lower prices in violation of § 2(f) and sold the drugs to the general public in direct competition with privately owned pharmacies. Petitioner also alleges that the price discrimination is not exempted from the proscriptions of the Act by 15 U. S. C. § 13c. Respondents moved to dismiss the complaint on the ground that state purchases are exempt as a matter of law from the sanctions of § 2. In granting respondents’ motions, the District Court expressly accepted as true the allegations that local retail pharmacies had been injured by the challenged price discrimination and that at least some of the state purchases were not exempt under § 13c. 656 F. 2d 92, 98 (CA5 1981) (reprinting District Court’s opinion as Appendix). The District Court held that “governmental purchases are, without regard to 15 U. S. C. § 13c, beyond the intended reach of the Robinson-Patman Price Discrimination Act, at least with respect to purchases for hospitals and other traditional governmental purposes.” Id., at 102. The Court of Appeals for the Fifth Circuit, in a divided per curiam decision, affirmed “on the basis of the district court’s Memorandum of Opinion.” Id., at 93. We granted certiorari to resolve this important question of federal law. 455 U. S. 999 (1982). We now reverse. The issue here is narrow. We are not concerned with sales to the Federal Government, nor with state purchases for use in traditional governmental functions. Rather, the issue before us is limited to state purchases for the purpose of competing against private enterprise — with the advantage of discriminatory prices — in the retail market. The courts below held, and respondents contend, that the Act exempts all state purchases. Assuming, without deciding, that Congress did not intend the Act to apply to state purchases for consumption in traditional governmental functions, and that such purchases are therefore exempt, we conclude that the exemption does not apply where a State has chosen to compete in the private retail market. i — f h — i b — i The Robinson-Patman Act by its terms does not exempt state purchases. The only express exemption is that for nonprofit institutions contained in 15 U. S. C. § 13c. Moreover, as the courts below conceded, “[t]he statutory language — ‘persons’ and ‘purchasers’ — is sufficiently broad to cover governmental bodies. 15 U. S. C. §§12, 13(a, f).” 656 F. 2d, at 99. This concession was compelled by several of this Court’s decisions. In City of Lafayette v. Louisiana Power & Light Co., 435 U. S. 389, 395 (1978), for example, we stated without qualification that “the definition of ‘person’ or ‘persons’ embraces both cities and States.” Respondents would distinguish City of Lafayette from the case before us because it involved the Sherman Act rather than the Robinson-Patman Act. Such a distinction ignores the specific reference to the Robinson-Patman Act in our discussion of the all-inclusive nature of the term “person.” Id., at 397, n. 14. We do not perceive any reason to construe the word “person” in that Act any differently than we have in the Clayton Act, which it amends, and it is undisputed that the Clayton Act applies to States. See Hawaii v. Standard Oil Co., 405 U. S. 251, 260-261 (1972). In sum, the plain language of the Act strongly suggests that there is no exemption for state purchases to compete with private enterprise. > The plain language of the Act is controlling unless a different legislative intent is apparent from the purpose and history of the Act. An examination of the legislative purpose and history here reveals no such contrary intention. A Our eases have been explicit in stating the purposes of the antitrust laws, including the Robinson-Patman Act. On numerous occasions, this Court has affirmed the comprehensive coverage of the antitrust laws and has recognized that these laws represent “a carefully studied attempt to bring within [them] every person engaged in business whose activities might restrain or monopolize commercial intercourse among the states.” United States v. South-Eastern Underwriters Assn., 322 U. S. 533, 553 (1944). In Goldfarb v. Virginia State Bar, 421 U. S. 773 (1975), the Court observed that “our cases have repeatedly established that there is a heavy presumption against implicit exemptions” from the antitrust laws. Id., at 787 (citing United States v. Philadelphia National Bank, 374 U. S. 321, 350-351 (1963); California v. FPC, 369 U. S. 482, 485 (1962)). In City of Lafayette, supra, applying antitrust laws to a city in competition with a private utility, we held that no exemption for local governments would be implied. The Court emphasized the purposes and scope of the antitrust laws: “[T]he economic choices made by public corporations..., designed as they are to assure maximum benefits for the community constituency, are not inherently more likely to comport with the broader interests of national economic well-being than are those of private corporations, acting in furtherance of the interests of the organization and its shareholders.” 435 U. S., at 403. See also id., at 408. These principles, and the purposes they further, have been helpful in interpreting the language of the Robinson-Patman Act. As Justice Blackmun stated for the Court in Abbott Laboratories v. Portland Retail Druggists Assn., Inc., 425 U. S. 1, 11-12 (1976): “It has been said, of course, that the antitrust laws, and Robinson-Patman in particular, are to be construed liberally, and that the exceptions from their application are to be construed strictly. United States v. McKesson & Robbins, 351 U. S. 305, 316 (1956); FMC v. Seatrain Lines, Inc., 411 U. S. 726, 733 (1973); Perkins v. Standard Oil Co., 395 U. S. 642, 646-647 (1969). The Court has recognized, also, that Robinson-Patman ‘was enacted in 1936 to curb and prohibit all devices by which large buyers gained discriminatory preferences over smaller ones by virtue of their greater purchasing power.’ FTC v. Broch & Co., 363 U. S. 166, 168 (1960); FTC v. Fred Meyer, Inc., 390 U. S. 341, 349 (1968). Because the Act is remedial, it is to be construed broadly to effectuate its purposes. See Tcherepnin v. Knight, 389 U. S. 332, 336 (1967); Peyton v. Rowe, 391 U. S. 54, 65(1968).” B The legislative history falls far short of supporting respondents’ contention that there is an exemption for state purchases of “commodities” for “resale.” There is nothing whatever in the Senate or House Committee Reports, or in the floor debates, focusing on the issue. Some Members of Congress were aware of the possibility that the Act would apply to governmental purchases. Most Members, however, were concerned not with state purchases, but with possible limitations on the Federal Government. The most relevant legislative history is the testimony of the Act’s principal draftsman, H. B. Teegarden, before the House Judiciary Committee. Although the testimony is ambiguous on the application of the Act to state purchases for consumption, one conclusion is certain: Teegarden expressly stated that the Act would apply to the purchases of municipal hospitals in at least some circumstances. Thus, his comments directly contradict the exemption found by the courts below for all such purchasing. In the absence of any other relevant evi- dence, we find no legislative intention to enable a State, by an unexpressed exemption, to enter private competitive markets with congressionally approved price advantages. V Despite the plain language of the Act and its legislative history, respondents nevertheless argue that subsequent legislative events and decisions of District Courts confirm that state purchases are outside the scope of the Act. We turn therefore to these subsequent events. A Respondents cite the hearings on the Robinson-Patman Act held in the late 1960’s. Testimony before the House Subcommittee investigating practices in the pharmaceutical industry indicated that the Act did not cover price discrimination in favor of state hospitals, and Federal Trade Commission Chairman Paul Dixon disclaimed any authority over transactions involving state health care programs. It is not at all clear, however, whether Chairman Dixon contemplated cases in which the state agency competed with private retailers, although he was aware of such practices by institutional purchasers. Other statements expressed little more than informed, interested opinions on the issue presented, and are not entitled to the consideration appropriate for the constructions given contemporaneously with the Act’s passage. See supra, at 159-162, and n. 22. It is clear from the House Subcommittee’s conclusions that it did not focus on the question presented by this case. The Subcommittee found that the difference between drug prices for retailers and government customers “is extremely substantial” and “not always fully explainable by either cost justifiable quantity discounts, economies of scale, or other factors inherent in bulk distribution.” H. R. Rep. No. 1983, 90th Cong., 2d Sess., 77 (1968). In the next conclusion, it stated that “[n]umerous acts and policies of individual manufacturers seem... violative of the Robinson-Patman Act... Ibid. Thus, it is quite possible that the Subcommittee considered some state purchasing at discriminatory-prices — about which it had heard testimony — to be unlawful. The Subcommittee Report did include the awkwardly worded statement: “There is no basis apparent... why the mandate of the Robinson-Patman Act should not be applied to discriminatory drug sales favoring nongovernmental institutional purchasers, profit or nonprofit, to the extent there is prescription drug competition at the retail level with disfavored retail druggists.” Id., at 79. This unexceptional opinion, however, simply says that private institutional purchases may not facilitate unfair retail competition through sales at discriminatory prices. The Subcommittee said nothing expressly about the unfair competition at issue in this case. B Respondents also argue that, without exception, courts considering the Act’s coverage have concluded that it does not apply to government purchasers. They insist that no court has imposed liability upon a seller or buyer, under either §2(a) or §2(f), when the discriminatory price involved a sale to a State, city, or county. See Brief for Respondent Board of Trustees 31-32. There are serious infirmities in these broad assertions: (i) this Court has never held nor suggested that there is an exemption for state purchases; (ii) the number of judicial decisions even considering the Act’s application to purchases by state agencies is relatively small; (iii) respondents cite no Court of Appeals decision that has expressly adopted their interpretation of § 2 before the decision below; (iv) some of the District Court cases upon which respondents rely are simply inapposite; (v) it is not clear that any published District Court opinion has relied solely on a state purchase exemption to dismiss a Robinson-Patman Act claim alleging injury as a result of government competition in the private market; and (vi) there are several cases that suggest that the Robinson-Patman Act is applicable to state purchases for resale purposes. This judicial track record is in no sense comparable to the unbroken chain of judical decisions upon which this Court previously has relied for ascertaining a construction of the antitrust laws that Congress over a long period of time has chosen to preserve. See cases cited, n. 27, supra. Respondents also seek support in the interpretations of various commentators and executive officials. But the most authoritative of these sources indicate that the question presented is unsettled; others are not necessarily inconsistent with our holding; and in some cases they support it. Thus, Congress cannot be said to have left untouched a universally held interpretation of the Act. In sum, it is clear that postenactment developments— whether legislative, judicial, or in commentary — rarely have considered the specific issue before us. There is simply no unambiguous evidence of congressional intent to exempt purchases by a State for the purpose of competing in the private retail market with a price advantage. I — I > The Robinson-Patman Act has been widely criticized, both for its effects and for the policies that it seeks to promote. Although Congress is well aware of these criticisms, the Act has remained in effect for almost half a century. And it certainly is “not for [this Court] to indulge in the business of policy-making in the field of antitrust legislation.... Our function ends with the endeavor to ascertain from the words used, construed in the light of the relevant material, what was in fact the intent of Congress.” United States v. Cooper Corp., 312 U. S. 600, 606 (1941). “A general application of the [Robinson-Patman] Act to all combinations of business and capital organized to suppress commercial competition is in harmony with the spirit and impulses of the times which gave it birth.” South-Eastern Underwriters, 322 U. S., at 553. The legislative history is replete with references to the economic evil of large organizations purchasing from other large organizations for resale in competition with the small, local retailers. There is no reason, in the absence of an explicit exemption, to think that Congressmen who feared these evils intended to deny small businesses, such as the pharmacies of Jefferson County, Alabama, protection from the competition of the strongest competitor of them all. To create an exemption here clearly would be contrary to the intent of Congress. VII We hold that the sale of pharmaceutical products to state and local government hospitals for resale in competition with private pharmacies is not exempt from the proscriptions of the Robinson-Patman Act. The judgment of the Court of Appeals accordingly is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Section 2(a), 15 U. S. C. § 13(a), provides in relevant part: “It shall be unlawful for any person engaged in commerce, in the course of such commerce, either directly or indirectly, to discriminate in price between different purchasers of commodities of like grade and quality, where either or any of the purchases involved in such discrimination are in commerce, where such commodities are sold for use, consumption, or resale within the United States..., and where the effect of such discrimination may be substantially to lessen competition or tend to create a monopoly in any line of commerce, or to injure, destroy, or prevent competition with any person who either grants or knowingly receives the benefit of such discrimination, or with customers of either of them... Section 2(f), 15 U. S. C. § 13(f), provides: “It shall be unlawful for any person engaged in commerce, in the course of such commerce, knowingly to induce or receive a discrimination in price which is prohibited by this section.” Section 13c provides: “Nothing in [the Robinson-Patman Act] shall apply to purchases of their supplies for their own use by schools, colleges, universities, public libraries, churches, hospitals, and charitable institutions not operated for profit.” “State purchases” are defined as sales to and purchases by a State and its agencies. The District Court, and thus the Court of Appeals, agreed that “[t]he claims against the Board must... be treated as equivalent to claims against the State itself.” 656 F. 2d, at 99. Accordingly, both courts held that the Eleventh Amendment bars petitioner’s claim for damages against the University. Petitioner did not challenge this holding in its appeal from the District Court’s decision. Respondents argue that application of the Act to purchases by the State of Alabama would present a significant risk of conflict with the Tenth Amendment and that we therefore should avoid any construction of the Act that includes such purchases. See NLRB v. Catholic Bishop of Chicago, 440 U. S. 490, 501 (1979). There is no risk, however, of a constitutional issue arising from the application of the Act in this case: The retail sale of pharmaceutical drugs is not “indisputably” an attribute of state sovereignty. See Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U. S. 264, 288 (1981). It is too late in the day to suggest that Congress cannot regulate States under its Commerce Clause powers when they are engaged in proprietary activities. See, e. g., Parden v. Terminal Railway of Alabama State Docks Dept., 377 U. S. 184, 187-193 (1964). If the Tenth Amendment protects certain state purchases from the Act’s limitations, such as for consumption in traditional governmental functions, those purchases must be protected on a case-by-case basis. Cf. City of Lafayette v. Louisiana Power & Light Co., 435 U. S. 389, 413, and n. 42 (1978) (plurality opinion). Special solicitude for the plight of indigents is a traditional concern of state and local governments. If, in special circumstances, sales were made by a State to a class of indigents, the question presented, that we need not decide, would be whether such sales are “in competition” with private enterprise. The District Court correctly assumed that the private and state pharmacies in this case are “competing pharmacies.” 656 F. 2d, at 98. See also n. 8, infra. The District Court properly assumed, for purposes of making its summary judgment, that at least some of the hospital purchases would not be covered by the § 13c exemption. See n. 3, supra, and accompanying text. Therefore, we need not consider whether this express exemption would support summary judgment in cases against state hospitals purchasing for their own use. See n. 20, infra. The words “person” and “persons” are used repeatedly in the antitrust statutes. See 15 U. S. C. §§7, 12, 15. See, e. g., Georgia v. Evans, 316 U. S. 159, 162 (1942) (State is a “person” under § 7 of the Sherman Act); Chattanooga Foundry & Pipe Works v. City of Atlanta, 203 U. S. 390, 396 (1906) (municipality is a “person” within the meaning of § 8 of the Sherman Act). See also Pfizer Inc. v. Government of India, 434 U. S. 308, 318 (1978) (foreign nation is a “person” under § 4 of the Clayton Act). The Court has not considered it at all “anomalous to require compliance by municipalities with the substantive standards of other federal laws which impose... sanctions upon ‘persons.’” City of Lafayette v. Louisiana Power & Light Co., supra, at 400. See California v. United States, 320 U. S. 577, 585-586 (1944); Ohio v. Helvering, 292 U. S. 360, 370 (1934). One case is of particular relevance. In Union Pacific R. Co. v. United States, 313 U. S. 450 (1941), the Court considered the applicability to a city of § 1 of the Elkins Act, 32 Stat. 847, as amended, 34 Stat. 587, 49 U. S. C. § 41(1) (repealed 1978), “a statute which essentially is an antitrust provision serving the same purposes as the anti-price-discrimination provisions of the Robinson-Patman Act.” City of Lafayette, supra, at 402, n. 19. The Union Pacific Court expressly found that a municipality was a “person” within the meaning of the statute. 313 U. S., at 462-463. See also City of Lafayette, supra, at 401, n. 19. The word “purchasers” has a meaning as inclusive as the word “person.” See 80 Cong. Rec. 6430 (1936) (remarks of Sen. Robinson) (“The Clayton Antitrust Act contains terms general to all purchasers. The pending bill does not segregate any particular class of purchasers, or exempt any special class of purchasers”). The only apparent difference between the scope of the relevant laws is the extent to which the activities complained of must affect interstate commerce. Congress’ decision in the Robinson-Patman Act not to cover all transactions within its reach under the Commerce Clause, see Gulf Oil Corp. v. Copp Paving Co., 419 U. S. 186, 199-201 (1974), does not mean that Congress chose not to cover the same range of “persons” whose conduct “in commerce” is otherwise subject to the Act. Indeed, the House and Senate Committee Reports specifically state that “[t]he special definitions of section 1 of the Clayton Act will apply without repetition to the terms concerned where they appear in this bill, since it is designed to become by amendment a part of that act.” H. R. Rep. No. 2287, 74th Cong., 2d Sess., pt. 1, p. 7 (1936); S. Rep. No. 1502, 74th Cong., 2d Sess., 3 (1936). See 80 Cong. Rec. 3116 (1936) (remarks of Sen. Logan) (“[M]any have complained because the provisions of the bill apply to ‘any person engaged in commerce.’... The original Clayton Act contains that exact language, and it is carried into the bill under consideration. The language of the Clayton Act was used because it has been construed by the courts”). Given their common purposes, it should not be surprising that the common terms of the Clayton and Robinson-Patman Acts should be construed consistently with each other. See id,., at 8137 (remarks of Rep. Michener) (“The Patman-Robinson bill does not suggest a new policy or a new theory. The Clayton Act was enacted in 1914, and it was the purpose of that act to do just what this law sets out to do”); id., at 3119 (remarks of Sen. Logan) (purpose of Robinson-Patman bill is to strengthen Clayton Act); id., at 6151 (address by Sen. Logan) (same). Justice O’Connor, in her dissenting opinion, questions our use of antitrust cases to define a word common to the antitrust laws. She would distinguish all of these cases uniformly holding States to be included in the word “persons,” because none has held “that States or local governments are persons for purposes of exposure to liability as purchasers under the provisions of the Clayton Act.” Post, at 177 (emphasis in original). The dissent takes no notice, however, of our decision last Term in Community Communications Co. v. City of Boulder, 455 U. S. 40, 56 (1982), in which the Court stated that the antitrust laws, “like other federal laws imposing civil or criminal sanctions upon ‘persons,’ of course apply to municipalities as well as to other corporate entities.” No authority is cited for the dissent’s distinction between “persons” entitled to sue under the antitrust laws and “persons” subject to suit under those laws. See, e. g., Pfizer Inc. v. Government of India, supra, at 312-313 (noting “broad scope of the remedies provided by the antitrust laws”) (applying Sherman Act eases to construe Clayton Act); Mandeville Island Farms, Inc. v. American Crystal Sugar Co., 334 U. S. 219, 236 (1948) (“[Sherman] Act is comprehensive in its terms and coverage, protecting all who are made victims of the forbidden practices by whomever they may be perpetrated”) (emphasis added). See, e. g., National Gerimedical Hospital & Gerontology Center v. Blue Cross of Kansas City, 452 U. S. 378, 388 (1981); City of Lafayette, 435 U. S., at 398, 399; Abbott Laboratories v. Portland Retail Druggists Assn., Inc., 425 U. S. 1, 11-12 (1976); United States v. National Assn. of Securities Dealers, Inc., 422 U. S. 694, 719-720 (1975). In one important sense, retail competition from state agencies can be more invidious than that from chainstores, the particular targets of the Robinson-Patman Act. Volume purchasing permits any large, relatively efficient, retail organization to pass on cost savings to consumers, and, to that extent, consumers benefit merely from economy of scale. But to the extent that lower prices are attributable to lower overhead, resulting from federal grants, state subsidies, free public services, and freedom from taxation, state agencies merely redistribute the burden of costs from the actual consumers to the citizens at large. An exemption from the Robinson-Patman Act could give state agencies a significant additional advantage in certain commercial markets, perhaps enough to eliminate marginal or small private competitors. Consumers, as citizens, ultimately will pay for the full costs of the drugs sold by the state agencies involved in this case. Because there is no reason to assume that such agencies will provide retail distribution more efficiently than private retail pharmacists, consumers will suffer to the extent that state retail activities eliminate more efficient, private retail distribution systems. Justice O’Connor’s dissenting opinion repeatedly emphasizes that Congress in 1936 did not focus specifically on the issue presented here. See post, at 180, 182, 187, and n. 10. This may well be true, as the likelihood of state entities competing in the private sector was remote in 1936. It cannot be contended, however, that Congress specifically intended to allow the competition at issue here. In any event, the absence of congressional focus is immaterial where the plain language applies. See, e. g., United States v. South-Eastern Underwriters Assn., 322 U. S. 533, 556-558 (1944); Browder v. United States, 312 U. S. 335, 339 (1941); De Lima v. Bidwell, 182 U. S. 1, 197 (1901). “[Rep.] Lloyd: Would this bill, in your judgment, prevent the granting of discounts to the United States Government? “Mr. Teegarden: Not unless the present Clayton Act does so.... “[Rep.] Lloyd: For instance, the Government gets huge discounts.... Now, would that discount be barred by this bill? “Mr. Teegarden: I do not see why it should, unless a discount contrary to the present bill would be barred — that is, the present law — would be barred by that bill. “Aside from that, my answer would be this: The Federal Government is not in competition with other buyers from these concerns.... “The Federal Government is saved by the same distinction.... They are not in competition with anyone else who would buy. “[Rep.] Hancock: It would eliminate competitive bidding all along the line, would it not, in classes of goods that would be covered by this bill? “Mr. Teegarden: You mean competitive bidding on Government orders? “[Rep.] Hancock: Government, State, city, municipality. “Mr. Teegarden: No; I think not. “[Rep.] Michener: If it did do it, you would not want it, would you? “Mr. Teegarden: No; I would not want it. It certainly does not eliminate competitive bidding anywhere else, and I do not see how it would with the Government. “[Rep.] Hancock: You would have to bid to the city, county, exactly the same as anybody else; same quantity, same price, same quality? “Mr. Teegarden: No. “[Rep.] Hancock: Would they or could they sell to a city hospital any cheaper than they would to a privately-owned hospital, under this bill? “Mr. Teegarden: I would have to answer it in this way. In the final analysis, it would depend upon numerous questions of fact in a particular case. If the two hospitals are in competition with each other, I should say then that the fact that one is operated by the city does not save it from the bill. If they are not in competition with each other, then they are in a different sphere. “The facts of the situation are not present upon which to predicate a discrimination, in the nature of the case. I do not see that that question becomes any different under this bill from what it is under the present section 2 of the Clayton Act, for that bill also prohibits discrimination generally in the same terms that this does. But it differs in the breadth of the exceptions. That is the only difference between the two bills.” Hearings on H. R. 8442 et al. before the House Committee on the Judiciary, 74th Cong., 1st Sess., 208-209 (1935) (emphasis added) (hereinafter 1935 Hearings). Justice Stevens agrees that state and local governments may be “purchasers” within the meaning of the Robinson-Patman Act. See post, at 171. He joins in Justice O’Connor’s dissent, however, on the basis of a novel theory: that state and local agencies may never be in “competition” with private parties within the meaning of the Act. See ibid. This is an economic fiction: If in fact a State participates in the private retail pharmaceutical market, it competes with the private participants. Justice Stevens relies on one statement by witness Teegarden in the 1935 House Hearings, but attaches no significance to a further statement by the same witness: “In the final analysis, it would depend upon numerous questions of fact in a particular case. If the two hospitals are in competition with each other, I should say then that the fact that one is operated by the city does not save it from the bill.” See 1935 Hearings, at 209 (emphasis added). Teegarden subsequently submitted a written brief to the House Committee. He first rejected outright the desirability of any exemptions. See id., at 249. He then posed the question whether “the bill [would] prevent competitive bidding on Governmental purchases below trade price levels.” He stated that “[t]he answer is found in the principle of statutory construction that a statute will not be construed to limit or restrict in any way the rights, prerogatives, or privileges of the sovereign unless it so expressly provides — a principle inherited by American jurisprudence from the common law....” But he also noted that “requiring a showing of effect upon competition... will further preclude any possibility of the bill affecting the Government.” Id., at 250. All the cases Teegarden cited suggest that this sovereign-exception rule of statutory construction simply means that a government, when it passes a law, gives up only what it expressly surrenders. While the Robinson-Patman Act was pending before Congress, the Court stated that it could “perceive no reason for extending [the presumption against binding the sovereign by its own statute] so as to exempt a business carried on by a state from the otherwise applicable provisions of an act of Congress, all-embracing in scope and national in its purpose, which is as capable of being obstructed by state as by individual action.” United States v. California, 297 U. S. 175, 186 (1936). See California v. Taylor, 353 U. S. 553, 562-563 (1957). In the context of the Robinson-Patman Act, the rule of statutory construction on which Teegarden relied supports, at the most, an exemption for the Federal Government’s purchases. The existence of such an exemption is not before us. Cf. United States v. Cooper Corp., 312 U. S. 600, 604-605 (1941) (United States not a “person” under the Sherman Act for purposes of suing for treble damages). Moreover, Teegarden clearly assumed that governmental purchasing would not compete with private purchasing. That assumption, however, is inapplicable here. Six months after the Act was passed, the Attorney General of the United States responded to an inquiry from the Secretary of War regarding the Act’s application “to government contracts for supplies.” 38 Op. Atty. Gen. 539 (1936). In ruling that such contracts are outside the Act, the Attorney General explained: “[Statutes regulating rates, charges, etc., in matters affecting commerce do not ordinarily apply to the Government unless it is expressly so provided; and it does not 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_treat
B
What follows is an opinion from a United States Court of Appeals. Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals. PELTON CASTEEL, INC., et al., Plaintiff-Appellant, v. Ray MARSHALL, Secretary of Labor, United States Department of Labor, Defendant-Appellee. No. 78-1770. United States Court of Appeals, Seventh Circuit. Argued Nov. 7, 1978. Decided Dec. 20, 1978. John W. Brahm, Milwaukee, Wis., for plaintiff-appellant. Charles I. Hadden, Washington, D. C., for defendant-appellee. Before CUMMINGS, PELL and WOOD, Circuit Judges. CUMMINGS, Circuit Judge. The question before us is whether the district court properly denied Pelton Casteel, Inc.’s motion to quash an administrative inspection warrant, simultaneously holding that company in civil contempt for refusing to comply with the warrant. We affirm. The warrant involved in this case originally stemmed from an inspection of the Company’s former plant in Milwaukee, Wisconsin, by compliance officers representing the Secretary of Labor under the Occupational Safety and Health Act of 1970 (29 U.S.C. § 651 et seq.). Such officers are authorized to inspect workplaces and issue citations describing safety and health violations and to fix abatement times and civil penalties if they discover violations of the Act (29 U.S.C. §§ 657-659). The Act is administered by the Department of Labor’s Occupational Safety and Health Administration (OSHA). Pursuant to that statute and regulations thereunder representatives of the petitioner Secretary of Labor inspected the Company’s Milwaukee plant on December 20,1973. As a result of this health inspection, a “nonserious violation” citation was issued on June 5,1974, with respect to six items. Various abatement dates were proposed together with penalties of $240. Since the Company did not contest the citation within 15 days, it became a final abatement order under 29 U.S.C. § 659(a). On September 12 and 13, 1977, OSHA inspector conducted another health inspection of the Milwaukee plant to determine compliance with the 1974 abatement order and found unabated “other than serious” exposures to respirable silica. This resulted in the imposition of various abatement dates but no penalty. At the same time, there was an inspection with respect to coal tar pitch volatiles resulting in a November 22 “serious violation” citation with a $600 penalty and additional abatement dates, but the serious portion of this citation was withdrawn by the Area Director of OSHA on December 13, 1977. However, his letter said the “serious” designation was being withdrawn “only because of a technicality in procedure * * * and that the citation did reflect a serious hazard and that, the withdrawal of the citation in no way indicates that a potential hazard does not exist” (App. 39). On April 6,1978, the Area Director reminded the Company that OSHA expected a report from the Company as to corrective action with respect to all violations. The letter of April 6 closed by stating: “May we have this report by April 17, 1978, so this file can be closed.” The Company submitted the requested report by letter of April 11, 1978 (App. 22). In March 1977, the Company opened a new facility in Oak Creek, Wisconsin. It became fully operational in May 1977. Some of the operations which had given rise to the 1974 citation were moved to the new Oak Creek plant, whereas others remained at the old Milwaukee plant (App. 22). The latter were the subject of the September follow-up inspection at the Milwaukee plant, and the moved operations were the target of the attempted inspection at issue in this case. OSHA had asserted that Casteel asked for more time to abate the 1974 violations on the ground that some of the operations would be moved to the new plant, which would ameliorate the problem. Casteel has not contested this. On September 13, 1977, on the occasion of the followup inspection of the Milwaukee plant, Fred Boelter, compliance safety and health officer of OSHA, allegedly told Harold M. Sot-ski, the Company’s vice president, manufacturing, that “any operation that had been previously cited [by OSHA] but was no longer at the Milwaukee location would now be removed from the active citation list.” No employee complaints have been submitted to the Secretary of Labor concerning the Oak Creek facility. Both plants are still in operation. On March 27, 1978, two compliance officers of OSHA presented themselves at the Company’s Oak Creek plant to conduct an investigation. One of the officers, Fred Boelter, told Company Vice President Sot-ski that “the purpose of the investigation was a follow-up inspection as well as a new inspection at a new facility.” However, Boelter admitted that the investigation was not precipitated by an employee complaint. When Sotski refused entry, Boelter told him that because of his refusal, he should expect a more thorough and detailed inspection when the compliance officers returned (App. 22). On March 28, Boelter and a fellow compliance officer of OSHA applied to Magistrate McBride in Milwaukee for an inspection warrant for the Oak Creek plant. In paragraph 2 of the application the officers stated that the desired inspection was part of a follow-up to a previous inspection at the Company’s Milwaukee workplace where they had found that the Company’s employees were exposed to numerous “serious health hazards” involving “respirable quartz silica, respirable nuisance dust, iron oxide and copper fumes.” Coal tar pitch volatiles, the cause of the serious violation citations of November 22, 1977, were not mentioned, perhaps because coal tar pitch was apparently used only at the Milwaukee plant. The applicants stated that an inspection of the new plant was required to ensure abatement of the previous health hazards. The application also stated in “boilerplate” language: “6. The inspection and investigation will extend to the factory, plant, establishment or other area, workplace, or environment where work is performed by employees of the employer, and to all pertinent conditions, structures, machines, apparatus, devices, equipment, materials, and all other things therein (including records, files, papers, processes, controls, and facilities) bearing on whether this employer is furnishing to its employees employment and a place of employment which are free from recognized health hazards that are causing or are likely to cause death or serious physical harm to its employees, and whether this employer is complying with the occupational safety and health standards promulgated under the Act and the rules, regulations, and orders issued pursuant to the Act.” (Emphasis supplied.) Acting upon this application and pursuant to Section 8(a) of the Act (29 U.S.C. § 657(a)) Magistrate McBride issued the requested warrant on the same date after finding that probable cause had been shown by OSHA’s sworn application. The warrant stated that it was “based on the grounds set forth in this warrant application” and was issued so that OSHA could determine whether the Company’s Oak Creek place of employment was free “from recognized hazards that are causing or are likely to cause death or serious physical injuries to its employees, and whether this employer is complying with the occupational safety and health standards promulgated under the Act and the rules, regulations, and orders issued pursuant to the Act.” This language was derived from paragraph 6 of the application. Two days later, the same compliance officers returned to the Oak Creek plant with the warrant for inspection signed by Magistrate McBride. Boelter repeated that the inspection was a follow-up of the old citations at the Milwaukee plant as well as a new inspection, although there were no employee complaints. Again Sotski denied entry to the compliance officers. On April 24, 1978, the Secretary of Labor petitioned the district court to hold the Company, Vice President Sotski and factory superintendent Jerome Dziedzic in civil contempt of court for their refusal to comply with the March 28 inspection warrant. Nine days later the Company filed a motion to quash the inspection warrant. The motion was supported by two affidavits. The affidavit of superintendent Dziedzic stated that in 1977 and in 1978 there had been no occupational illnesses, no fatalities, and no permanent disabilities at the Oak Creek facility and that in 1977 there had been only 11 lost workday cases and in 1978 only one. Sotski’s affidavit showed that the Company had received no serious citations at its Milwaukee plant except the coal tar pitch one that had been withdrawn. The affidavit also showed that in constructing its Oak Creek plant the Company had contracted with environmental engineers to insure installation of equipment in its new plant according to OSHA standards, that the Company had spent in excess of $1,000,000 to comply with OSHA’s dust and fume standards, and that an “in-plant engineering department constantly monitors equipment to insure compliance with OSHA’s standards” (App. 22). On May 5, 1978, the district court heard legal arguments with respect to the Secretary’s petition for contempt and the Company’s motion to quash the inspection warrant. At the conclusion of the arguments, the district judge announced his decision holding the respondents in contempt and denying their motion to quash the inspection warrant. First of all, he ruled that the obtaining of a warrant by the Secretary avoided a Fourth Amendment problem, citing Marshall v. Chromalloy American Corporation, 433 F.Supp. 330 (E.D.Wis.1977). He then held that the Magistrate had jurisdiction under Rule 1(7) of the Rules of the United States District Court for the Eastern District of Wisconsin promulgated under 28 U.S.C. § 636(a). As to the representation to the Magistrate that “serious health hazards” had been found at the Company’s Milwaukee plant, Judge Gordon stated that this did not mislead the Magistrate because the application “described in detail the nature of the inspection that was to be undertaken” (Tr. 22). Probable cause was found to exist because the “moving of the portion of the plant which produced the [silica] pollutant raised a fair question in the Plaintiff’s mind that this offensive material may be continuing in the [new] plant” (Tr. 33). A fortnight later, the district court entered an order embodying his oral opinion and stating that the respondents could purge themselves of contempt by permitting compliance officers to conduct an inspeetion of the Oak Creek plant. Respondents were also required to pay the Secretary of Labor $100 for litigation costs he had incurred, and the Secretary was authorized to reapply for “other penalty” if the respondents should not comply within 20 days. However, the order was stayed pending appeal. The Magistrate’s Jurisdiction The Company first argues that Magistrate McBride was without jurisdiction to issue this warrant. However, the Magistrate Rules of the United States District Court for the Eastern District of Wisconsin provide that each magistrate appointed by that court is authorized to perform the duties prescribed by 28 U.S.C. § 636(a). That statute permits a district judge (1) to designate a magistrate to determine any pretrial matters pending before the court (with certain immaterial exceptions) and to conduct hearings, including evidentiary hearings, and (2) to assign a magistrate such additional duties as “are not inconsistent with the Constitution and laws of the United States.” Rule 1(7) of the district court’s local rules (which are expressly authorized as to magistrates by 28 U.S.C. § 636(b)(4)) provides that each magistrate appointed by the court below is authorized to issue administrative inspection warrants. We fully agree with the decision in Marshall v. Multi-Cast Corporation, 6 OSHC 1486, 1490 (N.D.Ohio, 1978), that the combination of 28 U.S.C. § 636(a) and a pertinent local rule “is a more than adequate foundation for the authority of the magistrates in this district to issue administrative inspection warrants to OSHA representatives.” Moreover, we recently affirmed Northwest Airlines, Inc., 437 F.Supp. 533 (E.D.Wis., 1977), where the district court held that the magistrate did have jurisdiction. In the Matter of: Establishment of Inspection: Northwest Airlines, Inc., 587 F.2d 12 (7th Cir. 1978). Throughout that opinion we referred to what information must be in an application for an OSHA inspection warrant to enable the magistrate to perform his functions. Thus we necessarily concluded sub silentio that a magistrate does have jurisdiction to issue an inspection warrant of this nature. We adhere to that decision in this case. This Warrant Does Not Fail Because of a Misrepresentation of Fact Paragraph 2 of the application for the inspection warrant provides as follows: “The desired inspection is a part of a followup to a previous inspection at the employer’s former workplace wherein it was found that the employer’s employees were exposed to numerous health hazards such as respirable quartz silica, respirable nuisance dust, iron oxide and copper fumes. These exposures were deemed serious health hazards and now require subject inspection to ensure abatement of said previously identified health hazards and violations of the safety and health regulations of the Act.” (Emphasis supplied.) The Company insists that the use of the words “serious health hazards” in paragraph 2 was a misrepresentation of fact that may have illegally motivated the magistrate to issue the warrant, since there had never been any citation of the Company for a “serious violation" issued by OSHA with respect to these four hazards. As the appellee points out, paragraph 2 of the application does not state that the Company had been cited for a serious violation, but merely that there were violations which constituted serious health hazards. “Non-serious” violations are defined by OSHA as violations which do not fall within the statutory definition of serious, but which nonetheless have “a direct or immediate relationship to occupational safety or health” (App. 29). Certainly, some such violations constitute what would commonly be thought to be serious health hazards. Moreover, as counsel for OSHA informed Judge Gordon, OSHA has reevaluated exposure to respirable silica based on research done since the 1974 citation, and has found such exposure to be a potentially serious hazard. Indeed in a field memorandum issued to its area directors in June 1977, OSHA has reclassified silica exposure violations as “serious” (Tr. 7). Consequently, it is immaterial that paragraph 6 of the warrant application and the latter part of the warrant employ language which also appears in the statutory definition of a serious violation. In any event the magistrate was not misled, because he did not rely on the existence of a “serious” violation by the Company. His warrant does not mention such a violation. Moreover, he was told exactly what had been found at the old plant that gave rise to concern that a violation might exist at the new plant. The right to inspect under the Act is not limited to conditions that could give rise to “serious” violations, so that it was not necessary for OSHA to establish the existence of such a violation in order to obtain a warrant. Although the language of the application might have been drafted with more care, the mere reference to serious health hazards was not materially misleading, for the Company has not shown that respirable silica exposure is so harmless as to justify its refusal to permit inspection. Accordingly, we would be unwarranted in overturning the district court’s finding that there was “no evidence that the magistrate was misled” (Tr. 22). The Company has argued that the fact that both paragraph 6 of the warrant application and the latter part of the warrant refer to “death or serious physical harm,” which is part of the definition of a “serious violation,” shows that the magistrate was misled into believing such a violation has been established. We disagree. As previously noted, the disputed language tracks the statutory duties of the employer, which include avoiding both serious violations and other violations of the Act. Moreover, read in the context of the whole application and whole warrant, the disputed passages are mostly boilerplate descriptions of the scope and object of the search, not descriptions of the grounds for thinking a search of this particular facility was necessary. Those grounds were set out in paragraph 2 of the application, describing the results of the prior inspection. It is immaterial that in September 1977 an OSHA representative told Vice President Sotski that any previously cited Milwaukee operation moved to Oak Creek would be removed from the active citation list and that the file on the Milwaukee plant was closed on April 11, 1978 (App. 22), because the inspection at issue here was a follow-up inspection on silica and kindred operations that had been moved to the Oak Creek plant as well as a new inspection of that facility (App. 22). Showing of Probable Cause In Marshall v. Barlow’s, Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305, the Supreme Court, delineating what would constitute probable cause justifying the issuance of an OSHA inspection warrant, held as follows: “Whether the Secretary proceeds to secure a warrant or other process, with or without prior notice, his entitlement to inspect will not depend on his demonstrating probable cause to believe that conditions in violation of OSHA exist on the premises. Probable cause in the criminal law sense is not required. For purposes of an administrative search such as this, probable cause justifying the issuance of a warrant may be based not only on specific evidence of an existing violation but also on a showing that ‘reasonable legislative or administrative standards for conducting an inspection are satisfied with respect to a particular [establishment].’ Camara v. Municipal Court, supra [387 U.S. 523] at 538, 87 S.Ct. [1727] at 1736 [18 L.Ed.2d 930]. A warrant showing that a specific business has been chosen for an OSHA search on the basis of a general administrative plan for the enforcement of the Act derived from neutral sources such as, for example, dispersion of employees in various types of industries across a given area, and the desired frequency of searches in any of the lesser divisions of the area, would protect an employer’s Fourth Amendment rights. We doubt that the consumption of enforcement energies in the obtaining of such warrants will exceed manageable proportions.” (436 U.S. at 320, 98 S.Ct. at 1824.) Here the magistrate found that the grounds stated in the application for the inspection warrant satisfied the probable cause requirement, and the district court agreed, stating as follows: “I find that probable cause exists. The moving of the portion of the plant which produced the [silica] pollutant raised a question of — fair question in the Plaintiff’s mind that this offensive material may be continuing in the plant. The existence of two prior violations all demonstrate that this was not a mere fishing expedition but a search for — reasonable search to find if there were a correction.” (Tr. 23). Although this finding antedated Barlow's, it satisfies the specific evidence prong of the foregoing bifurcated probable cause test established in that case. There had been actual violations of the Act’s compliance and abatement requirements at the Company’s Milwaukee plant, and the Company endeavored to abate those violations in part by moving its operations involving silica to the new facility at Oak Creek. Therefore, it would seem most appropriate for OSHA to inspect the new plant to determine whether there are unabated violative conditions there. If the Company’s new equipment and monitoring are as represented in Vice President Sotski’s affidavit, OSHA should soon be satisfied that the prior violations have abated. It should be obvious that OSHA does not have to take the employer’s word that its new facilities successfully abate the problem. While we cannot condone the OSHA officers’ alleged threat to conduct a more thorough and detailed inspection if the Company should refuse voluntary inspection, that cannot invalidate the inspection warrant. The Company may justifiably complain if the compliance officers should attempt to engage in an over-broad inspection. Compare Dravo Corporation v. Marshall, 578 F.2d 1373 (3d Cir. 1978). The order of May 19, 1978, is affirmed. . Nonserious violations are not defined in the Act, but “serious” violations are defined in 29 U.S.C. § 6660). (See note 9 infra.) . These items concerned: (1) respirable crystalline silica dust, (2) respirable inert or nuisance dust, (3) iron oxide or copper fumes, (4) excessive noise, (5) failure to monitor for asbestos fibers, and (6) failure to provide medical examinations relative to asbestos exposure. . The Secretary’s representatives conducted a safety inspection of the Milwaukee plant on May 16, 1976, and issued an “other than serious” citation alleging 13 violations involving mechanical problems and imposing a penalty of $150. This case does not involve safety inspections so that the May 16 inspection is not germane to this appeal. . The purpose of the search as described in this paragraph of the application (beginning with the phrase “bearing on whether”) tracks the language of Section 5(a) of the Act, which establishes the duty of employers to “furnish * * * a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm” and to “comply with occupational safety and health standards * * (29 U.S.C. § 654(a).) The italicized phrase is also part of the statutory definition of what constitutes a “serious” violation. See note 9 infra. . Judge Gordon pointed out that Matter of Northwest Airlines, Inc., 437 F.Supp. 533 (E.D. Wis.1977) was contra to Chromalloy American insofar as the Northwest Airlines court concluded that if there was a flaw in the procedure under 29 U.S.C. § 657(a) it was not salvageable by the issuance of a warrant. This Court has recently affirmed Northwest Airlines, 587 F.2d 12 (7th Cir. 1978) on the ground that the application for the warrant was inadequate. Chromalloy American is presently under advisement in this Court. . See also Marshall v. Chromalloy American Corporation, note 5 supra. . In Northwest Airlines we invalidated an OSHA inspection warrant on the ground that the application for the warrant was inadequate because it only told the magistrate that “The desired inspection is also part of an inspection and investigative program designed to assure compliance with the Act and is authorized by section 8(a) of the Act.” While paragraph 3 of the present application is identical, the rest of the application contains sufficient information to establish probable cause, as shown infra. Cf. Weyerhaeuser Company v. Marshall, 452 F.Supp. 1375 (E.D.Wis. decided July 3, 1978); California v. Salwasser, 6 OSHC 1602 (Cal.Super.Court 1978). . In this respect the Company relies on Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 2677, 57 L.Ed.2d 667; See v. City of Seattle, 387 U.S. 541, 543, 87 S.Ct. 1737, 18 L.Ed.2d 943; and United States v. Carmichael, 489 F.2d 983, 988 (7th Cir. 1973). . The Act defines a serious violation in 29 U.S.C. § 6660) as follows: “For purposes of this section [17(j)], a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.” . The November 22, 1977, citation for respirable silica at the Milwaukee plant was labeled “other [than serious]” but this may have been because the level of silica was low or because the procedures for citing a violation as “serious” were not followed. This does not undercut OSHA’s contention that respirable silica is now known to have the potential to cause both serious health hazards and violations of the Act which may probably be labeled “serious.” . Section 657(a) of Title 29 authorizes inspections and Section 658(a) provides for citations where inspection reveals a violation of a requirement of Section 654, which includes compliance with all health and safety standards (see note 4, supra), or a violation of any standard, rule, order or regulation promulgated under the Act. . If there had been a material misrepresentation in the application for the warrant, the threat might be some evidence that the misrepresentation was intentional or reckless, which would be necessary to invalidate the warrant under the authority of the cases cited in note 8 supra. However, since the application was not materially misleading, we need not reach this question. . There the court of appeals affirmed without opinion a district court decision rejecting an attack on the breadth of a warrant. (Civil Action No. 77-284, W.D.Pa., decided April 5, 1977.) In the present case no such attack was made below nor in the Company’s briefs on appeal. Question: What is the disposition by the court of appeals of the decision of the court or agency below? A. stay, petition, or motion granted B. affirmed; or affirmed and petition denied C. reversed (include reversed & vacated) D. reversed and remanded (or just remanded) E. vacated and remanded (also set aside & remanded; modified and remanded) F. affirmed in part and reversed in part (or modified or affirmed and modified) G. affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded H. vacated I. petition denied or appeal dismissed J. certification to another court K. not ascertained Answer:
songer_casetyp1_7-3-2
J
What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation - torts". STILES et al. v. OCEAN S. S. CO. Circuit Court of Appeals, Second Circuit. July 3, 1929. No. 339. Bigham, Engler, Jones & Houston, of New York City (James H. Senecal, of New York City, of counsel), for appellants. Haight, Smith, Griffin & Deming, of New York City (Wharton Poor and James MeKown, Jr., both of New York City, of counsel), for appellee. Before MAHTOH, SWAH, and AUGUSTUS. H. HAHD, Circuit Judges.. AUGUSTUS H. HAND, Circuit Judge (after stating the facts as above). It is contended that libelants have no cause of action, because title was in the bank. While the rubber was consigned to Bank of the Manhattan Company, the bank indorsed the bill of lading, and the merchandise was delivered to the Pennsylvania Railroad on the order of Wm. H. Stiles & Co., the indorsee. By the indorsement, when notice thereof had been given to the carrier, libelants became vested with title to the goods and a party to the contract of carriage. New York Personal Property Law (Consol. Laws N. Y. e. 41) § 219; Gubelman v. Panama R. R. Co., 192 App. Div. 165, 182 N. Y. S. 403. If, as was stated at the trial, the bank still held a trust receipt until the money which it had advanced to finance the importation was repaid, such title as it retained was a mere security title, which left no dominant rights of ownership in the bank. Moreover the drafts which accompanied the bill of lading were paid by libelants as they became due during the year 1922, so that libelants’ rights became complete in all respects, unhampered by any lien of the bank. In re A. E. Fountain (C. C. A.) 282 F. 816, 25 A. L. R. 319; The Trust Receipt as Security, Columbia Law Review vol. 22, Hos. 5 and 6. Kleinhans v. Canadian Pacific Ry. Co., 203 App. Div. 715, 196 N. Y. S. 862, is relied on as holding that the libelants cannot sue. But in that case the bill of lading was drawn to order of vendor, who delivered it to a bank with the indorsement thereon: “Deliver goods only on payment of draft.” The buyer took up the draft and sued the carrier, because the goods were damaged. The plaintiff was not the indorsee of the bill of' lading and was held to have obtained no title until the delivery of the goods, because the bill of lading ran to the seller, who had reserved title until payment. New York Personal Property Law, § 101 (2). Even if the drafts had not been paid by libelants, the bank would have held a mere security title under the trust receipt, and libelants, like a chattel mortgagor in possession, could sue for damages to the cargo, of which they were 'the equitable owners. Rogers v. King, 66 Barb. (N. Y.) 495; Dahill v. Booker, 140 Mass. 308, 5 N. E. 496, 54 Am. Rep. 465; Luse v. Jones, 39 N. J. Law, 707; Wilkes v. Southern R. Co., 85 S., C. 346, 67 S. E. 292, 137 Am. St. Rep. 890, 21 Ann. Cas. 79. They at least had the remedies of a bailee. There was abundant proof that the rubber was damaged on the voyage. The re- ceipt for the merchandise in apparent good order and condition, when followed by a delivery of the cases stained and wet with salt water, placed upon the respondent the burden of explaining the damage, and showing that it was occasioned by a peril for which it was not responsible. The Folmina, 212 U. S. 355, 29 S. Ct. 363, 53 L. Ed. 546, 15 Ann. Cas. 748; The Rosalia (C. C. A.) 264 F. 285. No explanation was seriously attempted. Respondent did not even call its own surveyor, who, with libelants’ surveyor, had apparently seen the damaged merchandise on the pier, but relied on the absence of notation of salt water damage by the lighterman of the Pennsylvania Railroad and by its own delivery clerk. Damage was sufficiently proved. It is further contended by respondent that libelants failed to present notice in writing of their claim of loss before the goods were removed, as the bill of lading required. This contention is based on the phraseology of libelants’ letter of May 27, which, after giving notice of “heavy sea water damage,” says, in the last clause: “We hereby notify you that we shall file claim against you when the extent of damage has been properly ascertained.” All the bill of lading required was a “notice in writing of the claim * * before the removal of the goods from the wharf.” The purpose of the provision was “not to escape liability, but to facilitate prompt investigation.” Georgia, Florida & Alabama Ry. v. Blish Milling Co., 241 U. S. 190, 36 S. Ct. 541, 60 L. Ed. 948; The Persiana (C. C. A.) 185 F. 396. Certainly the letter of May 27th gave notice that there was a claim, and requested respondent to have its surveyor examine the merchandise. Apparently he saw the damage with libelants’ surveyor, and the respondent thus obtained knowledge of the condition of the goods. It is reasonable to suppose that the surveyor was not called, and no substantial defense upon the merits was made, because such a defense was impossible. In any event, the respondent was given notice that there was a claim for damages. That notice was sufficient compliance with the clause in the bill of lading, even when coupled with the statement that the claim would be filed “when the extent of damage has been * * * ascertained.” Last of all, defendant relies on the defense of laches. It is true that there was great delay in bringing suit, but there is no proof that the respondent was unduly prejudiced. Courts of admiralty apply the state statute of limitations in determining whether a claim is barred, unless some exceptional circumstances exist. Lincoln v. Cunard Steamship Co. (C. C. A.) 221 F. at page 624; David v. Smokeless Fuel Co. (C. C. A.) 196 F. 753, at page 755; The West Aleta (C. C. A.) 12 F.(2d) 721; F. S. Royster Guano Co. v. U. S. (C. C. A.) 18 F.(2d) 469. There has been no showing here that witnesses have disappeared. We can discover no reason for1 holding laches a bar which would not apply to almost any suit that had not been brought for three or four years after the cause of action arose. Respondent may have thought that Stiles & Co. had delayed so long that it had dropped its claim, but this circumstance alone cannot limit the latter’s right. The decree is reversed, and the cause remanded, with directions to enter an interlocutory decree for libelants, with the usual reference to report as to damages. Question: What is the specific issue in the case within the general category of "economic activity and regulation - torts"? A. motor vehicle B. airplane C. product liability D. federal employer liability; injuries to dockworkers and longshoremen E. other government tort liability F. workers compensation G. medical malpractice H. other personal injury I. fraud J. other property damage K. other torts Answer:
songer_procedur
A
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant. Berlin L. LAWSON, Appellant, v. BURLINGTON INDUSTRIES, INC., Appellee. No. 81-2192. United States Court of Appeals, Fourth Circuit. Argued April 1, 1982. Decided July 22, 1982. Certiorari Denied Oct. 18, 1982. See 103 S.Ct. 257. Jack E. Ruby, Winston Salem, N. C., for appellant. William P. H. Cary, Greensboro, N. C. (Thornton H. Brooks, Kathrine A. McLendon, Brooks, Pierce, McLendon, Humphrey & Leonard, Greensboro, N. C., on brief), for appellee. Before BUTZNER and SPROUSE, Circuit Judges, and KISER, District Judge. Honorable Jackson L. Kiser, United States District Judge for the Western District of Virginia, sitting by designation. SPROUSE, Circuit Judge: Berlin L. Lawson brought this suit under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621 et seq., alleging that Burlington Industries, Inc. unlawfully terminated his employment and refused to transfer him to an acceptable position because of his age. The district court granted summary judgment for the defendant on the grounds that Lawson failed to file his discrimination charge within the statutory time period, and that no equitable justifications for tolling the statutory period existed. We affirm. Lawson was first hired by Burlington in 1959, and in 1979 he was working at the transportation facility of Klopman Mills, a division of Burlington. On April 1,1979, all employees were informed that the facility was closing, that Burlington would attempt to find new positions for employees displaced by the closing, and that those employees not placed by June 30, 1979 would be terminated. Employees terminated because of the facility closing would have their benefits and company service credit restored if they were rehired within 270 days of their termination. Lawson’s final day of work was June 30, 1979, although he was given severance pay through December, 1979. Shortly before his termination Lawson, then age 44, complained to Burlington officials that a younger co-worker, age 38, was being transferred to an available position elsewhere in the company while he was being laid off. Lawson had more service with the company and believed he was better qualified, so he concluded that age discrimination was the motive behind the decision to transfer the younger worker rather than himself. Lawson closed his retirement and profit-sharing accounts with Burlington when he was terminated; he received a lump-sum distribution of cash and stock, plus his severance pay, on July 19, 1979. Burlington offered Lawson a clerical job in another city on or about October 1, 1979, but he refused the position because of the inadequate salary. He was then told by a company official that “maybe we’ll come up with something else ... if we do, we’ll be in touch.” Lawson filed his age discrimination charge with the EEOC on February 5, 1980. He testified that he had considered filing the charge earlier, but had refrained because he hoped to be recalled. The EEOC charge dealt only with Burlington’s decision to lay off Lawson while transferring the younger employee. Lawson filed suit in district court in June, 1980, claiming that age discrimination was the motive behind both the layoff and the October offer of a clerical position, which Lawson construed as a refusal to rehire him. Burlington moved to dismiss the complaint for lack of subject matter jurisdiction, Fed.R.Civ.P. 12(b)(1), or alternatively for summary judgment, Fed.R.Civ.P. 56, on the grounds that (1) Lawson had not filed his EEOC charge within 180 days after the alleged unlawful practice occurred and (2) his complaint was impermissibly broad as it raised issues not included in the EEOC charge. Following oral argument by both parties the district court granted summary judgment for the defendants, ruling that “[wjith respect to the layoff on June 30, 1979, his charge of discrimination was filed more than 180 days after such layoff, and with respect to the other acts of discrimination alleged in the complaint, no charge of discrimination had been filed, and more than 180 days have now expired. Plaintiff has not presented a justification for this failure, which is sufficient to entitle him to equitable relief.... ” Lawson first contends that the district court erred in dismissing from his complaint those allegations which were not included in his February 5, 1980 EEOC charge. We disagree. Illegal layoff — the charge which appeared in the EEOC notice — does not encompass an allegation of illegal failure to rehire. It is well established that a layoff from employment constitutes a completed act at the time it occurred, Griffin v. Pacific Maritime Assoc., 478 F.2d 1118 (9th Cir.), cert. denied, 414 U.S. 859, 94 S.Ct. 69, 38 L.Ed.2d 109 (1973), and that an employer’s failure to recall or rehire does not constitute a continuing violation of the ADEA. Each alleged discriminatory recall constitutes a separate and completed act by the defendant, which triggers a new 180 day period. Morris v. Frank Ix & Sons, Inc., 486 F.Supp. 728 (W.D.Va.1980). As no EEOC charge relating to recall was filed within 180 days of October 1, 1979, the district court’s determination that Lawson failed to file within the statutory time period was correct. Lawson next contends that the grant of summary judgment was improper because there exists a genuine issue of fact with respect to whether equitable tolling of the 180-day requirement occurred. Lawson had an opportunity at the hearing on Burlington’s motion for summary judgment to present those facts which he asserts should equitably toll the 180-day requirement. After hearing the evidence, the district court determined that no genuine issue of fact with respect to equitable tolling existed and that Burlington was entitled to judgment as a matter of law. We agree. Lawson maintains that equitable tolling is justified because his filing of EEOC charges was delayed by his expectation that he would be recalled to work. That expectation arose from three factors: (1) his 6-month severance pay from Burlington, (2) his right to full reinstatement within 270 days of layoff and (3) the offer of a position to him in October, 1979 and Burlington’s representation that he would be considered for future positions. The thrust of Lawson’s contention is that the filing period should be equitably tolled because he believed Burlington would eventually find a position for him. However, the facts are uncontroverted that Burlington in no way misled Lawson or misrepresented his prospects for future employment. Lawson’s optimistic hope that he would be recalled within the 270-day period falls short of demonstrating the “reasonable reliance on the defendant’s conduct or representations” necessary to justify equitable tolling in this situation. See Naton v. Bank of California, 649 F.2d 691 (9th Cir. 1981); Wagner v. Sperry Univac, 458 F.Supp. 505 (E.D.Pa.1978), aff’d mem. 624 F.2d 1092 (3d Cir. 1980). The grant of summary judgment for the defendant by the district court is, therefore, affirmed. AFFIRMED. . 29 U.S.C. § 626(d)(1) provides: (d) No civil action may be commenced by an individual under this section until 60 days after a charge alleging unlawful discrimination has been filed with the [Equal Employment Opportunity Commission], Such a charge shall be filed— (1) within 180 days after the alleged unlawful practice occurred.... . Cf. Zipes v. Transworld Airlines, - U.S. -, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982) (180-day time limit for filing charges under Title VII of the Civil Rights Act of 1964 is not a jurisdictional prerequisite to suit in a district court). Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_r_fed
0
What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. ALBRECHT et al. v. INDIANA HARBOR BELT R. CO. No. 9827. United States Court of Appeals Seventh Circuit. Dec. 20, 1949. John H. Gately, Chicago, Ill. (Joseph F. Burns, Chicago, Ill., of counsel), for appellants. Sidney C. Murray, Chicago, Ill., Marvin A. Jersild, Victor L. Lewis, Chicago, Ill., Owen W. Crumpacker, Edwin H. Friedrich, Hammond, Ind., and Crumpacker & Fried-rich, Hammond, Ind., for appellee. Before MAJOR, Chief Judge, and DUFFY and FINNEGAN, Circuit Judges. DUFFY, Circuit Judge. Plaintiffs are or were yardmen employed by the defendant Indiana Harbor Belt Railroad Company, an Indiana corporation. They seek damages for alleged violations of the provisions of a contract relating to wages, hours, and working conditions. The contract relied upon was a written contract entered into December 20, 1919, between the General Managers’ Committee, representing various railroad companies, and the Brotherhood of Railroad Trainmen, a labor organization. The complaint alleges that plaintiffs are or were during the period in question members of the Brotherhood and that they are entitled to all of the benefits of the agreement. Plaintiffs claim violations of the agreement over a period extending from August 13, 1926, to December 12, 1938. Plaintiffs allege that under said contract the railroad agreed to furnish a foreman and two helpers for each engine operating in the Blue Island Illinois yards, but failed to furnish such crews. The theory of Count I of the complaint is that the railroad failed to provide work which plaintiffs were willing to perform and of Count II that the defendant railroad required some of the plaintiffs to perform two types of work in a single day, and that they received pay for only the work done on one shift. The complaint further alleges that the officials of the local Brotherhood lodge presented their grievances to the railroad company, based on said claimed violations, and that when they received no satisfaction they filed their claims with the Eastern Board of Adjustment, that said board was subsequently discontinued and succeeded by a new board, but that plaintiffs’ claims were never presented to the new board. Defendant moved to dismiss the complaint upon the ground that it failed to state a claim upon which relief can be granted, and contends in particular that the action is barred by the Indiana six-year statute of limitations. Burns Ind.Stats. Anno. (1933), Sec. 2-601. Plaintiffs urge that under Rule 8 (c), F.R.C.P., 28 U.S.C.A., it is improper to consider a plea of the statute of limitations on a motion to dismiss. As the legal effect of the bar clearly appears from the complaint, this contention cannot be sustained. Anderson v. Linton, 7 Cir., 1949, 178 F.2d 304. Plaintiffs, all of whom are residents of Illinois, sue defendant, an Indiana corporation, upon a contract executed in Illinois for the purpose of governing wages and working conditions at the Blue Island Yards located in Illinois. The alleged breaches of contract occurred in Illinois. No citation of authority is needed for the proposition that the laws of Illinois govern the interpretation of such a contract. This court has already passed on the identical contract in the case of Kordewick v. Indiana Harbor Belt R. Co., 7 Cir., 157 F.2d 753. That action was started in the United States District Court for the Northern District of Illinois. The plaintiffs there were members of the same Brotherhood as the plaintiffs in the case at bar. This court there held that under Illinois law the contract here under consideration is, in legal effect, an oral contract because parol evidence would have to be introduced to identify the parties and to maintain the action. Although the case at bar was commenced in the District Court of Indiana, the contract nevertheless is to be interpreted under Illinois law. It must still be regarded as an oral contract. However, we must here apply the applicable Indiana statute of limitations. Guaranty Trust Co. v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079, 160 A.L.R. 1231. Federal courts are required to give such interpretations to State statutes of limitations as are given to such statutes by the highest court of such States. Moore v. Illinois Central Railroad Co., 312 U.S. 630, 61 S.Ct. 754, 85 L.Ed. 1089. The law of the forum determines whether the action is barred. Karvalsky v. Becker, 217 Ind. 524, 29 N.E.2d 560, 131 A.L.R. 1074; Hobbs v. Ludlow, 199 Ind. 733, 160 N.E. 450. Burns Ind. Stats.Anno. (1933), Sec. 2-601, provide that actions on oral contracts shall be barred unless commenced within six years after the cause of action accrued. The complaint shows on its face that the alleged violations of the contract occurred from August 13, 1926, to December 12, 1938. This action was commenced August 4, 1947. It thus affirmatively appears that this action was not commenced within the six years after the alleged cause of action accrued. It follows that the complaint did not state a claim upon which relief can be granted, and the complaint and action were properly dismissed. Judgment affirmed. 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_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, Plaintiff-Appellee, v. Winston Hall WORTHINGTON, M.D., Defendant-Appellant. No. 80-5354. United States Court of Appeals, Sixth Circuit. Argued Oct. 15, 1982. Decided January 25, 1983. Hal Gerber and Ronald Krelstein, Memphis, Tenn., argued, for defendant-appellant on appeal only and not at trial. W.J. Michael Cody, U.S. Atty., Arthur S. Kahn (argued) and Daniel A. Clancy, Asst. U.S. Attys., Memphis, Tenn., for plaintiffappellee. Before EDWARDS, Chief Circuit Judge, CONTIE, Circuit Judge and WEICK, Senior Circuit Judge. WEICK, Senior Circuit Judge. Appellant, Winston Hall Worthington (defendant or appellant), was indicted by the Federal Grand Jury for the Western District of Tennessee, Western Division, on November 17, 1978, in a 300 count indictment of which 176 counts charged him with making false claims to the United States and the Department of Health, Education and Welfare (HEW), in violation of 18 U.S.C. § 287; 70 mail fraud counts charged him with submitting false and fraudulent Medicaid and Medicare claims to defraud the United States in violation of 18 U.S.C. § 1341; 53 counts charged him with making false statements in Medicaid and Medicare claims in violation of 18 U.S.C. § 1001; in essence the false claims were submitted for medical services not rendered by defendant; and one count charged him with violation of the Racketeer Influenced and Corrupt Organizations Act (RICO) in violation of 18 U.S.C. §§ 1962(c) and 1963. Protracted pre-trial proceedings were conducted which included the transfer of the case from District Judge Bailey Brown to District Judge Robert M. McRae, Jr. A jury was selected in the first trial on April 7, 1980. The court advised the parties on April 8 that three jurors were apparently unable to continue and a mistrial was declared on defendant’s motion. On April 9, a second jury was impaneled. During the second trial, the government dismissed 101 counts of the indictment and the court dismissed the RICO count 138. The defendant was convicted on 82 counts and was sentenced to two years imprisonment and fined $40,000. On appeal, appellant makes the following assignments of error: I. Did the district court err in overruling the defendant’s motion to suppress? II. Was the defendant denied a fair trial and entitled to a mistrial or the granting of a new trial because of jury misconduct? III. Was the defendant denied a fair trial because of judicial misconduct? IV. Was character evidence improperly introduced by the government? V. Is the evidence sufficient to sustain convictions in the following counts: 6, 7,24-26, 76, 78,146,147, 231 and 234-247? VI. Was it plain error when the district court failed to instruct the jury regarding the use of their notes during deliberations? VII. Did the district court err in refusing a request to recall Lynn Haag and Asa Boatman as witnesses? The parties, on May 24, 1982, stipulated, in writing, as to the accuracy of the facts set out in the Counter Statement of Facts on pages 1 et seq. of the government’s brief which stipulation is part of the record on appeal. (Vol. 1 Appendix ix) For the reasons hereinafter set forth, we affirm. I The Motion to Suppress Appellant alleges three reasons to support his contention that the district court erred in refusing to grant his motion to suppress. First, he contends that his May 19, 1980, motion to suppress was timely filed. Second, he states that the scope of the search warrant was too broad. And third, he maintains the affidavit for the search warrant contained nothing which would support the conclusion that his records would be found at his medical office at 1029 Whitney Avenue, Memphis, Tennessee, or that the confidential sources relied upon in the affidavit were reliable and credible. Because we conclude that defendant’s May 19 motion was not timely filed, we need not and do not address the various grounds upon which he now relies. With respect to the timeliness issue, we shall briefly review the relevant sequence of events. On December 21, 1978, defendant filed a “Motion To Suppress Evidence And To Dismiss Or Quash The Indictment”. Parts 3(d) and (e) of the motion stated: (d) The Indictment was obtained solely through the use of illegal, incorrect and prejudicial tactics on the part of the Government. (e) The Indictment was obtained and is supported only by evidence obtained illegally and is the direct result of impermissible conduct on the part of the Government officials investigating the case. In responding to these unsupported, conclusory allegations, the government stated, “The allegations contained in subparagraphs 3(d) and (e) of defendant’s Motion are too insubstantial to be answered specifically. Accordingly, the government generally denies those allegations.” On August 10, 1979, the district court overruled defendant’s Motion to Suppress. Thereafter, on April 7, 1980, just 45 minutes before the first trial was to commence, defendant filed a second “Motion To Suppress Evidence”, citing as his reasons that "... the search warrant is facially insufficient in that it fails to establish any basis for the conclusion that the items sought would be found at that location. Further, defendant submits that the affidavit for the search warrant was executed on 25. 1977. (Emphasis added by counsel). Defendant claims that the affidavit was deficient because the month was not written in. The district court overruled the April 7 Motion to Suppress on grounds of timeliness and on the merits. On April 8 a mistrial was declared for other reasons. A new trial commenced on April 9. Not until the 20th day of the new trial, namely, on May 19, 1980, did defendant “renew” his motion to suppress. The renewed motion alleged for the first time that the evidence should be suppressed because the scope of the search warrant was too broad. The district court concluded that the May 19 motion to suppress was not a renewal of the earlier motion, but rather was a new motion alleging a new reason why the evidence should be suppressed. The court overruled the new motion stating that “. .. it was not filed in accordance with the rules; it is not the renewal of another motion, it’s a new motion, and it is called a renewal to try to get around the rule.” Fed.R.Crim.P. 12 provides: (b) Pretrial Motions. Any defense, objection, or request which is capable of determination without the trial of the general issue may be raised before trial by -motion. Motions may be written or oral at the discretion of the judge. The following must be raised prior to trial: (3) Motions to suppress evidence; (f) Effect of Failure to Raise Defenses or Objections. Failure by a party to raise defenses or objections or to make requests which must be made prior to trial, ... shall constitute waiver thereof, but the court for cause shown may grant relief from the waiver. However, appellant argues this rule is not rigid, citing Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), and United States v. Cassity, 631 F.2d 461 (6th Cir.1980). In Cassity, at page 465, we stated: As the Supreme Court has recognized, the rule requiring criminal defendants to make their suppression motions before trial “is a crystallization of decisions ... requiring that procedure, and is designed to eliminate from the trial disputes over police conduct not immediately relevant to the question of guilt.” Jones v. United States, 362 U.S. 257, 264, 80 S.Ct. 725, 732, 4 L.Ed.2d 697 (1960), overruled on other grounds, United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980). The rationale usually given for removing suppression questions from the trial itself is that “interrupt[ing] the course of the trial for such auxiliary inquires impedes the momentum of the main proceeding and breaks the continuity of the jury’s attention.” (cites omitted) Furthermore, a pre-trial decision whether the challenged evidence is admissible gives the Government the time and flexibility to change its theory of the case, to develop or place greater reliance upon untainted evidence or otherwise to modify its trial strategy in response to an adverse ruling. (Cites omitted) In applying the pre-trial motion rule, “we are dealing with and carrying out an important social policy and not a narrow, finicky procedural requirement.” Jones v. United States, supra, 362 U.S. at 264, 80 S.Ct. at 732. Where the rule’s underlying policy is not implicated, its technical requirements should not be allowed to prevail over constitutional rights. In the case at bar, we believe the rule’s underlying policy is implicated. Defendant, who was represented by at least two, and sometimes three lawyers, had 16 months before his trial began in which to file a motion to suppress on the ground that the search warrant was too general. (He did in fact file numerous motions, including two motions to suppress, but they were on different grounds). Instead, defendant waited until the 20th day of his new trial, which was 41 calendar days after the new trial started, before moving to suppress on the ground the search warrant was too broad. By this time the government had rested its case and defendant’s own lawyers were well along in presenting his defense. Much of the evidence sought to be suppressed had already been admitted in evidence. As the district court correctly observed, this third motion to suppress was not a renewal of one of the earlier motions, but rather was a new motion setting out a new reason why the evidence should be suppressed. It was characterized as a “renewal” in order to avoid the sanctions of Fed.R. Crim.P. 12(f). Granting this untimely motion clearly would have impeded “the momentum of the main proceeding” and would have broken the continuity of the jury’s attention. Moreover, since the government had already rested, it would have no other opportunity to alter its theory of the case or otherwise modify its strategy, as mentioned in Cassity, supra. Fed.R.Crim.P. 12(b) and 12(f) provide that motions to suppress evidence must be raised prior to trial, and that failure to do so shall constitute waiver thereof, unless the court grants relief from the waiver. In the instant case, the district court decided not to grant relief from the waiver. In so exercising its discretion, the court did not abuse it. Appellant further argues that since the district court ruled on the merits of his third motion to suppress, the issue was preserved for appeal. Under the facts of this case, we disagree. The district court overruled the mid-trial motion to suppress on both timeliness grounds and on the merits. That it chose to rule on the merits at all does not alter the fact that the motion to suppress was made in violation of Fed.R. Crim.P. 12(b)(3), nor does it alter the fact that defendant waived the objection under Criminal Rule 12(f). United States v. Baker, 638 F.2d 198, 202 (10th Cir.1980); United States v. Sisea, 503 F.2d 1337, 1349 (2d Cir.1974), cert. denied, 419 U.S. 1008, 95 S.Ct. 328, 42 L.Ed.2d 283 (1974). II Jury Misconduct Appellant next contends that he was denied a fair trial because of jury misconduct; that the district court erred when it failed to grant his motion to set aside the guilty verdicts thus far returned and to declare a mistrial. In all, 198 counts were submitted by the court to the jury. After several days of deliberations, the jury returned guilty verdicts on 26 counts and not guilty verdicts on 20 others, thus leaving 152 counts yet to be decided. The record reveals that the jury foreman, Mr. Barden, either read or heard of a Memphis newspaper article indicating that on the basis of the 26 guilty verdicts thus far returned, defendant could receive a potential sentence of 130 years in prison and a fine of $260,000. Apparently Barden felt the 26 guilty verdicts were enough. He wanted to finish the deliberations quickly. Thus when the jury next met to deliberate, Barden told the other jurors what the potential sentences could be, then announced that he was going to vote not guilty on all remaining counts. This exacerbated the hostility felt by one of the other jurors, Ms. Butler, toward Barden, who stated that Butler told the jury that she had visited defendant’s office and knew that he did not have the equipment to perform certain work. Butler insisted, however, that Bar-den had not listened to her; that she had merely shared the knowledge of medical office practice that she had acquired as a nurse’s aide and she had not referred to the defendant’s offices. As the hostility between Barden and Butler increased, they decided to see the judge to report on each other’s comments. Such a meeting took place with a court reporter present. Thereafter, the judge fully advised all counsel of the conflict. Defense counsel requested the court to set aside the 26 guilty verdicts thus far returned and to declare a mistrial. Instead, the court reread part of its instruction to the jury and told the jurors to resume deliberations. When deliberations proceeded, Butler came to believe that Barden was following through on his plan to vote not guilty on all remaining counts; out of spite, she announced she was going to vote guilty on all remaining counts. This conflict between Barden and Butler caused a third juror to see the judge, again with a court reporter present. The court informed all counsel of the events. It then read the Allen charge to the jury and told them to continue deliberating. The jurors did so until they reached verdicts on all remaining counts. Defendant was found guilty on some of the counts, not guilty on many others. Approximately two months later, on August 12, 1980, the court held an evidentiary hearing to determine whether outside influences were improperly brought to bear on any of the jurors. All but one of the jurors (who was ill) were questioned at length by the court as well as by defense and government counsel. The court concluded that outside influence had not been improperly brought to bear on the jurors. The court found that Barden’s efforts to cut the deliberations short were unsuccessful; that the other jurors prevailed upon him to consider all the counts individually. Furthermore, the record reveals that Barden’s comments about the possible sentence were not discussed by the jurors, nor was the claim that Butler had visited defendant’s office. The court determined that the comments made by Butler were often made in anger and were intended to irritate Barden. The court also noted that despite Barden’s announced intention to vote not guilty, and Butler’s intention to vote guilty on all remaining counts, in fact neither of them did this as witnessed by the guilty and not guilty verdicts that were subsequently returned by the jury. Defense counsel cites Remmer v. United States, 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654 (1954), (attempted bribery of juror), and Mattox v. United States, 146 U.S. 140, 13 S.Ct. 50, 36 L.Ed. 917 (1892), (capital case where bailiff made improper remarks to the jury and where a highly prejudicial newspaper article was read by the jury during deliberations), for the proposition that extrajudicial juror contact is presumptively prejudicial, thus placing upon the government the burden of establishing that the contact was harmless to the defendant. Both Remmer and Mattox, supra, are’ clearly distinguishable from the facts of the instant case. Even so, we do believe that given Barden’s outside information about the possible sentence and Barden’s comment that Butler was or may have visited defendant’s office, a “presumption of prejudice” could have arisen. Thus the burden could have been upon the government to show that the defendant was in fact, not prejudiced. Remmer and Mattox, supra. In any event, we believe this burden was met. The jury was admonished time and again that they were to decide the defendant’s innocence or guilt only on the basis of the evidence admitted in court; that they were to disregard any reports or information they may have seen in the news media or heard in conversation. Furthermore, the court polled the jury with respect to all verdicts received to insure that each verdict was based “solely on the evidence presented in the courtroom”. In the post verdict hearing held to determine whether matters outside the evidence may have been considered by the jury and resulted in prejudice to the defendant, the court and government and defense counsel carefully questioned the jury. Based on the record of that inquiry, and clearly supported thereby, the court determined that there wasn’t any outside influence improperly brought to bear on the jurors. As we stated in Bullock v. United States, 265 F.2d 683, 697 (6th Cir.1959), cert. denied, 360 U.S. 909, 79 S.Ct. 1294, 3 L.Ed.2d 1260 (1959): ... It is for the judge to decide whether or not private communication is prejudicial. The same rule applies with even more force to public communication which reaches a juror without intention on the part of the broadcaster. In numerous decisions the trial judge has held that a new trial should be had, although information that superficially appeared prejudicial was transmitted to the jury. Under the facts of this case, the district court properly concluded that defendant had not been prejudiced. In so deciding, in our opinion, the court did not abuse its discretion. Ill Judicial Misconduct The third issue raised by appellant involves alleged judicial misconduct. Appellant alleges he was denied a fair trial claiming that the district judge demonstrated an antagonistic and hostile attitude toward defense counsel; that the court criticized their trial conduct, belittled their ability and bullied them. In arguing for a reversal, defense counsel rely heavily upon United States v. Hickman, 592 F.2d 931 (6th Cir.1979). We reversed the district court in Hickman because of the pervasive interference and partiality of the presiding judge. In a trial by jury, he interjected himself into the trial more than 250 times; he unduly restricted defense counsel’s cross-examination; and in several instances he personally took charge of cross-examining the defense witnesses. The facts in Hickman, supra, differ markedly from those in the case at bar. Defense counsel do not argue that the district court prevented cross-examination or that the court took command of examining or cross-examining the witnesses, but rather that the court criticized counsels’ trial conduct, ridiculed them and belittled their ability. However, in carefully reviewing each of the examples of alleged misconduct cited to this court, we note that almost all of them were made outside the hearing of the jury. Moreover, we observe that several of the examples cited to us have been taken out of context. They do not reflect that defense counsel persisted in asking leading and/or repetitive questions, or that defense counsel repeatedly sought to elicit irrelevant testimony, or that they frequently disregarded earlier court rulings. A case more on point than Hickman, supra, is United States v. Weiss, 491 F.2d 460 (2d Cir.1974), cert. denied, 419 U.S. 833, 95 S.Ct. 58,42 L.Ed.2d 59 (1974). Referring to facts similar to those of the instant case, the court said at page 468: . . . many of the court’s unfortunate comments quoted by appellants occurred outside of the jury’s presence and hence could not have influenced the jury. Others were clearly provoked by defense counsel’s unnecessary comments or statements in connection with their voicing of objections or by their pressing objections or arguments that were frivolous, repetitious, or in disregard of the court’s earlier rulings.... Nor is it surprising that such wasteful tactics will lead a trial judge, during the heat of a nine-day trial, sometimes to become impatient. Judges, while expected to possess more than the average amount of self-restraint, are still only human. They do not possess limitless ability, once passion is aroused, to resist provocation. This trial went on for more than 20 days and resulted in a transcript in excess of 5,500 pages. No doubt some of the district judge’s comments and castigations of counsel would have been better left unsaid. However, a careful review of each example of alleged judicial misconduct cited to us, whether taken individually or cumulatively, does not convince us that the district court lacked impartiality or that defendant was deprived of a fair trial. IV Character Evidence In his fourth issue, appellant contends the government erroneously was allowed to introduce inadmissible character evidence, including testimony concerning defendant’s performance as a medical student and his conduct as a resident after leaving medical school. With respect to his academic performance as a medical student, the record reveals that defendant testified that he had had the “opportunity” or “privilege” of taking some courses over again. And with respect to his time as a resident physician, he stated during his direct examination that he “did a residency in surgery at St. Joseph Hospital .... and did a residency in radiology” at Baptist Hospital. Also, through the testimony of a number of witnesses, the defense attempted to portray defendant as a dedicated, hard-working, honorable doctor. It was within this context that the court allowed the government to present rebuttal witnesses who testified that defendant had to repeat two semesters at medical school. There was further rebuttal testimony that he had been forced to resign his surgical and radiological residencies because of repeated absences and tardiness. Thus he never completed either residency. The relevant standard that a district judge should apply “... is whether, in his sound discretion, the probative value of the proffered testimony outweighs the possibility of undue prejudice to the defendant. Only upon a grave abuse of discretion will his ruling be overturned.” United States v. Jenkins, 525 F.2d 819, 824 (6th Cir.1975). Under the facts of this case it is clear that the district court did not abuse its discretion. V Sufficiency of the Evidence Is the evidence sufficient to sustain convictions in the following counts: 6, 7, 24-26, 76, 78, 146, 147, 231 and 234-247? The evidence as to defendant’s guilt was established beyond a reasonable doubt by the testimony of many witnesses, documents and records. The evidence was overwhelming. The last two assignment of errors are: VI. Was it plain error when the district court failed to instruct the jury regarding the use of their notes during deliberations? VII. Did the district court err in refusing a request to recall Lynn Haag and Asa Boatman as witnesses? We have reviewed each of ‘these and conclude that they have no merit. The judgment is affirmed. . Defendant sought to suppress the records seized during the search of his medical office. Some of these had already been testified about before the jury and had been admitted in evidence. . The alleged jury misconduct took place after the jury had already returned 46 separate verdicts of which 26 were guilty and 20 not guilty verdicts. Such alleged subsequent misconduct could have no affect on the legality of the 26 prior guilty verdicts, where no such misconduct allegedly took place. . The court instructed the jury, in part, as follows: A separate act or offense is charged in each count of the indictment. You should consider each count of the indictment and the evidence pertaining thereto separately and the fact that you may find the accused guilty or not guilty as to one of the offenses charged should not control your verdict as to the other offenses charged.... I instruct you to completely disregard any information that may have come to you through the news media, or from any persons who have talked to you or talked about this case in your presence, whether in the Federal building or elsewhere. I instruct you to disregard outside statements regarding this case, for to consider them in your deliberations would be a violation of your sworn duty as jurors.... Keep constantly in mind that it would be a violation of your sworn duty to base a verdict of guilty upon anything other than the evidence in the case. The punishment provided by law for the offenses charged in the indictment is a matter exclusively within the province of the Court. Therefore, what the punishment might be should never be considered by the jury in any way in arriving at an impartial verdict as to the guilt or innocence of the accused. I’m going to ask that you retire to the jury room and further deliberate to the end that you will undertake to return verdicts solely on the evidence presented in the courtroom and in the light of the instructions of the Court based upon the law... . Question: What is the nature of the first listed respondent? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:
songer_usc1sect
203
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 11. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA". PARADISE LAND & LIVESTOCK CO. v. FEDERAL LAND BANK OF BERKELEY, CAL. No. 1867. Circuit Court of Appeals, Tenth Circuit Dec. 22, 1939. J. D. Skeen, of Salt Lake City, Utah (E. J. Skeen, of Salt Lake City, Utah, on the brief), for appellant. Richard W. Young, of Berkeley, Cal. (Richards & Mitchell, of Salt Lake City, Utah, on the brief), for appellee. Before LEWIS, BRATTON, and HUX-MAN, Circuit Judges. HUXMAN, Circuit Judge. The appellant, Paradise Land & Livestock Company, herein called the debtor, is a farming corporation, operating in Cache County, Utah. The debtor filed its petition in the United States District Court for the District of Utah, under Section 75 of the Bankruptcy Act, 11 U.S.C.A. § 203, asking for a composition or extension of its debts under the Act. It listed the following debts: To the Federal Land Bank of Berkeley, California, an indebtedness of $61,777.20; to the J. D. Harding Estate, $10,000; unsecured judgment, $408; Farm Credit Administration, $8,00Q. It scheduled assets of approximately 9,500 acres of land and an account of $1,333.33. The petition was approved as properly filed and referred to the Conciliation Commissioner. Before a meeting of the creditors was had, the Federal Land Bank filed a petition praying for the dismissal of the proceedings. An order to show cause was issued and answer was filed to the petition, and the debtor made an offer of compromise settlement which was rejected. Thereupon the debtor filed a petition under Subsection (s) of. Section 75, praying to be adjudged a bankrupt, and it was so adjudged. Subsequent to this adjudication, the Land Bank again filed a petition for the dismissal of the proceedings, alleging that the offer was not made in good faith and that the debtor was not the owner of the property. An appraisal was made by the Conciliation Commissioner and reported to the court with an order fixing the rental of the property at $3,185. An amended order was filed fixing the rental at $3,795. No appeal was taken from the order fixing the rental. The court heard the evidence and directed findings of fact for the Land Bank and ordered dismissal of the proceedings. From this ruling an appeal has been taken to this court. Two points are urged for consideration on this appeal. The debtor contends that the court was not justified, first, in finding and concluding that there was no reasonable hope of the debtor being able to re-, habilitate himself within a reasonable length of time, and second, in making and entering an order directing dismissal of the proceeding while the debtor was ready, willing and able to pay in cash the full rental value of the property as fixed by the Conciliation Commissioner, and where the debtor had not failed to comply with the orders of the court requiring payment or otherwise. The Supreme Court of the United States, in John Hancock Mutual Life Ins. Co. v. Benno Bartels, 60 S.Ct. 221, 223, 84 L.Ed. -, decided December 4, 1939, said: “The plain purpose of Section 75 was to afford relief to such debtors who found themselves in economic distress however severe, by giving them the chance to seek an agreement with their creditors, subsections a to r, and, failing this, to ask for the other relief afforded by subsection s.” Subsection (s) provides that debtor, failing to procure the benefits of subsections (a) to (r), inclusive, may ámend his petition, asking to be adjudged a bankrupt. The section further provides that upon being adjudicated a bankrupt, debtor’s property shall be appraised; that there shall be set aside to him his statutory exemptions. An order may issue directing the retention or possession of all the rest of his property or part thereof under the supervision and control of the court; that the court may stay all proceedings against the debtor or his property for a period of three years; that during such period.the debtor may retain possession of the property under the control of the court, and upon payment of the reasonable rental value of the property. The clear intent and purport of this section is to give the court great latitude in the management and control of the bankrupt’s estate,' to the end that the rights of creditors as well as of the debtor may be protected. The findings of fact show that the debtor was organized as a corporation; that prior to the year 1937 it engaged in the general business of raising and marketing livestock in Cache County, state of Utah. That on or about the 1st day of December, 1921, Bernard J. Stewart and wife made, executed and delivered to the Federal Land Bank of Berkeley, California, their promissory note in the principal sum of $10,000; that on or about the 1st day of December, 1921, Joseph B. White and his wife, Rachel, made, executed and delivered to the Federal Land Bank of Berkeley, California, their promissory note in the principal sum of $10,000; that on or about the 1st day of January, 1931, Joseph H. White, a single person, made and delivered his promissory note to the Federal Land Bank of Berkeley, California, in the principal sum of $25,000; that these notes were secured by real estate mortgages on certain real estate which has been acquired by the debtor and that debtor holds the title to the real estate described in these mortgages, subject to the terms and provisions thereof; that the Federal Land Bank of Berkeley commenced foreclosure proceedings on its mortgages in 1937; that the same were foreclosed; that there is due and owing on said mortgages the total sum of $61,777.20; that the debtor has no other assets or property except the described real estate and the sum of $4,700, being the proceeds of 10,000 bushels of wheat produced on the premises in 1938; that the real estate of debtor has been appraised in the total sum of $59,718, and that that is the reasonable value of the real estate; that the taxes for 1935, 1936, 1937 and *1938 are due and unpaid in the respective sums of $842.45, $633.96, $619.50 and $900; that besides the mortgage indebtedness due to the Federal Land Bank of Berkeley, and the taxes, the debtor is indebted to the Emergency Feed Loan Corporation in the principal sum of $8,000, with interest, and to Harry Eckstein and W. F. Smith in the sum of $408, with interest, making a total indebtedness of debt- or in excess of $75,000; that nothing has been paid on the mortgage indebtedness since 1931; that the Conciliation Commissioner has fixed the annual rental of all the real property in the sum of $3,795; that the amount of the annual rental so fixed is approximately $900 less than the annual interest upon the indebtedness and the taxes upon the property. Upon these facts the court found that there was no equity remaining in the property for the debtor over and above the mortgage indebtedness and other valid liens thereon; that the indebtedness could not be liquidated from the property; that no equitable or feasible method of liquidation of the indebtedness has been presented by the debtor; that there was no reasonable hope that the debtor could be refinanced or rehabilitated within three years or any other reasonable time; and that the financial condition of the debtor was without hope of rehabilitation. These findings of the trial court are amply sustained by the evidence and are approved by this court. Appellant contends that having proceeded under subsection (s) of Section 75, and having been adjudged a bankrupt, it is entitled to a three year stay absolute, so long as it pays the fixed fair rental value of the property. In considering this contention we must look to the object sought to be accomplished by the passage of Section 75, subsections (a) to (s) of the Bankruptcy Act, 11 U.S.C.A. § 203, known as the Frazier-Lemke Act. This law was passed during a national crisis to afford relief to distressed agriculture, resulting from the national depression. In innumerable instances agricultural debtors having substantial equities were faced with economic disaster and the loss of all their accumulations owing to the collapse of agricultural prices. Real estate values had disappeared, or if a market was available for real estate sales, the price obtainable was out of all proportion to the fair value of the property. It was in recognition of this general condition and for the purpose of affording a breathing spell to distressed agricultural debtors during which they might be rehabilitated that this act was passed. The administration of the act is entrusted to a court of equity. It is the duty of the court in administering this act not only to look to the interests of the debtor, but also to the rights of the creditors, to the end that all rights may be preserved and protected. It has been held that the act under consideration gives the court broad powers in its administration to curtail the stay of foreclosures for the protection o f the mortgagees; that the property of which the debtor retains possession is at all times in the custody and under the supervision and control of the court, or if, after reasonable time it becomes evident to the court that there is no reasonable hope that the debtor can rehabilitate himself financially within the three year period, then the court may terminate the stay. Wright v. Vinton Branch of Mountain Trust Bank, 300 U. S. 440, 57 S.Ct. 556, 81 L.Ed. 736, 112 A.L.R. 1455. When debtor is beyond all reasonable hope of financial rehabilitation and agricultural composition proceedings cannot be expected to have any effect beyond postponing inevitable liquidation, such proceedings will be halted at the outset. In re Cresap (Cresap v. Equitable Life Assurance Soc. of United States), 7 Cir., 99 F. 2d 722; Sullivan v. Tofflemoyer, 10 Cir., 104 F.2d 835. Failure of the debtor to secure approval of a plan of rehabilitation and in lieu thereof the finding by the court that there was no reasonable hope of rehabilitation and refusal to grant a stay, does not authorize a dismissal of the proceedings begun under subsection (s) of Section 75. John Hancock Mutual Life Ins. Co. v. Bartels, supra. When debtor invoked the provisions of subsection (s) it asked to be adjudged a bankrupt. It was so adjudged. Notwithstanding the finding of the court that there was no hope of rehabilitation, debtor was still entitled to have its estate administered as a bankrupt and in the administration of its estate as a bankrupt was entitled to such relief under the provisions of subsection (s) as the court found equitable and fair. Whether the debtor is entitled to retain its property or any part thereof or for how long are not matters for determination here. These are matters that will arise in the administration of the estate under the provisions of subsection (s) and are for the determination of the court, having due regard for the preservation of the rights of all parties. Whether such rights are granted or not, the adjudication stands as a voluntary adjudication in bankruptcy and appropriate proceedings should follow. Bartels v. John Hancock Mutual Life Ins. Co., 5 Cir., 100 F.2d 813; affirmed in John Hancock Mutual Life Ins. Co. v. Bartels, Supreme Court of the United States, 60 S.Ct. 221, 84 L.Ed. -, decided December 4, 1939. The judgment of the trial court is reversed and the case is ordered reinstated for further proceedings in conformity with this opinion. 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 11? Answer with a number. Answer:
songer_othappth
B
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the appeals court level. That is, it is conceded that the trial court properly reached the merits, but the issue is whether, in spite of that concession, the appellant has a right to an appeals court decision on the merits (e.g., the issue became moot after the trial). The issue is: "Did the court refuse to rule on the merits of the appeal because of some threshhold issue other than timeliness or frivolousness that was relevant on appeal but not at the original trial? (e.g., the case became moot after the original trial)" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". WELLS v. DEMETER et al. No. 1367. Circuit Court of Appeals, Tenth Circuit. June 30, 1936. Rehearing Denied Aug. 5, 1936. John Barry, of Oklahoma City, Okl. (W. R. Bleakmore, of Oklahoma City, Old., on the brief), for appellant. Henry G. Snyder, of Oklahoma City, Okl. (W. A. Lybrand, of Oklahoma City, Old., on the brief), for appellees. Before PHILLIPS, McDERMOTT, and BRATTON, Circuit Judges. McDERMOTT, Circuit Judge. This suit was brought by Demeter, the owner of $6,000.00 of nonvoting preferred stock of The Atkinson, Warren & Henley Company, against that corporation and Wells. The bill alleged that the corporation was in process of voluntary liquidation; that the preferred stock was entitled to a preference over the common stock in liquidation as well as in dividends; that it had been sold upon representations to that effect, and had been so treated by the corporation during the early stages of the liquidation; that some of the holders of the common stock had lately challenged such preferential right, and that the corporation proposed to complete the liquidation in disregard of such rights of the preferred stockholders. The prayer of the bill was that the corporation, its officers and agents, be enjoined from distributing any part of its assets to the common stockholders until plaintiff’s preferred stock was paid in full. Why Wells was joined as a party defendant we are not advised. The only allegation concerning him is that he was one of a committee of common stockholders to investigate the legal rights of the preferred stockholders, which committee had not reported. No cause of action is stated against Wells and no relief sought against him. The defendants joined in an answer. Counsel for Wells appeared at the trial. The decree perpetually enjoined the corporate defendant from distributing any part of its assets to the common stockholders until “plaintiff shall have received, ratably with other preferred shareholders, and shall have been paid” the face value of his stock plus accumulated dividends; and, it appearing that the corporation had sufficient funds to pay in full all outstanding preferred stock, such payment was forthwith ordered. No relief was granted against Wells, although the decree recited that Wells appeared for such of the common stockholders as opposed the claim of plaintiff, and that he excepted to the decree. Wells appealed; the corporation did not. We have then this anomalous situation : The only relief asked for or granted was against the corporation, which has not appealed. An appeal is taken by one against whom relief was neither asked nor granted. Wells does not pretend to appeal for the corporation, and of course he could not, for, except under circumstances not present here, control of corporate litigation is vested in its governing body and not in' each of its individual stockholders. Presumably the governing body believed the decree below was right; in any event, no appeal was taken nor were any steps taken which conceivably might have enabled Wells, in analogy to a stockholder’s bill, to have asserted rights which properly might have been asserted by the corporation. Nor did Wells seek affirmative relief in the court below which, if denied, would have enabled him to appeal therefrom. Wells has no authority to appeal from the decree against the corporation; there is no decree against him personally. But if the decree be treated as running sub silentio against him and the corporation jointly, then the appeal must fail because no proceedings in summons and severance were had against the corporation. A joint decree against two or more parties will not be reviewed on appeal unless all join in the appeal, or unless proceedings in summons and severance, or its equivalent, have been had against those who do not join. Hartford Accident & Ind. Co. v. Bunn, 285 U.S. 169, 52 S.Ct. 354, 76 L.Ed. 685, reviewing the earlier cases. Boynton v. Hutchinson Gas Co., 292 U.S. 601, 54 S.Ct. 639, 78 L.Ed. 1464; Texas Land & Cattle Co. v. Fort Worth, 295 U.S. 716, 55 S.Ct. 658, 79 L.Ed. 1672. Where such a situation appears, the court “will then, of its own motion, dismiss the case, without awaiting the action of a party.” Estis v. Trabue, 128 U.S. 225, 9 S.Ct. 58, 60, 32 L.Ed. 437. Our own court has twice stated the rule. Clarke v. Boysen, 39 F.(2d) 800, 821; City of Shidler v. H. C. Speer & Sons Co., 62 F.(2d) 544. This case presents an excellent reason for the rule. The corporation not having appealed within the statutory period, the decree as to it is final, and is beyond our power to vacate. By that decree the corporation is enjoined from distributing any part of its assets to the common stockholders before the preferred stock has been paid, and is commanded forthwith to pay such preferred stock in full. Were we so disposed, we could grant appellant no relief without vacating this decree against the corporation; we cannot vacate it because no appeal was taken by the corporation. The appeal is dismissed. Question: Did the court refuse to rule on the merits of the appeal because of some threshhold issue other than timeliness or frivolousness that was relevant on appeal but not at the original trial? A. No B. Yes C. Mixed answer D. Issue not discussed 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. BISHOP v. UNITED STATES. No. 7288. United States Court of Appeals for the District of Columbia. Decided Oct. 23, 1939. Ross O’Donoghue, of Washington, D. C., for appellant. David A. Pine, U. S. Atty., and Cecil R. Heflin, Asst. U. S. Atty., both of Washington, D. C., for appellee. Before GRONER, Chief Justice, and EDGERTON and VINSON, Associate Justices. VINSON, Associate Justice. This is an appeal from a conviction of murder in the first degree. Several persons testified before the jury that they had seen appellant beat his wife to death with a hammer in Pension Park in the city of Washington. It would serve no useful purpose to comment upon the evidence, which fully supported the verdict of the jury. Appellant urges that the court erred: (1) in refusing certain prayers offered by him, (2) in its charge that his voluntary intoxication could not reduce the crime from second degree murder to voluntary manslaughter, or warrant an acquittal, (3) in its comment upon the type of crime, (4) in its definition of malice and reasonable doubt, (5) in the charge respecting motive and contradictory statements of witnesses. There were several prayers offered by the appellant which were granted by the court. At the close of its charge to the jury, the trial court asked counsel if there was anything left uncovered. Counsel for appellant suggested that the court read the prayers. The court replied that his charge had included substantially everything in these prayers, but that if counsel should suggest any omitted point he would be glad to instruct the jury concerning it. Counsel thereupon" acquiesced in the understanding that the charge embraced all points con-i tained in the prayers and took no exception to the court’s charge theretofore given. However, as this is a capital case, we have painstakingly examined the charge in order' that all of appellant’s rights may be protected. Kinard v. United States, 68 App.D.C. 250, 96 F.2d 522; Meadows v. United States, 65 App.D.C. 275, 82 F.2d 881. We find that the substance of the prayers granted was “substantially and fairly covered by the general charge of the court.” McAffee v. United States, 70 App.D.C. 142, 105 F.2d 21, 32, decided March 28, 1939; Aldridge v. United States, 60 App.D.C. 45, 46, 47 F.2d 407. Several prayers offered by appellant were refused. We have examined these and uphold the district court in this respect. Counsel for the appellant in his brief contends that the court erred in failing to give one prayer requested, namely: “The jury are instructed that if the defendant was so intoxicated that he could not entertain the specific purpose required by the statute to constitute murder in the first degree or murder in the second degree, he would not be guilty of either and should be acquitted.” While, as we have said, the foregoing prayer was denied, the court granted it after it was amended to read as follows: “The jury are instructed that if the defendant was so intoxicated that he could not entertain the specific purpose required by the statute to constitute murder in the first degree, he would not be guilty of murder in the first degree.” A comparison of the prayer as presented with the amended form, and with the charge as it covers the point shows clearly the crux of appellant’s case. He contends, first, that voluntary intoxication may négative the specific intent to kill, or the deliberation and premeditation necessary to constitute first degree murder, and, second, that it may also negative the malice aforethought necessary for second degree murder, and even be sufficient to acquit the defendant of all degrees of homicide. The court accepted the first contention and so charged the jury, but refused the second. The court charged the jury that if they found that appellant struck the fatal blows, and at the time thereof, was so intoxicated that he could not form the purpose and intent to kill, he would not be guilty of murder in the first degree; and, further, that if the appellant formed the purpose and intent, but, if at the time of the killing, was so intoxicated that he could not deliberate and premeditate upon such purpose and intent, then he would not be guilty of murder in the first degree, but would be guilty of murder in the second degree, unless there was sufficient provocation and sudden passion, as to cause a sober man to become so aroused as to kill, which, if shown, would reduce the crime to manslaughter. We append in the margin the portions of the charge pertaining to the intoxication of the appellant, as it related to the degree of the crimes included in the indictment. Thus the court refused to carry out the request of the prayer as originally submitted and refused to charge that intoxication would negative the “specific purpose” required by the statute to constitute murder in the second degree or that such intoxication would warrant an acquittal. Error is assigned to the refusal of the court to so charge, and in addition, error is assigned to the standard of sobriety contained in the charge relating to voluntary manslaughter. We are of the opinion that in each instance the court followed the law. Under the District of Columbia statute, a homicide committed purposely and with deliberate and premeditated malice is murder in the first degree. A homicide committed with malice aforethought, without deliberation and premeditation, is murder in the second degree. “Malice aforethought” may be shown expressly, or may be “implied” from the commission of the act itself. Although distinction is made in the severity of punishment for the degrees of murder, the statute embodies the substance of murder as it was known to the common law. Intoxication at common law was no defense to the crime of murder. It could neither justify an acquittal, nor reduce common law murder to manslaughter. From an early day to this hour, the law has declared that intoxication is not an excuse for the commission of a crime. While it has long been recognized that intoxication per se is no defense to the fact of guilt, the stated condition of a defendant’s mind at the time of the killing in respect of its ability to form the intent to kill, or if formed to deliberate and premeditate thereupon, is now a proper subject for consideration, inquiry, and determination by the jury. Thus, voluntary intoxication will not excuse murder, but it may negative the ability of the defendant to form the specific intent to kill, or the deliberation and premeditation necessary to constitute first degree murder, in which event there is a reduction to second degree murder. The charge of the court upon the voluntary intoxication of appellant in respect to murder in the first degree, murder in the second degree, and manslaughter, was clearly and fairly given — conscientiously so. However, appellant maintains that the defense of voluntary intoxication goes further than the reduction from first degree murder to murder in the second degree, and that the defendant’s voluntary intoxication negatived the malice aforethought required to constitute second degree murder under our statute, thereby reducing second degree murder to voluntary manslaughter, or— as is evidenced by the prayer under discussi on — warranting an acquittal. His contention is met in clear pronouncements from early authorities to the present day. Voluntary intoxication may not reduce murder to voluntary manslaughter, nor permit an acquittal of murder. In Pirtle v. State, supra note 7, it is said: “As between the two offences of murder in the second degree, and manslaughter, the drunkenness of .the offender can form no legitimate matter of inquiry; the killing being voluntary, the offence is necessarily murder in the second degree * * In Willis v. Commonwealth, supra note 7, it is said: “Voluntary immediate drunkenness is not admissible to disprove malice, or to reduce the offence to manslaughter,” and this doctrine is approved in Little v. Commonwealth, 163 Va. 1020, 175 S.E. 767. Appellant refers us to Smith v. United States, 50 App.D.C. 208, 269 F. 860, as being in apparent conflict with this holding. That case but impliedly passed upon this point. There was an indictment for second degree murder and a prayer requested which instructed the jury that intoxication would negative the malice aforethought necessary to constitute murder in the second degree, thereby reducing the crime to voluntary manslaughter. The requested prayer was refused, but the trial court so substantially charged the jury. The charge, as given, was more favorable to the defendant than the law contemplates. We held that the requested prayer on intoxication was covered by the charge given, and affirmed solely upon that point. There was no discussion of the underlying principles and no authorities were cited, nor was it necessary in that case. The court found no error prejudicial to appellant and so affirmed. But if there be implication that the charge as there given is a correct statement of the law, it must be and is expressly overruled. Indeed, the able counsel for the appellant herein cites no authority in contravention of the rule to which we must adhere in this case. The charge of the court that “the defendant was to bé considered as a ‘sober man’, in determining whether or not he was guilty of manslaughter” is assigned as error. The full charge in respect of manslaughter is set forth in the margin. The crime of manslaughter occurs when the killing is done in “heat of passion” engendered by adequate provocation. To constitute this crime it is not required to show that the killing was done purposely, deliberately, premeditatedly, or with malice aforethought. It is only necessary to show that the killing was committed in “heat of passion” upon sufficient provocation. The test of sufficiency of such provocation is that which would cause an ordinary man, a reasonable man, or an average man, to become so aroused. Such a man can only mean a “sober man”, and the provocation must be sufficient to create “heat of passion” in a reasonable, sober man. The court so charged, saying that the provocation for the killing to be in “heat of passion” must be “adequate, must be such as might naturally induce a reasonable man in the anger of the moment to commit the deed; it must be such provocation as would have like effect upon the mind of an reasonable or average man, causing him to lose self-control. In addition to the great provocation there must be passion and hot blood caused by that provocation. Now, as to both of those rules as to provocation and passion, the rule which you will apply is the rule you would apply to a sober man. It must be such provocation which would arouse' a reasonable, sober man. If the provocation aroused the defendant simply because he was intoxicated, and would not arouse a sober man, it does not reduce the offense to manslaughter because when you come to consider this question of manslaughter the defendant is to be governed by the same law which would govern a sober person.” In Pirtle v. State, supra note 7, it is stated: “* * * The killing being voluntary, the offence is necessarily murder in the second degree, unless the provocation were of such a character as would at common law constitute it manslaughter, and for which latter offence a drunken man is equally responsible as a sober one.” In State v. Aragon, supra note 7, appears the following language [35 N.M. 198, 292 P. 227]: “We understand the argument to be that provoking facts and circumstances which might leave a sober man cool would engender ‘heat of passion’ in an intoxicated person. That may be so, but, as drunkenness does not excuse homicide, so by the same token it may not be available as a factor contributing to heat of passion.” If a defendant is intoxicated, there is no requirement that provocation for “heat of passion” be greater than that which would arouse a reasonable, sober man to act. Certainly, if there be intoxication, a lesser provocation than that which would create “heat of passion” in a reasonable, sober man cannot-be allowed, otherwise, a premium would be granted for voluntary intoxication. The standard of the provocation that may create the “heat of passion” reducing murder to manslaughter is the same for all men, whether drunk or sober. We, therefore, conclude that the court correctly defined manslaughter and the proper standard to be applied when intoxication is pleaded as a defense. Appellant contends that the following portion of the court’s charge was incorrect and highly prejudicial to him, exceeding all proper comment. The Court states in the opening of the charge: “A human being has been killed in a manner that is shocking and brutal. This defendant has been charged with the killing. Now, it is for you to say whether or not he did it, and if so, what degree of guilt attaches to the act. You should decide the matter solely on your judgment; you should not be influenced in any way by sympathy for the dead or prejudice because of the manner in which the act was committed. “If you think I have any view of the guilt or innocence of the defendant you will please disregard that. I may comment upon the evidence, but if I do it is for the purpose of explaining to you the several theories of the law with respect to the different statements of fact that you may find from the evidence.” It is appellant’s contention that the reference to the killing as being “shocking and brutal” necessarily prejudiced his rights. We are not in accord with this contention. We think that the court was well within its privilege to comment upon the facts, and that its characterization of the homicide did not prejudice the legal rights of appellant The appellant’s wife was killed with a hammer. She was struck repeated blows. Her head was badly crushed. She was dragged about 30 or 40 feet by the hair of her head to a point in the park where appellant, testified he had left the hammer, and there sustained the deadly blows at the hands of appellant. Immediately thereafter on the scene, the appellant said: “That’s the way to fix them.” These facts were testified to by eye witnesses, and were not denied. While the details of the killing, without any material contradictions, show that a shocking and brutal homicide had been committed, even so it was for the jury to decide the matter solely on judgment, without sympathy for the deceased or without prejudice to the appellant because of the manner in which the act was committed. The court so instructed them. In our opinion, this phase of the instruction, taken as a whole, cannot be complained of by the appellant, but rather was favorable to his cause. See Wilson v. United States, App.D.C., 107 F.2d 253, decided September 25, 1939; Cf. Hopt v. Utah, 110 U.S. 574, 582, 4 S.Ct. 202, 28 L.Ed. 262; Quercia v. United States, 289 U.S. 466, 470, 53 S.Ct. 698, 77 L.Ed. 1321. It is further contended by appellant that the lower court improperly defined “malice” and “reasonable doubt.” The definition of malice is substantially that which received the sanction of this court in Mc-Affee v. United States, supra. The definition of reasonable doubt given by the court is substantially that which we approved in Egan v. United States, 52 App.D.C. 384, 287 F. 958. Reasonable doubt is a doubt arising from the evidence, or from a lack of evidence, after consideration o\ all the evidence. It is not a vague, speculative, imaginary something, but just such a doubt as would cause reasonable men to hesitate to act upon it in matters of importance to themselves. Posey v. State, 18 Ala.App. 583, 93 So. 272, 273. We think the charge, both as to malice and reasonable doubt, correctly informed the jury. The remaining contentions of appellant are that he was prejudiced by the charge of the court concerning motive and contradictory statements by witnesses. The record shows that the government introduced evidence tending to show motive, McUin v. United States, 17 App.D.C. 323, 330; Murray v. United States, 53 App.D.C. 119, 122, 288 F. 1008, and that the court’s charge was a proper one. Evidence was also introduced showing contradictions by witnesses, including the appellant himself. The court’s charge thereupon was in conformity with Reagan v. United States, 157 U.S. 301, 305, 15 S.Ct. 610, 39 L.Ed. 709. Therefore, these assignments must fail. The other assignments of error, as well as errors urged for the first time in the brief for appellant, have received our painstaking examination. After careful consideration of the whole charge, we are constrained to hold that the instructions were clear, complete and fair. The conduct of the trial was free from prejudicial error. Affirmed. “Now, I shall instruct you as a matter of law that drunkenness is not an excuse for crime; you will please bear that in mind through your deliberation, that drunkenness is not an excuse for crime, but in all cases where the law requires that there be a specific intent to do a particular thing, as in the case of murder in the first degree where there must be an actual intent to kill, it does become necessary for you to inquire as to the state of mind with which the defendant acts, and his drunkenness or sobriety is a matter for consideration in making any inquiry, and you will notice that you do not consider the question of drunkenness for the purpose of excusing the defendant; you will consider the drunkenness, if it existed, for the purpose of ascertaining whether or not he was able to form an intent and deliberate and premeditate over it. The degree of the offense depends upon the question, whether the killing was willful, deliberate, and premeditated, and upon that question it is proper for you to consider evidence of drunkenness in order to determine whether the defendant’s mind was capable of that deliberation and premeditation which is necessary to amount to murder in' the first degree. “If you find that this defendant Bishop at the time of striking the fatal blows was intoxicated to such an extent that he could not form the purpose or intent to kill and that he was so intoxicated that he could not deliberate and premeditate over the intent to kill, then he would not be guilty of murder in the first degree.” * * * * * * * “Now, of course, a drinking man may be able to form an intent to kill; he may be able to deliberate and premeditate, even though his mind may be inflamed to some extent by liquor. * * * if he still has the ability to form an intent to kill and premeditated and deliberated upon it, then the offense is murder in the first degree, if you find of course that he actually did have the intent to kill and did deliberate and premeditate upon it. “Now, the state of his drunkenness at that time is a question of fact for you to determine. If you find that he was so drunk that he did not or could not form an intent to kill, or that he formed an intent to kill but could not deliberate and premeditate upon it, then he would not be guilty of murder in the first degree but he would be guilty of murder in the second degree, unless you find such facts existed as would reduce the offense to manslaughter. So, except as to his ability to form the intent to kill or to deliberate and premeditate over such intent, he is to be treated, even though you find him intoxicated, as though he was a sober person, that is, except as to that one offense of murder in the first degree, the fact that he may have been drunk is of no importance and not to be considered by you. A drunken man is presumed to understand the consequences of his acts; so that if you find this defendant inflicted these fatal blows upon Mrs. Bishop, you will find him guilty of murder in' the first or second degree, according to your finding of the state of his mind at that time, and of course, if you find present all the elements necessary .to constitute murder in the first degree, unless you think that the offense was manslaughter. “Now, manslaughter is the unlawful killing of a human being without malice aforethought. It occurs when the homicide is committed at the time of mutual combat or when it is committed in passion or hot blood caused by adequate provocation. In other words, there must exist, in order to reduce the offense from murder to manslaughter, there must be shown ample provocation and sudden passion, and both of these things must exist at the time the fatal blow is struck. “Now, when I say ‘sudden passion’ I mean to include rage, resentment, anger, terror, and fear; so when I use the expression ‘sudden rage, anger, or passion’, I include all of those. “Now, provocation in order to be sufficient to reduce the offense of murder to manslaughter must be adequate, must be such as might naturally induce a reasonable man in the anger of the moment to commit the deed; ' it must be such provocation as would have like effect upon the mind of a reasonable or average man, causing him to lose self-control. “In addition to the great provocation there must be passion' and hot blood caused by that provocation. “Now, as to both of those rules as to provocation and passion, the rule which you will apply is the rule you would apply to a sober man. It must be such provocation which would arouse a reasonable, sober man. If the provocation aroused the defendant simply because he was intoxicated, and would not arouse a sober man, it does not reduce the offense to manslaughter because when you come to consider this question of manslaughter the defendant is to be governed by the same law which would govern a sober person.” Tit. 6 sec. 21, D.C.Code (1929) provides: “Murder in the first degree * * *. —Whoever, being of sound memory and discretion, purposely, and either of deliberate and premeditated malice or by means of poison, or in perpetrating or in attempting to perpetrate any offense punishable by imprisonment in the penitentiary, kills another, is guilty of murder in the first degree. Ht $ v * $ “Murder in second degree. — Whoever with malice aforethought * * * kills another is guilty of murder in the second degree.” Jordon v. United States, 66 App.D.C. 309, 87 F.2d 64. Sabens v. United States, 40 App.D.C. 440; Marcus v. United States, 66 App.D.C. 298, 86 F.2d 854. See Hill v. United States, 22 App.D.C. 395; Hamilton v. United States, 26 App.D.C. 382; Burge v. United States, 26 App.D.C. 524. Hopt v. Utah, 104 U.S. 631, 26 L.Ed. 873. Pirtle v. State, 9 Hump., Tenn., 663, 670; Haile v. State, 11 Hump., Tenn., 154; Willis v. Commonwealth, 32 Gratt. 929, 73 Va. 929; Johnson v. Commonwealth, 135 Va. 524, 115 S.E. 673, 30 A.L.R. 755; State v. Robinson, 20 W.Va. 713, 43 Am.Rep. 799; State v. Weaver, 35 Or. 415, 58 P. 109; State v. Aragon, 35 N.M. 198, 292 P. 225; Commonwealth v. Detweiler, 229 Pa. 304, 78 A. 271; People v. Lami, 1 Cal.2d. 497, 36 P.2d 192; State v. Kupis, 7 W.W.Harr. 27, 37 Del. 27, 179 A. 640; Commonwealth v. Soaris, 275 Mass. 291, 175 N.E. 491; State v. Brigance, 31 N.M. 436, 246 P. 897; People v. Koerber, 244 N.Y. 147, 155 N.E. 79; State v. Ross, 193 N.C. 25, 136 S.E. 193. Commonwealth v. Detweiler; Haile v. State; Johnson v. Commonwealth; State v. Aragon; State v. Robinson; State v. Weaver; Commonwealth v. Soaris, all supra. See footnote 1. Question: What type of court made the original decision? A. Federal district court (single judge) B. 3 judge district court C. State court D. Bankruptcy court, referee in bankruptcy, special master E. Federal magistrate F. Federal administrative agency G. Special DC court H. Other I. Not ascertained Answer:
sc_issue_3
B
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue of the Court's decision. Determine the issue of the case on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. JOHANNS, SECRETARY OF AGRICULTURE, et al. v. LIVESTOCK MARKETING ASSOCIATION et al. No. 03-1164. Argued December 8, 2004 Decided May 23, 2005 Scalia, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O’Connor, Thomas, and Breyer, JJ., joined. Thomas, J., post, p. 567, and Breyer, J., post, p. 569, filed concurring opinions. Ginsburg, J., filed an opinion concurring in the judgment, post, p. 569. Kennedy, J., filed a dissenting opinion, post, p. 570. Souter, J., filed a dissenting opinion, in which Stevens and Kennedy,-JJ., joined, post, p. 570. Deputy Solicitor General Kneedler argued the cause for the federal petitioners in No. 03-1164. With him on the briefs in .both cases were Acting Solicitor General Clement, Assistant Attorney General Keisler, Irving L. Gornstein, Douglas N. Letter, and Matthew M. Collette. Gregory G. Garre argued the cause for petitioners in No. 03-1165. With him on the briefs was Lorane F. Hebert. Laurence H. Tribe argued the cause for respondents in both cases. With him on the brief were Thomas Goldstein, Amy Howe, Philip Olsson, Ronald A. Parsons, Jr., and Scott N. Heidepriem. Together with No. 03-1165, Nebraska Cattlemen, Inc., et al. v. Livestock Marketing Association et al., also on certiorari to the same court. Briefs of amici curiae urging reversal in both cases were filed for the State of California by Bill Lockyer, Attorney General of California, Richard M. Frank, Chief Deputy Attorney General, Mary E. Hackenbracht, Senior Assistant Attorney General, and Linda L. Berg, Deputy Attorney General; for the State of Texas et al. by Greg Abbott, Attorney General of Texas, R. Ted Cruz, Solicitor General, Ranee L. Craft, Assistant Solicitor General, Barry R. McBee, First Assistant Attorney General, and Edward D. Burbach, Deputy Attorney General, by William Vázquez Irizarry, Secretary of Justice of Puerto Rico, and by the Attorneys General for their respective States as follows: Troy King of Alabama, Terry Goddard of Arizona, Mike Beebe of Arkansas, Ken Salazar of Colorado, M. Jane Brady of Delaware, Charles J. Crist, Jr., of Florida, Thurbert E. Baker of Georgia, Mark J. Bennett of Hawaii, Lawrence G. Wasden of Idaho, Lisa Madigan of Illinois, Thomas J. Miller of Iowa, Gregory D. Stumbo of Kentucky, Charles C. Foti, Jr., of Louisiana, J. Joseph Curran, Jr., of Maryland, Michael A. Cox of Michigan, Jim Hood of Mississippi, Jeremiah W. (Jay) Nixon of Missouri, Jon Bruning of Nebraska, Patricia A. Madrid of New Mexico, Wayne Stenehjem of North Dakota, Jim Petro of Ohio, W. A. Drew Edmondson of Oklahoma, Hardy Myers of Oregon, Gerald J. Pappert of Pennsylvania, Henry McMaster of South Carolina, Paul G. Summers of Tennessee, Mark L. Shurtleff of Utah, William H. Sorrell of Vermont, Jerry W. Kilgore of Virginia, Christine 0. Gregoire of Washington, Peggy A. Lautenschlager of Wisconsin, and Patrick J. Crank of Wyoming; for the American Cotton Shippers Association et al. by Walter Dellinger and Pamela Harris; for the California Agricultural Issues Forum by Seth P. Waxman, Randolph D. Moss, Todd Zubler, and Brian M. Boynton; for the Michigan Pork Producers Association, Inc., et al. by Edward M. Mansfield; for Thad Cochran et al. by David A. Bono and Gerald P. Norton; and for 113 Agricultural Industry Associations by Charles L. Babcock and David T. Moran. Briefs of amici curiae urging affirmance in both cases were filed for the Campaign for Family Farms et al. by Susan E. Stokes, David R. Moeller, and Karen R. Krub; for the Coalition of Cotton Apparel Importers by Carter G. Phillips, Man Charles Raul, Eric A. Shumsky, and Michael C. Soules; for the DKT Liberty Project et al. by Julie M. Carpenter, Daniel Mach, and Robert M. O’Neil; for Public Citizen, Inc., by Scott L. Nelson; for Rose Acre Farms, Inc., by Corinne R. Finnerty and Loren D. Reuter; for the Washington Legal Foundation et al. by Daniel J. Popeo and Richard A. Samp; for Jeanne Charter et al. by Erik S. Jaffe, Brian C. Leigh-ton, James A. Moody, Steven B. Gold, Renee Giachino, Michael P. McMahon, and Virginia B. Townes; and for Joseph Cochran et al. by William H. Mellor, Steven M. Simpson, and Scott G. Bullock. Barry Richard, Hank B. Campbell, and Monterey Campbell filed a brief in both cases for the State of Florida, Department of Citrus, as amicus curiae. Justice Scalia delivered the opinion of the Court. For the third time in eight years, we consider whether a federal program that finances generic advertising to promote an agricultural product violates the First Amendment. In these cases, unlike the previous two, the dispositive question is whether the generic advertising at issue is the Government’s own speech and therefore is exempt from First Amendment scrutiny. I A The Beef Promotion and Research Act of 1985 (Beef Act or Act), 99 Stat. 1597, announces a federal policy of promoting the marketing and consumption of “beef and beef products,” using funds raised by an assessment on cattle sales and importation. 7 U. S. C. § 2901(b). The statute directs the Secretary of Agriculture to implement this policy by issuing a Beef Promotion and Research Order (Beef Order or Order), §2903, and specifies four key terms it must contain: The Secretary is to appoint a Cattlemen’s Beef Promotion and Research Board (Beef Board or Board), whose members are to be a geographically representative group of beef producers and importers, nominated by trade associations. § 2904(1). The Beef Board is to convene an Operating Committee, composed of 10 Beef Board members and 10 representatives named by a federation of state beef councils. §2904(4)(A). The Secretary is to impose a $l-per-head assessment (or “checkoff”) on all sales or importation of cattle and a comparable assessment on imported beef products. §2904(8). And the assessment is to be used to fund beef-related projects, including promotional campaigns, designed by the Operating Committee and approved by the Secretary. §§ 2904(4)(B), (C). The Secretary promulgated the Beef Order with the specified terms. The assessment is collected primarily by state beef councils, which then forward the proceeds to the Beef Board. 7 CFR § 1260.172(a)(5) (2004). The Operating Committee proposes projects to be funded by the checkoff including promotion and research. § 1260.167(a). The Secretary or his designee (see §§2.22(a)(l)(viii)(X), 2.79(a)(8)(xxxii)) approves each project and, in the case of promotional materials, the content of each communication. §§ 1260.168(e), 1260.169; App. 114, 143. The Beef Order was promulgated in 1986 on a temporary basis, subject to a referendum among beef producers on whether to make it permanent. 7 U. S. C. §§2903, 2906(a). In May 1988, a large majority voted to continue it. Since that time, more than $1 billion has been collected through the checkoff, 132 F. Supp. 2d 817, 820 (SD 2001), and a large fraction of that sum has been spent on promotional projects authorized by the Beef Act — many using the familiar trademarked slogan “Beef. It’s What’s for Dinner.” App. 50. In fiscal year 2000, for example, the Beef Board collected over $48 million in assessments and spent over $29 million on domestic promotion. The Board also funds overseas marketing efforts; market and food-science research, such as evaluations of the nutritional value of beef; and informational campaigns for both consumers and beef producers. See 7 U. S. C. §§2902(6), (9), (15), 2904(4)(B). Many promotional messages funded by the checkoff (though not all, see App. 52-53) bear the attribution “Funded by America’s Beef Producers.” E. g., id., at 50-51. Most print and television messages also bear a Beef Board logo, usually a checkmark with the word “BEEF.” E. g., id., at 50-52. B Respondents are two associations whose members collect and pay the checkoff, and several individuals who raise and sell cattle subject to the checkoff. Id., at 17-19. They sued . the Secretary, the Department of Agriculture, and the Board in Federal District Court on a number of constitutional and statutory grounds not before us — in particular, that the Board impermissibly used checkoff funds to send communications supportive of the beef program to beef producers. 132 F. Supp. 2d, at 823. Petitioners in No. 03-1165, a state beef producers’ association and two individual producers, intervened as defendants to argue in support of the program. The District Court granted a limited preliminary injunction, which forbade the continued use of checkoff funds to laud the beef program or to lobby for governmental action relating to the checkoff. Id., at 832. While the litigation was pending, we held in United States v. United Foods, Inc., 533 U. S. 405 (2001), that a mandatory checkoff for generic mushroom advertising violated the First Amendment. Noting that the mushroom program closely resembles the beef program, respondents amended their complaint to assert a First Amendment challenge to the use of the beef checkoff for promotional activity. 207 F. Supp. 2d 992, 996 (SD 2002); App. 30-32. Respondents noted that the advertising promotes beef as a generic commodity, which, they contended, impedes their efforts to promote the superiority of, inter alia, American beef, grain-fed beef, or certified Angus or Hereford beef. After a bench trial, the District Court ruled for respondents on their First Amendment claim. It declared that the Beef Act and Beef Order unconstitutionally compel respondents to subsidize speech to which they object, and rejected the Government’s contention that the checkoff survives First Amendment scrutiny because it funds only government speech. 207 F. Supp. 2d, at 1002-1007. The court entered a permanent injunction barring any further collection of the beef checkoff, even from producers willing to pay (allowing continued collection of voluntary checkoffs, the court thought, would require “rewrit[ing]” the Beef Act). Id., at 1007-1008. Believing that the cost of calculating the share of the checkoff attributable to the compelled subsidy would be too great, the court also declined to order a refund of checkoff funds already collected. Ibid. Finally, the court made permanent its earlier injunction against “producer communications” praising the beef program or seeking to influence governmental policy. Id., at 1008. The court did not rule on respondents’ other claims, but certified its resolution of the First Amendment claim as final pursuant to Federal Rule of Civil Procedure 54(b). 207 F. Supp. 2d, at 1008. The Court of Appeals for the Eighth Circuit affirmed. 335 F. 3d 711 (2003). Unlike the District Court, the Court of Appeals did not dispute that the challenged advertising is government speech; instead, it held that government speech status is relevant only to First Amendment challenges to the speech’s content, not to challenges to its compelled funding. See id., at 720-721. Compelled funding of speech, it held, may violate the First Amendment even if the speech in question is the government’s. Ibid. We granted certiorari. 541 U. S. 1062 (2004). II We have sustained First Amendment challenges to allegedly compelled expression in two categories of cases: true “compelled-speech” cases, in which an individual is obliged personally to express a message he disagrees with, imposed by the government; and “compelled-subsidy” cases, in which an individual is required by the government to subsidize a message he disagrees with, expressed by a private entity. We have not heretofore considered the First Amendment consequences of government-compelled subsidy of the government’s own speech. We first invalidated an outright compulsion of speech in West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624 (1943). The State required every schoolchild to recite the Pledge of Allegiance while saluting the American flag, on pain of expulsion from the public schools. We held that the First Amendment does not “le[ave] it open to public authorities to compel [a person] to utter” a message with which he does not agree. Id., at 634. Likewise, in Wooley v. Maynard, 430 U. S. 705 (1977), we held that requiring a New Hampshire couple to bear the State’s motto, “Live Free or Die,” on their cars’ license plates was an impermissible compulsion of expression. Obliging people to “use their private property as a ‘mobile billboard’ for the State’s ideological message” amounted to impermissible compelled expression. Id., at 715. The reasoning of these compelled-speech cases has been carried over to certain instances in which individuals are compelled not to speak, but to subsidize a private message with which they disagree. Thus, although we have upheld state-imposed requirements that lawyers be members of the state bar and pay its annual dues, and that public school teachers either join the labor union representing their “shop” or pay “service fees” equal to the union dues, we have invalidated the use of the compulsory fees to fund speech on political matters. See Keller v. State Bar of Cal., 496 U. S. 1 (1990); Abood v. Detroit Bd. of Ed., 431 U. S. 209 (1977). Bar or union speech with such content, we held, was not germane to the regulatory interests that justified compelled membership, and accordingly, making those who disagreed with it pay for it violated the First Amendment. See Keller, supra, at 15-16; Abood, supra, at 234-235. These latter cases led us to sustain a compelled-subsidy challenge to an assessment very similar to the beef checkoff, imposed to fund mushroom advertising. United Foods, supra; see 335 F. 3d, at 717 (“[W]e agree with the district court that ‘[t]he beef checkoff is,-in all material respects, identical to the mushroom checkoff’” at issue in United Foods). Deciding the case on the assumption that the advertising was private speech, not government speech, see 533 U. S., at 416-417, we concluded that Abood and Keller were controlling. As in those cases, mushroom producers were obliged by “law or necessity” to pay the checkoff; although Abood and Keller would permit the mandatory fee if it were “germane” to a “broader regulatory scheme,” in United Foods the only regulatory purpose was the funding of the advertising. 533 U. S., at 413, 415-416. In all of the cases invalidating exactions to subsidize speech, the speech was, or was presumed to be, that of an entity other than the government itself. See Keller, supra, at 11, 15-16; Abood, supra, at 212-213; United Foods, supra, at 416-417; see also Board of Regents of Univ. of Wis. System v. Southworth, 529 U. S. 217, 229, 230 (2000) (because “[t]he University ha[s] disclaimed that the speech is its own,” Abood and Keller “provide the beginning point for our analysis”); cf. Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 851-852 (1995) (O’Connor, J., concurring) (university’s Student Activities Fund likely does not unconstitutionally compel speech because it “represents not government resources . . . but a fund that simply belongs to the students”). Our compelled-subsidy cases have consistently respected the principle that “Compelled support of a private association is fundamentally different from compelled support of government.” Abood, supra, at 259, n. 13 (Powell, J., concurring in judgment). “Compelled support of government” — even those programs of government one does not approve — is of course perfectly constitutional, as every taxpayer must attest. And some government programs involve, or entirely consist of, advocating a position. “The government, as a general rule, may support valid programs and policies by taxes or other exactions binding on protesting parties. Within this broader principle it seems inevitable that funds raised by the government will be spent for speech and other expression to advocate and defend its own policies.” Southworth, 529 U. S., at 229. We have generally assumed, though not yet squarely held, that compelled funding of government speech does not alone raise First Amendment concerns. See ibid.; Keller, supra, at 12-13; Rosenberger, supra, at 833; see also Wooley, supra, at 721 (Rehnquist, J., dissenting). 1 — I I — I hH Respondents do not seriously dispute these principles, nor do they contend that, as a general matter, their First Amendment challenge requires them to show only that their checkoff dollars pay for speech with which they disagree. Rather, they assert that the challenged promotional campaigns differ dispositively from the type of government speech that, our cases suggest, is not susceptible to First Amendment challenge. They point to the role of the Beef Board and its Operating Committee in designing the promotional campaigns, and to the use of a mandatory assessment on beef producers to fund the advertising. We consider each in turn. A The Secretary of Agriculture does not write ad copy himself. Rather, the Beef Board’s promotional campaigns are designed by the Beef Board’s Operating Committee, only half of whose members are Beef Board members appointed by the Secretary. (All members of the Operating Committee are subject to removal by the Secretary. 7 CFR § 1260.213 (2004).) Respondents contend that speech whose content is effectively controlled by a nongovernmental entity — the Operating Committee — cannot be considered “government speech.” We need not address this contention, because we reject its premise: The message of the promotional campaigns is effectively controlled by the Federal Government itself. The message set out in the beef promotions is from beginning to end the message established by the Federal Gov-eminent. Congress has directed the implementation of a “coordinated program” of promotion, “including paid advertising, to advance the image and desirability of beef and beef products.” 7 U. S. C. §§ 2901(b), 2902(13). Congress and the Secretary have also specified, in general terms, what the promotional campaigns shall contain, see, e. g., § 2904(4)(B)(i) (campaigns “shall . . . take into account” different types of beef products), and what they shall not, see, e. g., 7 CFR § 1260.169(d) (2004) (campaigns shall not, without prior approval, refer “to a brand or trade name of any beef product”). Thus, Congress and the Secretary have set out the overarching message and some of its elements, and they have left the development of the remaining details to an entity whose members are answerable to the Secretary (and in some cases appointed by him as well). Moreover, the record demonstrates that the Secretary exercises final approval authority over every word used in every promotional campaign. All proposed promotional messages are reviewed by Department officials both for substance and for wording, and some proposals are rejected or rewritten by the Department. App. 114, 118-121, 274-275. Nor is the Secretary’s role limited to final approval or rejection: Officials of the Department also attend and participate in the open meetings at which proposals are developed. Id., at 111-112. This degree of governmental control over the message funded by the checkoff distinguishes these cases from Keller. There the state bar’s communicative activities to which the plaintiffs objected were not prescribed by law in their general outline and not developed under official government supervision. Indeed, many of them consisted of lobbying the state legislature on various issues. See 496 U. S., at 5, and n. 2. When, as here, the government sets the overall message to be communicated and approves every word that is disseminated, it is not precluded from relying on the government-speech doctrine merely because it solicits assistance from nongovernmental sources in developing specific messages. B Respondents also contend that the beef program does not qualify as “government speech” because it is funded by a targeted assessment on beef producers, rather than by general revenues. This funding mechanism, they argue, has two relevant effects: It gives control over the beef program not to politically accountable legislators, but to a narrow interest group that will pay no heed to respondents’ dissenting views, and it creates the perception that the advertisements speak for beef producers such as respondents. We reject the first point. The compelled-sw&si<% analysis is altogether unaffected by whether the funds for the promotions are raised by general taxes or through a targeted assessment. Citizens may challenge compelled support of private speech, but have no First Amendment right not to fund government speech. And that is no less true when the funding is achieved through targeted assessments devoted exclusively to the program to which the assessed citizens object. Cf. United States v. Lee, 455 U. S. 252, 260 (1982) (“There is no principled way ... to distinguish between general taxes and those imposed under the Social Security Act” in evaluating the burden on the right to free exercise of religion). The First Amendment does not confer a right to pay one’s taxes into the general fund, because the injury of compelled funding (as opposed to the injury of compelled speech) does not stem from the Government’s mode of accounting. Cf. Bowen v. Roy, 476 U. S. 693, 700 (1986) (“The Free Exercise Clause . . . does not afford an individual a right to dictate the conduct of the Government’s internal procedures”); id., at 716-717 (Stevens, J., concurring in part and concurring in result). Some of our cases have justified compelled funding of government speech by pointing out that government speech is subject to democratic accountability. See, e. g., Abood, 431 U. S., at 259, n. 13 (Powell, J., concurring in judgment); Southworth, 529 U. S., at 235. But our references to “traditional political controls,” id., at 229, do not signify that the First Amendment duplicates the Appropriations Clause, U. S. Const., Art. I, § 9, cl. 7, or that every instance of government speech must be funded by a line item in an appropriations bill. Here, the beef advertisements are subject to political safeguards more than adequate to set them apart from private messages. The program is authorized and the basic message prescribed by federal statute, and specific requirements for the promotions’ content are imposed by federal regulations promulgated after notice and comment. The Secretary of Agriculture, a politically accountable official, oversees the program, appoints and dismisses the key personnel, and retains absolute veto power over the advertisements’ content, right down to the wording. And Congress, of course, retains oversight authority, not to mention the ability to reform the program at any time. No more is required. As to the second point, respondents’ argument proceeds as follows: They contend that crediting the advertising to “America’s Beef Producers” impermissibly uses not only their money but also their seeming endorsement to promote a message with which they do not agree. Communications cannot be “government speech,” they argue, if they are attributed to someone other than the government; and the person to whom they are attributed, when he is, by compulsory funding, made the unwilling instrument of communication, may raise a First Amendment objection. We need not determine the validity of this argument— which relates to compelled speech rather than compelled subsidy — with regard to respondents’ facial challenge. Since neither the Beef Act nor the Beef Order requires attri-' bution, neither can be the cause of any possible First Amendment harm. The District Court’s order enjoining the enforcement of the Act and the Order thus cannot be sustained on this theory. On some set of facts, this second theory might (again, we express no view on the point) form the basis for an as-applied challenge — if it were established, that is, that individual beef advertisements were attributed to respondents. The record, however, includes only a stipulated sampling of these promotional materials, see App. 47, and none of the exemplars provides any support for this attribution theory except for the tagline identifying the funding. Respondents apparently presented no other evidence of attribution at trial, and the District Court made no factual findings on the point. Indeed, in the only trial testimony on the subject that any party has identified, an employee of one of the respondent associations said he did not think the beef promotions would be attributed to his group. Whether the individual respondents who are beef producers would be associated with speech labeled as coming from “America’s Beef Producers” is a question on which the trial record is altogether silent. We have only the funding tagline itself, a trademarked term that, standing alone, is not sufficiently specific to convince a reasonable factfinder that any particular beef producer, or all beef producers, would be tarred with the content of each trademarked ad. We therefore conclude that on the record before us an as-applied First Amendment challenge to the individual advertisements affords no basis on which to sustain the Eighth Circuit’s judgment, even in part. * * * Respondents’ complaint asserted a number of other grounds for declaring the Beef Act, the Beef Order, or both invalid in their entirety. The District Court, having enjoined the Act and the Order on the basis of the First Amendment, had no occasion to address these other grounds. Respondents may now proceed on these other claims. The judgment of the Court of Appeals is vacated, and the cases are remanded for further proceedings consistent with this opinion. It is so ordered. In most cases, only 50 cents per head is remitted to the Beef Board, because the Beef Act and Beef Order allow domestic producers to deduct from their $1 assessment up to 50 cents in voluntary contributions to their state beef councils. 7 U. S. C. §2904(8)(C); 7 CFR § 1260.172(a)(3) (2004). The Department of Agriculture oversees similar programs of promotional advertising, funded by checkoffs, for a number of other agricultural commodities. See 7 CFR § 1205.10 et seq. (2004) (cotton); § 1207.301 et seq. (potatoes); §1210.301 et seq. (watermelons); §1215.1 et seq. (popcorn); § 1216.1 et seq. (peanuts); § 1218.1 et seq. (blueberries); § 1219.1 et seq. (Hass avocados); §1220.101 et seq. (soybeans); §1230.1 et seq. (pork); §1240.1 et seq. (honey); § 1250.301 et seq. (eggs); § 1280.101 et seq. (lamb). In United Foods, the Court distinguished (and the dissent relied on) Glickman v. Wileman Brothers & Elliott, Inc., 521 U. S. 457 (1997), which upheld the use of mandatory assessments to fund generic advertising promoting California tree fruit. In Glickman, as in United Foods, the Government did not argue that the advertising was permissible government speech. See 521 U. S., at 482, n. 2 (Souter, J., dissenting) (noting that the Government had waived any such argument). Rather, the Government contended,-and we agreed, that compelled support for generic advertising was legitimately part of the Government’s “collectivist” centralization of the market for tree fruit. Id., at 475 (opinion of the Court). Here, as in United Foods, “there is no broader regulatory system in place” that collectivizes aspects of the beef market unrelated to speech, so Glickman is not controlling. 533 U. S., at 415. We therefore need not label the Operating Committee as “governmental” or “nongovernmental.” The entity to which assessments are remitted is the Beef Board, all of whose members are appointed by the Secretary pursuant to law. The Operating Committee’s only relevant involvement is ancillary — it designs the promotional campaigns, which the Secretary supervises and approves — and its status as a state actor thus is not directly at issue. The principal dissent suggests that if this is so, then the Government has adopted at best a mixed message, because it also promulgates dietary guidelines that, if followed, would discourage excessive consumption of beef. Post, at 577, n. 5 (opinion of Souter, J.); see also post, at 569-570 (Ginsburg, J., concurring in judgment). Even if we agreed that the protection of the government-speech doctrine must be forfeited whenever there is inconsistency in the message, we would nonetheless accord the protection here. The beef promotions are perfectly compatible with the guidelines’ message of moderate consumption — the ads do not insist that beef is also What’s for Breakfast, Lunch, and Midnight Snack. Congress also required a referendum among producers before permanently implementing the checkoff, and allowed the Secretary to call another referendum upon demand of a “representative group” comprising 10 percent of cattle producers. 7 U. S. C. §§ 2906(a) — (b). Even before they amended their complaint to challenge the checkoff as compelled speech, respondents were seeking in this litigation to force such a referendum. See 207 F. Supp. 2d 992, 995 (SD 2002). The principal dissent finds some “First Amendment affront” in all compelled fiinding of government speech — and when, it says, “a targeted assessment ... makes the First Amendment affront more galling,... greater care is required to ensure that the political process can practically respond to limit the compulsion.” Post, at 576. That greater care consists, the dissent says, of a requirement that government speech funded by a targeted assessment must identify government as the speaker. Post, at 576-578. The dissent cites no prior practice, no precedent, and no authority for this highly refined elaboration — not even anyone who has ever before thought of it. It is more than we think can be found within “Congress shall make no law ... abridging the freedom of speech.” Of course, nothing in the Beef Act or Beef Order prevents the Government from identifying itself as sponsor of the ads — much less requires concealment of the ads’ provenance — so even if it were correct, this theory would not sustain the judgment below, which altogether enjoined the Act and the Order. But the correct focus is not on whether the ads’ audience realizes the Government is speaking, but on the compelled assessment’s purported interference with respondents’ First Amendment rights. As we hold today, respondents enjoy no right not to fund government speech — whether by broad-based taxes or targeted assessments, and whether or not the reasonable viewer would identify the speech as the government’s. If a viewer would identify the speech as respondents’, however, the analysis would be different. See infra this page and 565-567, and n. 8. The principal dissent conflates the two concepts into something it describes as citizens’ “presumptive autonomy as speakers to decide what to say and what to pay for others to say.” Post, at 576. As we discuss in the text, there might be a valid objection if “those singled out to pay the tax are closely linked with the expression” (post, at 575-576) in a way that makes them appear to endorse the government message. But this compelled-speech argument (like the Wooley and Barnette opinions on which it draws) differs substantively from the compelled-subsidy analysis. The latter invalidates an exaction not because being forced to pay for speech that is unattributed violates personal autonomy, but because being forced to fund someone else’s private speech unconnected to any legitimate government purpose violates personal autonomy. Supra, at 557-558 (discussing Keller and Abood). Such a violation does not occur when the exaction funds government speech. Apportioning the burden of funding government operations (including speech) through taxes and other levies does not violate autonomy simply because individual taxpayers feel “singled out” or find the exaction “galling,” post, at 575-576, and n. 4. An employee of respondent Western Organization of Resource Councils (WORC) testified as follows: “Q When someone would see an ad that says, ‘Beef, it’s what’s for dinner,’ do you believe anyone looks at that ad and says that message is coming from WORC? “A I don’t think so. “Q . .'. [D]o you have any basis to actually believe that any of these messages promoted by the Cattlemen’s Beef Board are attributed to WORC as an organization? “A No, I don’t think so.” Tr. 46-47 (Jan. 14, 2002). . The phrase “America’s Beef Producers” has apparently been trademarked by the Board since 1999, see http://tarr.uspto.gov/servlet/tarr? regser=registration&entry=2352917 (as visited May 20,2005, and available in Clerk of Court’s case file), and some promotional materials are attributed to “America’s Beef ProducersSM.” Other promotional materials in the record, however, bear other attributions (such as a notice identifying the Beef Board as the copyright holder, or the apparently untrademarked phrase “Funded by America’s Veal Producers through the Beef Checkoff”). App. 52. “America’s Beef Producers” might be thought more plausibly to refer to a particular organization of beef producers, and such an organization might have a valid First Amendment objection if the ads’ message were incorrectly attributed to it. Cf. Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557, 572-573 (1995). But neither of the respondent groups claims that it would be mistaken for “America’s Beef Producers,” see n. 9, supra, and none of the individual respondents claims to be injured because of his membership in an organization. Rather, respondents claim that “America’s Beef Producers” is precise enough to identify the speech as coming from Robert Thullner, John Smith, Ernie Mertz, and the other respondents who are American beef producers. Question: What is the issue of the decision? A. First Amendment, miscellaneous (cf. comity: First Amendment) B. commercial speech, excluding attorneys C. libel, defamation: defamation of public officials and public and private persons D. libel, privacy: true and false light invasions of privacy E. legislative investigations: concerning internal security only F. federal or state internal security legislation: Smith, Internal Security, and related federal statutes G. loyalty oath or non-Communist affidavit (other than bar applicants, government employees, political party, or teacher) H. loyalty oath: bar applicants (cf. admission to bar, state or federal or U.S. Supreme Court) I. loyalty oath: government employees J. loyalty oath: political party K. loyalty oath: teachers L. security risks: denial of benefits or dismissal of employees for reasons other than failure to meet loyalty oath requirements M. conscientious objectors (cf. military draftee or military active duty) to military service N. campaign spending (cf. governmental corruption): O. protest demonstrations (other than as pertains to sit-in demonstrations): demonstrations and other forms of protest based on First Amendment guarantees P. free exercise of religion Q. establishment of religion (other than as pertains to parochiaid:) R. parochiaid: government aid to religious schools, or religious requirements in public schools S. obscenity, state (cf. comity: privacy): including the regulation of sexually explicit material under the 21st Amendment T. obscenity, federal 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. Charles Joseph BATTAGLIA, Jr., Appellant, v. UNITED STATES of America, Appellee. No. 23542. United States Court of Appeals, Ninth Circuit. May 8, 1970. Charles Joseph Battaglia, Jr., in pro. per. Joseph Corey, Sp. Atty., Dept, of Justice, Washington, D. C., Richard K. Burke, U. S. Atty., Jo Ann D. Diamos, Asst. U. S. Atty., Will Wilson, Asst. Atty. Gen., Tucson, Ariz., for appellee. Before MADDEN, Judge of the United States Court of Claims, and KOELSCH and KILKENNY, Circuit Judges. Senior Judge, the United States Court of Claims, sitting by designation. KILKENNY, Circuit Judge: Appellant was indicted, tried and convicted, in a non-jury trial, on a charge of violating the Hobbs “Anti-Racketeering” Act, 18 U.S.C. § 1951. After his conviction was affirmed, Battaglia v. United States, 383 F.2d 303 (9th Cir. 1967), and his petition for certiorari denied, 390 U.S. 907, 88 S.Ct. 817, 19 L.Ed.2d 874 (1968), he moved to vacate sentence pursuant to 28 U.S.C. § 2255. Relief was sought on the ground that he was under the influence of drugs at the time of trial, and, consequently, unable to understand the charges against him or to meaningfully cooperate with his attorney. By strange coincidence, the grounds on which appellant relies are essentially the same as those successfully utilized by his brother, John, in Battaglia v. United States, 390 F.2d 256 (9th Cir. 1968). A fair insight into appellant’s nefarious activities is provided by the factual statement on appellant’s original appeal. Of great significance, on an issue such as here presented, is the fact that the original trial and the 2255 proceedings were before the same judge. Appellant waived his right to a jury trial in the original proceedings. In these circumstances, the trial judge in passing on the petition for relief had the right, and probably the duty, to place important reliance on his own views of appellant’s conduct during the course of the trial. Mirra v. United States, 379 F.2d 782, 788 (2d Cir. 1967), cert. denied 389 U.S. 1022, 88 S.Ct. 593, 19 L.Ed.2d 667. The record before the lower court, and now before us, cannot be completely understood without an analysis of appellant’s pretrial maneuvers to avoid ever coming to grips with the charges against him. The original indictment was returned against him and two others in early March, 1965. A short time later, appellant moved for a change of venue or for a continuance, or both. The trial date was originally scheduled for May 4th, but was then set over, at his request, to June 30th. On June 28th, appellant moved for a continuance on the ground of ill health. The trial was rescheduled for September 7th. Later, on his motion, that trial date was vacated and a new date of December 7th was assigned. On December 2nd, he again claimed ill health and asked for a continuance. Once more the trial date was vacated and a new trial date of March 15, 1966, was assigned. Already one year had expired. On March 9th, he again claimed illness and moved for a continuance. The trial date was vacated and May 24th assigned as a new trial date. On May 19th, he again claimed illness and moved for a continuance. Again, the trial date was vacated and a new date assigned for September 22nd. On September 20th, he again moved for a continuance on the same ground. The trial date was once more vacated and a new date of January 10, 1967, was assigned. Appellant remained adamant in his resistance to trial, and on January 10th, once again moved for a continuance on the grounds of ill health. This motion was denied, but he did obtain a temporary continuance to January 16th, at which time a hearing on a motion to suppress was scheduled. On the next day, the 17th, it was noted that appellant appeared to be in physical difficulty. The court called a recess and ordered a medical evaluation report. The report was filed on January 18th, at which time the trial was resumed. On the last motion for continuance, the appellant presented the testimony of his own doctor, who emphasized that it was the emotional stress of going to trial, rather than any physical or mental incapacity, which produced the alleged incapacity. True enough, the doctor did say that appellant was somewhat on the “punchy side”, and that “he was under the effects of the narcotics”, but he then conceded that appellant would be faced with precisely the same general problems every time he was confronted with trial. The trial judge found, after a full preliminary hearing, that to continue the case on the January 10th motion would be tantamount to dismissing the indictment. The United States Attorney had reported that in the previous two years the witnesses had scattered, that they had been subpoenaed to appear on four or five previous occasions and on each occasion they were more difficult to find. After appellant appeared to be under some stress on January 17th, the court, as previously noted, ordered an examination by a doctor appointed at the suggestion of Judge Walsh, the Chief Judge for the District of Arizona. This doctor’s original report was marked and filed as part of the record. He interpreted the appellant’s electrocardiogram as being within normal limits, as were the blood enzymes. It was this doctor’s conclusion that he “ * * * could not establish any objective evidence that any deleterious effect on his (the appellant’s) health had occurred from the chest pains reported this morning.” The judge’s finding toward the end of the proceeding is of even greater significance. That the trial judge had little, if any, confidence in the testimony of defendant’s doctor is demonstrated by his statement and finding on the motion for a new trial. No one is in a better position to look at and analyze the record in light of the charges than is the trial judge who presided over the original proceedings. He had appellant under constant observation, recognizing that the latter had some disability, even to the extent of granting recess after recess for his accommodation. In addition to the observations of the appellant, the judge had the medical records before him. No one can read the record in this case without arriving at the conclusion that appellant had excellent legal representation throughout the original trial. For that matter, at the close of the trial, the appellant’s attorney was highly commended by the trial judge. Nor can anyone with sincerity argue that the appellant was not ably represented by his counsel on the original appeal. ■ Thus, it clearly appears that the ground for relief presently urged by appellant was considered and decided by the district court in the original trial. Beyond question, this factual resolution was one which appellant could have attacked on his direct appeal. Meador v. United States, 332 F.2d 935 (9th Cir. 1964); Hammond v. United States, 408 F.2d 481 (9th Cir. 1969). He made no such attack. Consequently, the present proceeding, in effect, amounts to nothing more than an attempt to try this matter de novo. That this type of proceeding may not be invoked to relitigate questions which were, or should have been, raised on direct appeal was decided in United States v. Marchese, 341 F.2d 782, 789 (9th Cir. 1965), cert. denied 382 U.S. 817, 86 S.Ct. 41, 15 L.Ed.2d 64. The same rule is applied where there is no appeal. Grimes v. United States, 396 F.2d 331 (9th Cir. 1968). While a specific intent is necessary to constitute a waiver, that intent can be shown by circumstantial evidence. Rarely, can intent be shown in any other manner. The trial judge’s conclusion that appellant waived this issue when he did not present it in the original appeal is amply supported by the record. For example, on the motion for judgment of acquittal, notwithstanding the verdict, or, in the alternative, for a new trial, appellant and his attorney had an excellent opportunity to urge the point, if they thought it was meritorious. For reasons not disclosed by the record, appellant and his attorney deliberately chose not to press the issue. We quote appellant’s counsel: “As far as the competency of the defendant to stand trial, I won’t pursue that at this time; I don’t think it’s appropriate here now.” In other words, at that very moment, appellant’s counsel was saving this point for appeal. In our opinion, the judge was acting within the confines of judicial propriety in this proceeding when he disregarded the affidavit of one Dr. Ross. The document was made some years after the trial and, at best, is a psychiatrist’s guess on appellant’s mental condition at the time of trial. The record is completely devoid of anything which even remotely suggests that appellant was so under the influence of narcotics that he was unable to assist his counsel during the course of the appeal. The judge’s finding, “that the records and files in this case show that his claim for relief is not well founded in fact”, is just another way of saying that the records and files conclusively demonstrated that appellant was entitled to no relief. On the record here presented, the trilogy of guideline decisions, Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963); Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963); and Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963), supports our conclusions that appellant is not entitled to relief. The trial judge’s findings and order, with which we are in general though not necessarily specific agreement, are reported in 311 F.Supp. 1126. Affirmed. . “One further thing. During the course of these proceedings, defendant has been in attendance and has appeared * that he has at times used oxygen from a container, that he has been in the hospital during the period of time that these proceedings have been held, that he entered the hospital a couple of days prior to the time that these proceedings started. Prom the testimony of his own physician, and from the report made to the Court by the Court’s physician, the Court finds that he is capable of attending the proceedings, and the Court further finds from his own observation and from his doctor’s report that he is capable of assisting in his defense" (Emphasis supplied.) (Yol. 5, T.R., p. 254). * [Sic], . “So, to make the record clear, I hold now again, I do not believe Dr. vonDedenroth. I am just that blunt about it. I do not believe his testimony, and I do believe what Dr. Dexter incorporated in his report. That’s my finding. And the reason I don’t believe .what Dr. vonDedenroth said is because of the way in which he testified, my observation of him while he was a witness, and those are two of the factors, and the other is that I just don’t believe his report or his testimony was borne out by the actual facts.” (Vol. 7, T.R., p. 6). 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_casetyp1_7-3-2
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 - torts". Regis Ann GOULD, as Parent Guardian and next of friend of Aaron Russell Gould and Adrienne Marie Gould, Regis Ann Gould, as Special Administrator of the Estate of Gary Francis Gould; Regis Ann Gould, Plaintiffs-Appellants, v. U.S. DEPARTMENT OF HEALTH & HUMAN SERVICES; Public Health Service, Defendants-Appellees. No. 88-3091. United States Court of Appeals, Fourth Circuit. Argued Feb. 5, 1990. Decided June 8, 1990. As Amended June 18, 1990. Joseph Cornelius Ruddy, Jr., Hyattsville, Md., for plaintiffs-appellants. Lowell V. Sturgill, Jr., U.S. Dept, of Justice, Washington, D.C., for defendants-ap-pellees. Breckinridge L. Willcox, U.S. Atty., Juliet A. Eurich, Asst. U.S. Atty., Baltimore, Md., Sally K. Trebbe, Office of the Gen. Counsel, Dept, of Health and Human Services, on brief, Washington, D.C., for defendants-appellees. Before ERVIN, Chief Judge, and RUSSELL, WIDENER, HALL, PHILLIPS, MURNAGHAN, SPROUSE, CHAPMAN, WILKINSON, and WILKINS, Circuit Judges, sitting en banc. CHAPMAN, Circuit Judge: Regis Ann Gould filed this action individually, and in the dual capacity as special administrator of the estate of her late husband, Gary Francis Gould, and as a parent guardian and next friend of her minor children, Aaron Russell Gould and Adrienne Marie Gould, seeking damages for the alleged wrongful death of Gary Francis Gould resulting from alleged medical malpractice. The district court granted the defendants’ motion for summary judgment and found that the claim was time barred under 28 U.S.C. § 2401(b). Appellant asserts that her claim was timely because such claim did not accrue until she learned that one of the treating physicians was a federal employee. We find that the cause of action accrued when the plaintiffs learned of both the existence and the cause of the decedent’s injury, and we affirm. I On August 27, 1980, the decedent, Gary Francis Gould, began experiencing headache, fever, nausea, stiff neck and other symptoms of illness. These conditions persisted and on the morning of August 30, 1980, he went to the South County Family Health Care Corporation in Anne Arundel County, Maryland, and was treated by James Kevin O’Rourke, M.D., a commissioned officer of the United States Public Health Service assigned to the National Health Service Corps and working at the health center. The Commissioned Corps of the Public Health Service is established and administered pursuant to the Public Health Service Act, 42 U.S.C. §§ 204 et seq. The National Health Service Corps is established pursuant to 42 U.S.C. § 254d. The purpose of the Corps is to provide health care providers in areas designated as health manpower shortage areas, and the Public Health Service is an agency in the Department of Health and Human Services. After being treated by Dr. O’Rourke, Mr. Gould returned home, but his condition deteriorated. He called Dr. O’Rourke again, and on the afternoon of August 30, 1980, he was admitted to the Anne Arundel General Hospital where Dr. Barry R. Nathan-son, M.D., a civilian employee of the United States Public Health Service in the National Health Service Corps, consulted with Dr. O’Rourke about Mr. Gould’s condition. Each of these doctors was a federal employee assigned to the South County Family Health Care Corporation in a health manpower shortage area. Numerous tests were performed with negative results and it was thought that the symptoms were from a viral syndrome. However, when a rash developed on September 3, Dr. O’Rourke suspected Rocky Mountain Spotted Fever, and a consultation with an infectious disease specialist confirmed this diagnosis. Antibiotic therapy was immediately begun, but Mr. Gould died at the hospital on September 4, 1980. During the course of treatment, particularly prior to the diagnosis of Rocky Mountain Spotted Fever, members of the Gould family complained about the deterioration in Gould’s condition and were advised that the condition was a virus. In a letter of August 8, 1983, plaintiffs’ counsel requested information from the Department of Public Health regarding the “exact work status” of Dr. O’Rourke. The Department of Health and Human Services (HHS) was promptly notified of this request and responded to the inquiry. ' On September 2,1983, a HHS attorney notified plaintiffs’ attorney by telephone of Dr. O’Rourke’s status as a federal employee at the time he treated the decedent. The following day, plaintiffs’ counsel was advised by HHS that Dr. Nathanson was also a federal employee at the time of such treatment. Plaintiffs' attorney received written confirmation of Dr. O’Rourke’s employment status on September 26, 1983, and a similar notice of Dr. Nathanson’s status on December 16, 1983. The plaintiffs took no action against the United States at this time, but on September 2, 1983, within hours of the expiration of the claim under Maryland’s three-year statute of limitations, plaintiffs initiated a claim against the individual physicians before the Health Claims . Arbitration Board alleging negligent care and treatment of the decedent. On December 16, 1985, the action before the Health Claims Arbitration Board was dismissed upon a finding that the doctors were employed by the United States Public Health Service and the alleged wrongdoing fell within the scope of their employment, and they were not subject to suit in a state court or forum pursuant to 28 U.S.C. § 1346(b). In early August 1985, prior to dismissal of the claim before the Health Claims Arbitration Board, an administrative tort claim was presented to the Department of Health and Human Services, Division of Public Health Service, alleging negligence by .National Health Service Corp physicians in failing to expeditiously diagnose and treat Gary F. Gould for Rocky Mountain Spotted Fever. This claim was denied in August 1986 on the ground that it was barred by the statute of limitations applicable to claims prosecuted under the Federal Tort Claims Act, 28 U.S.C. § 2401(b). In February 1987, plaintiffs initiated the present action in the United States District Court for the District of Maryland. The defendants raised the bar of the two-year limitation provision contained in 28 U.S.C. § 2401(b). Plaintiffs countered that she had neither direct nor implicit knowledge of the status of the physicians as federal employees, and that the statute of limitations should be tolled until plaintiffs were made aware of the fact that the physicians were federal employees, because the exercise of due diligence would not have revealed this fact. The district court rejected this argument and found that the statutory period had expired, and that the court lacked jurisdiction as a matter of law. We agree and affirm. II It is well established that the United States Government, as sovereign, is immune from suit unless it consents to be sued. The terms of its consent to be sued in any court define that court’s jurisdiction to entertain the suit. United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 769, 85 L.Ed. 1058 (1941). Congress created a limited waiver of sovereign immunity in the FTCA. 28 U.S.C. §§ 2671-2680. This waiver permits suit only on terms and conditions strictly prescribed by Congress. Honda v. Clark, 386 U.S. 484, 501, 87 S.Ct. 1188, 1197, 18 L.Ed.2d 244 (1967). Although the FTCA gives limited consent to suits against the federal government for torts committed by its employees while acting within the scope of their official duties, the Act specifically requires an initial presentation of a claim to the appropriate federal agency within two years of the accrual of the cause of action and a final denial by that agency as a jurisdictional prerequisite to suit under the Act. 28 U.S.C. §§ 2401(b), 2675(a); Kielwien v. United States, 540 F.2d 676, 679 (4th Cir.), cert. denied, 429 U.S. 979, 97 S.Ct. 491, 50 L.Ed.2d 588 (1976); West v. United States, 592 F.2d 487, 492 (8th Cir.1979). The applicable statute of limitation within the framework of the FTCA provides: “A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues_” 28 U.S.C. § 2401(b). This time limitation is jurisdictional and nonwaivable. Kielwien, 540 F.2d at 679. Statutes of limitation, which “are found and approved in all systems of enlightened jurisprudence,” Wood v. Carpenter, 101 U.S. 135, 139, 25 L.Ed. 807 (1879), represent a legislative determination that “even if one has a just claim it is unjust not to put the adversary on notice to defend within the period of limitation and that the right to be free of stale claims in time comes to prevail over the right to prosecute them.” Order of Railroad Telegraphers v. Railway Express Agency, 321 U.S. 342, 349, 64 S.Ct. 582, 586, 88 L.Ed. 788 (1944). While affording plaintiffs what legislatures deem reasonable time to present claims, statutes of limitation give defendants and courts a degree of protection from having to confront controversies in which the search for truth may be thwarted by the loss of evidence, whether by the death or disappearance of witnesses, fading memories, loss of physical evidence, or the like. United States v. Manon, 404 U.S. 307, 322 n. 14, 92 S.Ct. 455, 464 n. 14, 30 L.Ed.2d 468 (1971); Burnett v. New York Central Railroad Co., 380 U.S. 424, 428, 85 S.Ct. 1050, 1054, 13 L.Ed.2d 941 (1965). Section 2401(b) represents a deliberate balance struck by Congress whereby a limited waiver of sovereign immunity is conditioned upon the prompt presentation of tort claims against the government. The Supreme Court, in recognizing this balance, has instructed the judiciary to abstain from extending or narrowing § 2401(b) beyond that which Congress intended and thereby defeating its obvious purpose. United States v. Kubrick, 444 U.S. 111, 117, 100 S.Ct. 352, 356, 62 L.Ed.2d 259 (1979). Applying these principles, federal courts with few exceptions have dismissed complaints where a plaintiff failed to file a claim with the appropriate federal agency within the two-year limitations period, even in cases where the plaintiff’s failure to submit a claim in a timely manner was the result of the plaintiffs ignorance of the defendant’s status as a federal employee. Flickinger v. United States, 523 F.Supp. 1372, 1375 (W.D.Pa.1981). Courts have held that despite the harsh impact of this rule on plaintiffs, Wilkinson v. United States, 677 F.2d 998, 1001 (4th Cir.), cert. denied, 459 U.S. 906, 103 S.Ct. 209, 74 L.Ed.2d 167 (1982), and “strong equitable considerations notwithstanding, the two-year limitation period of 28 U.S.C. § 2401(b) cannot be tolled or waived.” Lien v. Beehner, 453 F.Supp. 604, 606 (N.D.N.Y.1978). See also United Missouri Bank South v. United States, 423 F.Supp. 571, 577 (W.D.Mo.1976) (limitation provision of FTCA not to be extended by implication or by equitable considerations). Although FTCA liability is determined “in accordance with the law of the place where the act or omission occurred,” 28 U.S.C. § 1346(b), federal law determines when a claim accrues. Stoleson v. United States, 629 F.2d 1265, 1268 (7th Cir.1980); Portis v. United States, 483 F.2d 670, 672 n. 4 (4th Cir.1973); Sexton v. United States, 832 F.2d 629, 633 n. 4 (D.C.Cir.1987); Wehrman v. United States, 830 F.2d 1480, 1482-83 (8th Cir.1987). In United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979), the Supreme Court reiterated that the general rule under the FTCA “has been that a tort claim accrues at the time of the plaintiff’s injury, “although in medical malpractice cases it is thought to extend “until the plaintiff has discovered both his injury and its cause.” Id. at 120, 100 S.Ct. at 358. The clear import of Kubrick is that a claim accrues within the meaning of § 2401(b) when the plaintiff knows or, in the exercise of due diligence, should have known both the existence and the cause of his injury. “This decision signifies a retreat from the expansive view of ‘accrual’ previously adopted by a number of the circuits, including the Fourth Circuit.” Dessi v. United States, 489 F.Supp. 722, 724 (E.D.Va.1980). Under Kubrick, the court concluded in Dessi, nothing more than knowledge of injury and causation is required for the cause of action to accrue. The action accrues even if the claimant believes that his injury was unavoidable and did not indicate negligent treatment. It is the plaintiff’s burden, once he knows of his injury and its cause, to determine within the limitations period whether or not to file suit. Id. at 725. See also Gilbert v. United States, 720 F.2d 372, 374 (4th Cir.1983) (“The Supreme Court has determined that a cause of action accrues within the meaning of [28 U.S.C.] § 2401(b) when a prospective plaintiff knows of both the existence of his injury and its cause.”); Dearing v. United States, 835 F.2d 226, 228 (9th Cir.1987) (“A medical malpractice claim does not accrue under the FTCA until the plaintiff discovers, or reasonably should have discovered, his injury and its causes.”); Wehrman, 830 F.2d at 1483 (same). The question presented by this case is when did the plaintiffs’ claim “accrue” within the meaning of the FTCA? Did the cause of action accrue when plaintiffs learned both of the existence and cause of the decedent’s injury, or did it only accrue when plaintiffs also learned the legal identity of the alleged tort-feasors as federal employees? We hold that plaintiffs’ claim accrued, in accordance with Kubrick, on September 4, 1980, upon the death of Gary Francis Gould. Plaintiffs at this time were aware of the existence of the injury and its cause, including the identity and conduct of attending physicians. This sufficiently armed plaintiffs with the “critical facts” to investigate the claim and present it within the two-year statute of limitations. The plaintiffs argue that in addition to knowledge of the injury and its cause, Kubrick implies that a claim does not accrue until a plaintiff learns the legal identity of the alleged tort-feasor as a federal employee. The statute of limitation should be tolled, plaintiffs continue, when pertinent information such as knowledge of the injury or the legal identity of the tort-feasor is in the control of the putative defendant, unavailable to the plaintiff or at least difficult to obtain. Significantly, the legal identity of the tort-feasor was presumed in Kubrick. Nowhere in Kubrick is any reference to the legal identity of the tort-fea-sor. This rule has been considered and rejected in this Circuit. In Baker v. United States, 341 F.Supp. 494 (D.Md.1972), aff'd per curiam, No. 72-1708 (4th Cir. Nov. 30, 1972), it was held that an automobile negligence action filed in state court within the three-year Maryland limitation period but more than two years after the accident was forever barred pursuant to 28 U.S.C. § 2401(b). A defendant driver, who was acting within the scope of his government employment at the time of the accident, initially handled the claim through his insurance company and his own attorney. Some five years after the accident the defendant brought the claim to the attention of government officials, after which the government promptly removed the claim to federal court where the United States was substituted as the party defendant. The plaintiff did not discover until after the statute of limitations had run that the driver who allegedly caused the accident was a federal employee acting within the scope of his employment. “All cases cited or found,” the district court concluded, “have held that the [FTCA] two-year limitation period applies, and that such suits cannot be remanded to the state court to proceed against the government employee individually.” Baker, 341 F.Supp. at 495-96 (citations omitted). The court further stated: That result in the instant case seems unfair, since no one realized until too late that Smith was in the course of his employment by the government at the time of the accident. However, no facts which would ordinarily amount to an es-toppel against Smith, his insurer or the government have been shown. Other courts have applied the statute strictly against plaintiffs in circumstances which seem to be more favorable to the plaintiff than those in the cases at bar. See, e.g., Mann v. United States, [399 F.2d 672 (9th Cir.1968)]. If this case is appealed, I would be happy to be reversed. But under the statute and the authorities, I must dismiss the suits. Id. at 496. We affirmed this judgment of the district court. ■ In Wilkinson v. United States, 677 F.2d 998 (4th Cir.), cert. denied, 459 U.S. 906, 103 S.Ct. 209, 74 L.Ed.2d 167 (1982), a rented car driven by a sailor on business for the Navy collided with the plaintiffs automobile. At the time of the collision, the plaintiff knew that the other driver was employed by the Navy. There was no indication, however, that the plaintiff was aware that the driver was actually on government business. We rejected the plaintiffs assertion that the cause of action did not accrue until he learned that the sailor was acting within the scope of his employment at the time of the accident and thus was covered by the FTCA. Id. at 1000. Speaking for the majority, Judge Murnaghan emphasized that the government employee and government officials responded to the plaintiffs claim in a reasonable, timely and fair manner. Moreover, attorneys for the government in Wilkinson, like those in the case before us, “were not shown to have known that the accident had even occurred until a date more than two years after the accrual of the claim.... No less established is the fact that the Government has not behaved in any unfair way, and that, as between it and [plaintiff], the latter, or, more realistically, his counsel, brought about the consequences resulting from counsel’s inaction.” Id. at 1000-01. The same observations, it seems, could be made in the case at bar. In Henderson v. United States, 785 F.2d 121 (4th Cir.1986), a substitute U.S. mail carrier collided with the plaintiffs automobile. Although the plaintiff had reason to know that the vehicle which struck her may have been a government vehicle, she argued that her cause of action did not accrue until she ascertained that the driver was a federal employee. In rejecting the argument, we held that there was sufficient information available to the plaintiff to put her on notice that the other driver was an agent of the federal government. The rule which plaintiffs now propose would establish an exception that would change all precedents as to when a medical malpractice action accrues, and would be against the clear admonition in Kubrick that courts should carefully construe the statute of limitation for the FTCA so as not to extend the limited waiver of sovereign immunity beyond that which Congress intended. Id. 444 U.S. at 117-18, 100 S.Ct. at 356-57. Such a holding would greatly expand the rule that was unsuccessfully proposed by the dissent in Wilkinson, because it would place no burden upon a plaintiff or a plaintiffs attorney to exercise reasonable care, to investigate or to take any action to determine the employment status of an alleged tort-feasor. The well-established rule is that once a prospective plaintiff learns of his injury, he is on notice that there may have been an invasion of his legal rights and that he should investigate whether another may be liable to him. Zeleznik v. United States, 770 F.2d 20, 22 (3d Cir.1985), cert. denied, 475 U.S. 1108, 106 S.Ct. 1513, 89 L.Ed.2d 913 (1986). While Wilkinson and Henderson, unlike Baker, arguably differ from the present facts because there was no indication that the defendants in the case sub judice were federal employees, Wilkinson and Henderson indicate that plaintiffs have an affirmative duty to inquire as to the legal identity of the defendant. There is no evidence that Mrs. Gould sought to ascertain or was denied access to information concerning the employment status of the treating physicians prior to the expiration of the limitations period. Neither is there evidence that the treating physicians “held themselves out as agents and employees of the private health facility” so as to mislead or deceive the plaintiffs or otherwise hide their legal identity as federal employees. Kubrick, Baker, Wilkinson and Henderson stand for the proposition that a cause of action accrues once the existence of an injury and its cause are known. The statute of limitations under the FTCA commences to run from the date of accrual and does not wait until a plaintiff is aware that an alleged tort-feasor is a federal employee. The Second Circuit held in Kelley v. United States, 568 F.2d 259, 262 (2d Cir.), cert. denied, 439 U.S. 830, 99 S.Ct. 106, 58 L.Ed.2d 124 (1978), that when the government intentionally delays in order to invoke the statute of limitations, the statute is tolled. In the case at bar, however, there is no evidence that the government stalled the discovery process or otherwise blocked plaintiffs from obtaining information within the limitations period. Indeed, the evidence is to the contrary. While it is true that the employment status of the attending physicians was not made known to plaintiffs at the time treatment was given, it is also true that plaintiffs made no inquiry as to the physicians’ employment status until August 1983. When asked, the government responded promptly to plaintiffs’ request for this information. Unfortunately, such requests were not made until the statute of limitations had expired. The district court correctly observed: “With the death and its cause discovered on September 4, 1980, due diligence is not present when an initial inquiry about who employed the tort-feasors is made 35 months later and then instituting the administrative tort claim two years after the inquiry.” The facts indicate that plaintiffs failed to exercise due diligence. Indeed, there is nothing in the record to suggest that prior to August 1983 plaintiffs’ counsel made any effort to investigate the legally significant facts which plaintiffs contend would have been undiscoverable even if due diligence had been exercised. This argument, it seems, impliedly concedes that plaintiffs failed to exercise due diligence in investigating the elements of their claim. Plaintiffs have failed to meet their burden and duty of exercising due diligence. The government is under no obligation to notify every prospective plaintiff of its identity and involvement through its employees in all potential legal actions. Van Lieu v. United States, 542 F.Supp. 862, 866 (N.D.N.Y.1982). The burden is on the plaintiff to discover the employment status of the tort-feasor and to bring suit within the applicable limitations period. See Des-si, 489 F.Supp. at 725 (“It is the plaintiff’s burden, once he knows of his injury and its cause, to determine within the limitations period whether or not to file suit.”); Zelez-nik, 770 F.2d at 23 (once a party learns of his injury he is put on notice of a potential claim and “the burden is upon him to determine within the limitations period whether any party may be liable to him”). It will not suffice for plaintiffs to assert baldly that “even due diligence would not have discovered the fact that the physicians” were federal employees. The burden is on plaintiffs to show that due diligence was exercised and that critical information, reasonable investigation notwithstanding, was undiscoverable. No evidence was offered to support the assertion that “critical facts” were undiscoverable. Indeed, the government’s prompt response to plaintiffs’ request for information contradicts this contention. No impediment, other than plaintiffs’ inaction, shielded the physicians’ legal identity. In summary, there is neither allegation nor evidence that the government delayed, misled or otherwise obstructed plaintiffs in determining the attending physicians’ employment status. Plaintiffs’ construction of the limitations statute would obviate the necessity of due diligence, even when the injury and its cause are known and a minimum inquiry would have led plaintiffs to discover in a timely manner the employment status of the treating physicians. This approach would remove incentives for the timely investigation and prompt presentation of claims and would enable a plaintiff to maintain a FTCA action against the government years after plaintiff’s injury and its cause are well known if, for any reason, it escaped the plaintiff’s attention — even absent reasonable investigation — that the alleged tort-feasor was a government agent acting within the scope of his employment. An open-ended rule would vitiate the very purpose of the statute of limitations. The plaintiffs further contend that their claim should not be barred by the statute of limitations because they were “blamelessly ignorant” of the federal government’s involvement, and such involvement could not have been presumed, implied or discovered, even after the exercise of due diligence. The Eighth Circuit, in Wollman v. Gross, 637 F.2d 544, 548-49 (8th Cir. 1980), cert. denied, 454 U.S. 893, 102 S.Ct. 389, 70 L.Ed.2d 207 (1981), rejected the suggestion that the doctrine of “blameless ignorance” extends the date of “accrual” until the moment when the plaintiff becomes aware of the defendant’s status as a federal employee. The purpose of the statute of limitations is to require the reasonably diligent presentation of tort claims. This may require a plaintiff to obtain legal counsel promptly and together with counsel discover the critical facts and all of their possible legal ramifications so as to enable the plaintiff to bring suit within a reasonable time. Id. at 549. As stated by the Supreme Court in Kubrick: A plaintiff such as Kubrick, armed with the facts about the harm done to him, can protect himself by seeking advice in the medical and legal community. To excuse him from promptly doing so by postponing the accrual of his claim would undermine the purpose of the limitations statute, which is to require the reasonably diligent presentation of tort claims against the Government. Kubrick, 444 U.S. at 123, 100 S.Ct. at 360. See id. at 128, 100 S.Ct. at 362 (Stevens, J., dissenting) (“A plaintiff who remains ignorant through lack of diligence cannot be characterized as ‘blameless.’ ”); Sexton, 832 F.2d at 633. When the facts of a case become so grave as to alert a reasonable person that there may have been negligence in a patient’s treatment, the statute of limitations begins to run against the claimant’s cause of action. See West, 592 F.2d at 492-93, quoting Hulver v. United States, 562 F.2d 1132, 1134 (8th Cir.1977), cert. denied, 435 U.S. 951, 98 S.Ct. 1576, 55 L.Ed.2d 800 (1978). In the case at bar the plaintiffs were immediately aware of the failure to properly diagnose and treat and knew that Drs. O’Rourke and Nathanson were the decedent’s attending physicians. With this information of the physicians’ errors followed by the patient's death, a reasonable person would have been alerted at the time of the death that such death may have been the result of medical negligence. We are not unmindful that a strict adherence to the requirements of the statute of limitations provision under the FTCA often works a substantial hardship on plaintiffs and may have a harsh impact on a party innocent of any impropriety. Statutes of limitations often make it impossible to enforce what are otherwise valid claims. Although we recognize the hardship resulting to the plaintiffs in this case, we have no choice but to apply the law as written. To accept plaintiffs’ arguments would be rewriting the FTCA to allow broad, open-ended exceptions to §§ 2675(a) and 2401(b). Flickinger, 523 F.Supp. at 1376-77. “Although exceptions to the applicability of the limitations period might occasionally be desirable, we are not free to enlarge that consent to be sued which the Government, through Congress, has undertaken so carefully to limit.” Mann v. United States, 399 F.2d 672, 673 (9th Cir.1968). See also Wollman, 637 F.2d at 549. As the Supreme Court has instructed, it is clearly the prerogative of Congress, not the judiciary, to reform the terms and scope of waiver of sovereign immunity beyond that which Congress intended. Kubrick, 444 U.S. at 117-19, 100 S.Ct. at 356-358. “It goes without saying,” as the Kubrick Court observed, “that statutes of limitations often make it impossible to enforce what were otherwise perfectly valid claims.” Kubrick, 444 U.S. at 125, 100 S.Ct. at 361. Yet, they serve important, well-established purposes affirmed throughout our jurisprudence. We are bound to give them effect until such time as the creator of such provisions, the legislative branch, exercises its prerogative to amend the statute. AFFIRMED. . In his August 8, 1983, letter, plaintiffs’ attorney invited the Department to respond to his request by contacting him or his staff by telephone. The notes from office telephone conversations, identified in the record as defendants’ exhibit 11, show that HHS personnel attempted to contact the attorney by telephone as early as August 18, 1983. HHS personnel spoke with the attorney's secretary, but the attorney was apparently on vacation and unavailable until September. . The suggestion is made by plaintiffs that the term "cause” means both the cause of the injury from a medical point of view and the legal identity of the alleged tort-feasors. Such a reading of the word "cause,” in this context, is not to be found in our legal precedents. Quoting Dyniewicz v. United States, 742 F.2d 484, 486 (9th Cir.1984), the Third Circuit rejected this broad interpretation of “cause”: "Discovery of the cause of one’s injury, however, does not mean knowing who is responsible for it. The 'cause’ is known when the immediate physical cause of the injury is discovered.” Zeleznik v. United States, 770 F.2d 20, 23 (3d Cir.1985). . As in the case at bar, the plaintiff was unaware that the defendant driver was a federal employee, neither was there evidence apparent to others involved in the accident to put them on notice that the defendant was a federal employee acting within the scope of his employment. . The plaintiff in Wilkinson arguably presented a more appealing case than the one before us today in that the case was initiated in a state court prior to expiration of the FTCA statute of limitations. Once the plaintiff was aware of the legal significance of the defendant driver’s status as a federal employee, plaintiff sought to remove the suit to federal court. Nevertheless, we barred the federal action because it was filed in federal court shortly after the FTCA statute had run. Plaintiffs in the case at bar, however, apparently made no attempt to investigate or file their claim until two years and eleven months after plaintiffs knew of the injury and its cause. Plaintiffs did not file an administrative claim with the HHS until nearly five years after Mr. Gould’s death and nearly two years after receiving confirmation of the attending physicians’ work status. It was six and a half years after the injury before suit was initiated in federal court. Such delays by the plaintiffs surely put defendants at a disadvantage in defending the suit against them. . We, of course, have no occasion to address the law where the injury is fully revealed but the tortfeasor is unknown and not readily identifiable. . Several courts have held in automobile accident cases involving federal employees that the strict two-year statute of limitations should not bar claims in federal courts when a state court action or an administrative claim was initiated before the two-year period expired, thereby giving the government notice of such a claim within the limitations period. See e.g., McGowan v. Williams, 623 F.2d 1239 (7th Cir.1980); Cham-bly v. Lindy, 601 F.Supp. 959 (N.D.Ind.1985); Harris v. Burris Chemical, 490 F.Supp. 968 (N.D. Ga.1980). Such exceptions are not universally recognized in the federal courts. Moreover, an exception of this nature would not apply in this case since the plaintiffs did not initiate their first action until more than two years after the death of Mr. Gould. . In oral argument, plaintiffs’ counsel excused plaintiffs’ failure to exercise due diligence prior to August 1983 by suggesting that Mrs. Gould was reluctant to relive this tragic episode through litigation, and it was not until the Spring or Summer of 1983 that Mrs. Gould felt sufficiently fortified to press forward with her claim. While one is sympathetic to her plight, this is not a legally recognized justification for sleeping on one’s claim. As the court acknowledged in Sexton v. United States, 832 F.2d 629, 636 (D.C.Cir.1987): [A]ny statute of limitations that puts inquiry burdens on a plaintiff, as this one clearly does, see Kubrick, 444 U.S. at 123 & n. 10, 100 S.Ct. at 360 n. 10, entails a degree of ghoulish behavior. Patients or survivors, whose instinct may well be to shut off from their minds the grim experience through which they have passed, are required instead to follow up on their leads. For persons of any sensitivity this must be a difficult or even repugnant process. Yet, to protect defendants from stale claims, legislatures put potential plaintiffs to the hard choice of proceeding with such inquiries or risking loss of possible claims. Question: What is the specific issue in the case within the general category of "economic activity and regulation - torts"? A. motor vehicle B. airplane C. product liability D. federal employer liability; injuries to dockworkers and longshoremen E. other government tort liability F. workers compensation G. medical malpractice H. other personal injury I. fraud J. other property damage K. other torts Answer:
sc_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. HOLMES v. SOUTH CAROLINA No. 04-1327. Argued February 22, 2006 Decided May 1, 2006 John H. Blume argued the cause for petitioner. With him on the briefs were William A. Norris, Edward P. Lazarus, Michael C. Small, Mark J. MacDougall, Jeffrey P. Kehne, and Sheri L. Johnson. Donald J. Zelenka, Assistant Deputy Attorney General of South Carolina, argued the cause for respondent. With him on the brief were Henry D. McMaster, Attorney General, and John W. McIntosh, Chief Deputy Attorney General. Steffen N. Johnson argued the cause for the State of Kansas et al. as amici curiae urging affirmance. With him on the brief were Phill Kline, Attorney General of Kansas, Jared Maag, Deputy Attorney General, and Gene C. Schaerr, and the Attorneys General for their respective States as follows: Troy King of Alabama, Terry Goddard of Arizona, Mike Beebe of Arkansas, John W. Suthers of Colorado, Carl C. Danberg of Delaware, Mark J. Bennett of Hawaii, Lawrence Wasden of Idaho, Gregory D. Stumbo of Kentucky, Michael A. Cox of Michigan, Jim Hood of Mississippi, Jeremiah W. (Jay) Nixon of Missouri, George J. Chanos of Nevada, W. A. Drew Edmondson of Oklahoma, Hardy Myers of Oregon, Thomas W. Corbett, Jr., of Pennsylvania, Lawrence E. Long of South Dakota, and Greg Abbott of Texas. Briefs of amici curiae urging reversal were filed for Forty Professors of Evidence Law by Samuel R. Gross; and for the National Association of Criminal Defense Lawyers by Jeffrey T. Green and Richard E. Young. Elaine Metlin and Ann-Marie Luciano filed a brief of amicus curiae for the Innocence Project, Inc. Justice Alito delivered the opinion of the Court. This case presents the question whether a criminal defendant’s federal constitutional rights are violated by an evidence rule under which the defendant may not introduce proof of third-party guilt if the prosecution has introduced forensic evidence that, if believed, strongly supports a guilty verdict. I On the morning of December 3Í, 1989, 86-year-old Mary Stewart was beaten, raped, and robbed in her home. She later died of complications stemming from her injuries. Petitioner was convicted by a South Carolina jury of murder, first-degree criminal sexual conduct, first-degree burglary, and robbery, and he was sentenced to death. State v. Holmes, 320 S. C. 259, 262, 464 S. E. 2d 334, 336 (1995). The South Carolina Supreme Court affirmed his convictions and sentence, and this Court denied certiorari. Ibid., cert. denied, 517 U. S. 1248 (1996). Upon state postconviction review, however, petitioner was granted a new trial. 361 S. C. 333, 335, n. 1, 605 S. E. 2d 19, 20, n. 1 (2004). At the second trial, the prosecution relied heavily on the following forensic evidence: “(1) [Petitioner’s] palm print was found just above the door knob on the interior side of the front door of the victim’s house; (2) fibers consistent with a black sweatshirt owned by [petitioner] were found on the victim’s bed sheets; (3) matching blue fibers were found on the victim’s pink nightgown and on [petitioner’s] blue jeans; (4) microscopically consistent fibers were found on the pink nightgown and on [petitioner’s] underwear; (5) [petitioner’s] underwear contained a mixture of DNA from two individuals, and 99.99% of the population other than [petitioner] and the victim were excluded as contributors to that mixture; and (6) [petitioner’s] tank top was found to contain a mixture of [petitioner’s] blood and the victim’s blood.” Id., at 343, 605 S. E. 2d, at 24. In addition, the prosecution introduced evidence that petitioner had been seen near Stewart’s home within an hour of the time when, according to the prosecution’s evidence, the attack took place. Id., at 337-338, 343, 605 S. E. 2d, at 21, 24. As a major part of his defense, petitioner attempted to undermine the State’s forensic evidence by suggesting that it had been contaminated and that certain law enforcement officers had engaged in a plot to frame him. Id., at 339, 605 S. E. 2d, at 22. Petitioner’s expert witnesses criticized the procedures used by the police in handling the fiber and DNA evidence and in collecting the fingerprint evidence. App. 299-311, 313-323. Another defense expert provided testimony that petitioner cited as supporting his claim that the palm print had been planted by the police. Id., at 326-327. Petitioner also sought to introduce proof that another man, Jimmy McCaw White, had attacked Stewart. 361 S. C., at 340, 605 S. E. 2d, at 22. At .a pretrial hearing, petitioner proffered several witnesses who placed White in the victim’s neighborhood on the morning of the assault, as well as four other witnesses who testified that White had either acknowledged that petitioner was “‘innocent’” or had actually admitted to committing the crimes. Id., at 340-342, 605 S. E. 2d, at 22-23. One witness recounted that when he asked White about the “word ... on the street” that White was responsible for Stewart’s murder, White “put his head down and he raised his head back up and he said, well, you know I like older women.” App. 119. According to this witness, White added that “he did what they say he did” and that he had “no regrets about it at all.” Id., at 120. Another witness, who had been incarcerated with White, testified that White had admitted to assaulting Stewart, that a police officer had asked the witness to testify falsely against petitioner, and that employees of the prosecutor’s office, while soliciting the witness’ cooperation, had spoken of manufacturing evidence against petitioner. Id., at 38-50. White testified at the pretrial hearing and denied making the incriminating statements. 361 S. C., at 341-342, 605 S. E. 2d, at 23. He also provided an alibi for the time of the crime, but another witness refuted his alibi. Id., at 342, 605 S. E. 2d, at 23. The trial court excluded petitioner’s third-party guilt evidence citing State v. Gregory, 198 S. C. 98, 16 S. E. 2d 532 (1941), which held that such evidence is admissible if it “‘raise[s] a reasonable inference or presumption as to [the defendant’s] own innocence’” but is not admissible if it merely “ ‘cast[s] a bare suspicion upon another’ ” or “ ‘raise[s] a conjectural inference as to the commission of the crime by another.’ ” App. 133-134 (quoting Gregory, supra, at 104, 16 S. E. 2d, at 534). On appeal, the South Carolina Supreme Court found no error in the exclusion of petitioner’s third-party guilt evidence. Citing both Gregory and its later decision in State v. Gay, 343 S. C. 543, 541 S. E. 2d 541 (2001), the State Supreme Court held that “where there is strong evidence of an appellant’s guilt, especially where there is strong forensic evidence, the proffered evidence about a third party’s alleged guilt does not raise a reasonable inference as to the appellant’s own innocence.” 361 S. C., at 342-343, 605 S. E. 2d, at 24. Applying this standard, the court held that petitioner could not “overcome the forensic evidence against him to raise a reasonable inference of his own innocence.” Id., at 343, 605 S. E. 2d, at 24. We granted certiorari. 545 U. S. 1164 (2005). II “[Sjtate and federal rulemakers have broad latitude under the Constitution to establish rules excluding evidence from criminal trials.” United States v. Scheffer, 523 U. S. 303, 308 (1998); see also Crane v. Kentucky, 476 U. S. 683, 689-690 (1986); Marshall v. Lonberger, 459 U. S. 422, 438, n. 6 (1983); Chambers v. Mississippi, 410 U. S. 284, 302-303 (1973); Spencer v. Texas, 385 U. S. 554, 564 (1967). This latitude, however, has limits. “Whether rooted directly in the Due Process Clause of the Fourteenth Amendment or in the Compulsory Process or Confrontation Clauses of the Sixth Amendment, the Constitution guarantees criminal defendants ‘a meaningful opportunity to present a complete defense.’ ” Crane, supra, at 690 (quoting California v. Trombetta, 467 U. S. 479, 485 (1984); citations omitted). This right is abridged by evidence rules that “infring[e] upon a weighty interest of the accused” and are “ ‘arbitrary’ or ‘disproportionate to the purposes they are designed to serve.’” Scheffer, supra, at 308 (quoting Rock v. Arkansas, 483 U. S. 44, 58, 56 (1987)). This Court’s cases contain several illustrations of “arbitrary” rules, i. e., rules that excluded important defense evidence but that did not serve any legitimate interests. In Washington v. Texas, 388 U. S. 14 (1967), state statutes barred a person who had been charged as a participant in a crime from testifying in defense of another alleged participant unless the witness had been acquitted. As a result, when the defendant in Washington was tried for murder, he was precluded from calling as a witness a person who had been charged and previously convicted of committing the same murder. Holding that the defendant’s right to put on a defense had been violated, we noted that the rule embodied in the statutes could not “even be defended on the ground that it rationally sets apart a group of persons who are particularly likely to commit perjury” since the rule allowed an alleged participant to testify if he or she had been acquitted or was called by the prosecution. Id., at 22-23. A similar constitutional violation occurred in Chambers v. Mississippi, supra. A murder defendant called as a witness a man named McDonald, who had previously confessed to the murder. When McDonald repudiated the confession on the stand, the defendant was denied permission to examine McDonald as an adverse witness based on the State’s “ ‘voucher’ rule,” which barred parties from impeaching their own witnesses. Id., at 294. In addition, because the state hearsay rule did not include an exception for statements against penal interest, the defendant was not permitted to introduce evidence that McDonald had made self-incriminating statements to three other persons. Noting that the State had not even attempted to “defend” or “explain [the] underlying rationale” of the “voucher rule,” id., at 297, this Court held that “the exclusion of [the evidence of McDonald’s out-of-court statements], coupled with the State’s refusal to permit [the defendant] to cross-examine McDonald, denied him a trial in accord with traditional and fundamental standards of due process,” id., at 302. Another arbitrary rule was held unconstitutional in Crane v. Kentucky, supra. There, the defendant was prevented from attempting to show at trial that his confession was unreliable because of the circumstances under which it was obtained, and neither the State Supreme Court nor the prosecution “advanced any rational justification for the wholesale exclusion of this body of potentially exculpatory evidence.” Id., at 691. In Rock v. Arkansas, supra, this Court held that a rule prohibiting hypnotically refreshed testimony was unconstitutional because “[wjholesale inadmissibility of a defendant’s testimony is an arbitrary restriction on the right to testify in the absence of clear evidence by the State repudiating the validity of all post-hypnosis recollections.” Id., at 61. By contrast, in Scheffer, supra, we held that a rule excluding all polygraph evidence did not abridge the right to present a defense because the rule “serve[d] several legitimate interests in the criminal trial process,” was “neither arbitrary nor disproportionate in promoting these ends,” and did not “implicate a sufficiently weighty interest of the defendant.” Id., at 309. While the Constitution thus prohibits the exclusion of defense evidence under rules that serve no legitimate purpose or that are disproportionate to the ends that they are asserted to promote, well-established rules of evidence permit trial judges to exclude evidence if its probative value is outweighed by certain other factors such as unfair prejudice, confusion of the issues, or potential to mislead the jury. See, e. g., Fed. Rule Evid. 403; Uniform Rule of Evid. 45 (1953); ALI, Model Code of Evidence Rule 303 (1942); 3 J. Wigmore, Evidence §§ 1863, 1904 (1904). Plainly referring to rules of this type, we have stated that the Constitution permits judges “to exclude evidence that is ‘repetitive ..., only marginally relevant’ or poses an undue risk of ‘harassment, prejudice, [or] confusion of the issues.’” Crane, 476 U. S., at 689-690 (quoting Delaware v. Van Arsdall, 475 U. S. 673, 679 (1986); ellipsis and brackets in original). See also Montana v. Egelhoff, 518 U. S. 37, 42 (1996) (plurality opinion) (terming such rules “familiar and unquestionably constitutional”). A specific application of this principle is found in rules regulating the admission of evidence proffered by criminal defendants to show that someone else committed the crime with which they are charged. See, e. g., 41 C. J. S., Homicide §216, pp. 56-58 (1991) (“Evidence tending to show the commission by another person of the crime charged may be introduced by accused when it is inconsistent with, and raises a reasonable doubt of, his own guilt; but frequently matters offered in evidence for this purpose are so remote and lack such connection with the crime that they are excluded”); 40A Am. Jur. 2d, Homicide §286, pp. 136-138 (1999) (“[T]he accused may introduce any legal evidence tending to prove that another person may have committed the crime with which the defendant is charged .... [Such evidence] may be excluded where it does not sufficiently connect the other person to the crime, as, for example, where the evidence is speculative or remote, or does not tend to prove or disprove a material fact in issue at the defendant’s trial” (footnotes omitted)). Such rules are widely accepted, and neither petitioner nor his amici challenge them here. In Gregory, the South Carolina Supreme Court adopted and applied a rule apparently intended to be of this type, given the court’s references to the “applicable rule” from Corpus Juris and American Jurisprudence: “ ‘[Ejvidence offered by accused as to the commission of the crime by another person must be limited to such facts as are inconsistent with his own guilt, and to such facts as raise a reasonable inference or presumption as to his own innocence; evidence which can have (no) other effect than to cast a bare suspicion upon another, or to raise a conjectural inference as to the commission of the crime by another, is not admissible. . . . [Bjefore such testimony can be received, there must be such proof of connection with it, such a train of facts or circumstances, as tends clearly to point out such other person as the guilty party.’” 198 S. C., at 104-105, 16 S. E. 2d, at 534-535 (quoting 16 C. J., Criminal Law §1085, p. 560 (1918), and 20 Am. Jur., Evidence §265, p. 254 (1939); footnotes omitted). In Gay and this case, however, the South Carolina Supreme Court radically changed and extended the rule. In Gay, after recognizing the standard applied in Gregory, the court stated that “[i]n view of the strong evidence of appellant’s guilt — especially the forensic evidence— . . . the proffered evidence ... did not raise ‘a reasonable inference’ as to appellant’s own innocence.” 343 S. C., at 550, 541 S. E. 2d, at 545 (quoting Gregory, supra, at 104, 16 S. E. 2d, at 534, in turn quoting 16 C. J., § 1085, at 560). Similarly, in the present case, as noted, the State Supreme Court applied the rule that “where there is strong evidence of [a defendant’s] guilt, especially where there is strong forensic evidence, the proffered evidence about a third party’s alleged guilt” may (or perhaps must) be excluded. 361 S. C., at 342, 605 S. E. 2d, at 24. Under this rule, the trial judge does not focus on the probative value or the potential adverse effects of admitting the defense evidence of third-party guilt. Instead, the critical inquiry concerns the strength of the prosecution’s case: If the prosecution’s case is strong enough, the evidence of third-party guilt is excluded even if that evidence, if viewed independently, would have great probative value and even if it would not pose an undue risk of harassment, prejudice, or confusion of the issues. Furthermore, as applied in this case, the South Carolina Supreme Court’s rule seems to call for little, if any, examination of the credibility of the prosecution’s witnesses or the reliability of its evidence. Here, for example, the defense strenuously claimed that the prosecution’s forensic evidence was so unreliable (due to mishandling and a deliberate plot to frame petitioner) that the evidence should not have even been admitted. The South Carolina Supreme Court responded that these challenges did not entirely “eviscerate” the forensic evidence and that the defense challenges went to the weight and not to the admissibility of that evidence. Id., at 343, n. 8, 605 S. E. 2d, at 24, n. 8. Yet, in evaluating the prosecution’s forensic evidence and deeming it to be “strong” — and thereby justifying exclusion of petitioner’s third-party guilt evidence — the South Carolina Supreme Court made no mention of the defense challenges to the prosecution’s evidence. Interpreted in this way, the rule applied by the State Supreme Court does not rationally serve the end that the Gregory rule and its analogues in other jurisdictions were designed to promote, i. e., to focus the trial on the central issues by excluding evidence that has only a very weak logical connection to the central issues. The rule applied in this case appears to be based on the following logic: Where (1) it is clear that only one person was involved in the commission of a particular crime and (2) there is strong evidence that the defendant was the perpetrator, it follows that evidence of third-party guilt must be weak. But this logic depends on an accurate evaluation of the prosecution’s proof, and the true strength of the prosecution’s proof cannot be assessed without considering challenges to the reliability of the prosecution’s evidence. Just because the prosecution’s evidence, if credited, would provide strong support for a guilty verdict, it does not follow that evidence of third-party guilt has only a weak logical connection to the central issues in the case. And where the credibility of the prosecution’s witnesses or the reliability of its evidence is not conceded, the strength of the prosecution’s case cannot be assessed without making the sort of factual findings that have traditionally been reserved for the trier of fact and that the South Carolina courts did not purport to make in this case. The rule applied in this case is no more logical than its converse would be, i. e., a rule barring the prosecution from introducing evidence of a defendant’s guilt if the defendant is able to proffer, at a pretrial hearing, evidence that, if believed, strongly supports a verdict of not guilty. In the present case, for example, petitioner proffered evidence that, if believed, squarely proved that White, not petitioner, was the perpetrator. It would make no sense, however, to hold that this proffer precluded the prosecution from introducing its evidence, including the forensic evidence that, if credited, provided strong proof of petitioner’s guilt. The point is that, by evaluating the strength of only one party’s evidence, no logical conclusion can be reached regarding the strength of contrary evidence offered by the other side to rebut or cast doubt. Because the rule applied by the State Supreme Court in this case did not heed this point, the rule is “arbitrary” in the sense that it does not rationally serve the end that the Gregory rule and other similar third-party guilt rules were designed to further. Nor has the State identified any other legitimate end that the rule serves. It follows that the rule applied in this case by the State Supreme Court violates a criminal defendant’s right to have ‘“a meaningful opportunity to present a complete defense.’” Crane, 476 U. S., at 690 (quoting Trombetta, 467 U. S., at 485). Ill For these reasons, we vacate the judgment of the South Carolina Supreme Court and remand the case for further proceedings not inconsistent with this opinion. It is so ordered. See, e. g., Smithart v. State, 988 P. 2d 583, 586-587 (Alaska 1999); Shields v. State, 357 Ark. 283, 287-288, 166 S. W. 3d 28, 32 (2004); People v. Hall, 41 Cal. 3d 826, 833, 718 P. 2d 99, 103-104 (1986) (en banc); People v. Mulligan, 193 Colo. 509, 517-518, 568 P. 2d 449, 456-457 (1977) (en banc); State v. West, 274 Conn. 605, 624-627, 877 A. 2d 787, 802-803 (2005); Winfield v. United States, 676 A. 2d 1 (D. C. 1996) (en bane); Klinect v. State, 269 Ga. 570, 573, 501 S. E. 2d 810, 813-814 (1998); State v. Rabellizsa, 79 Haw. 347, 350-351, 903 P. 2d 43, 46-47 (1995); People v. Fort, 248 Ill. App. 3d 301, 314, 618 N. E. 2d 445, 455 (1993); State v. Adams, 280 Kan. 494, 504-507, 124 P. 3d 19, 27-29 (2005); Beaty v. Commonwealth, 125 S. W. 3d 196, 207-208 (Ky. 2003); State v. Dechaine, 572 A. 2d 130, 134 (Me. 1990); Commonwealth v. Scott, 408 Mass. 811, 815-816, 564 N. E. 2d 370, 374-375 (1990); State v. Jones, 678 N. W. 2d 1, 16-17 (Minn. 2004) (en banc); Moore v. State, 179 Miss. 268, 274-275, 175 So. 183, 184 (1937); State v. Chaney, 967 S. W. 2d 47, 55 (Mo. 1998) (en banc); State v. Cotto, 182 N. J. 316, 332-333, 865 A. 2d 660, 669-670 (2005); Gore v. State, 2005 OK CR 14, ¶¶ 13-24, 119 P. 3d 1268, 1272-1276; State v. Gregory, 198 S. C. 98, 104-105, 16 S. E. 2d 532, 534-535 (1941); Wiley v. State, 74 S. W. 3d 399, 405-408 (Tex. Crim. App. 2002); State v. Grega, 168 Vt. 363, 375, 721 A. 2d 445, 454 (1998); State v. Thomas, 150 Wash. 2d 821, 856-858, 83 P. 3d 970, 988 (2004) (en banc); State v. Parr, 207 W. Va. 469, 475, 534 S. E. 2d 23, 29 (2000) (per curiam); State v. Denny, 120 Wis. 2d 614, 622-625, 357 N. W. 2d 12, 16-17 (App. 1984). Question: What is the ideological direction of the decision? A. Conservative B. Liberal C. Unspecifiable Answer:
songer_respond2_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 second 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". In the Matter of FLORA MIR CANDY CORPORATION et al., Debtors. FLORA MIR CANDY CORPORATION et al., Debtors-Appellants, v. R. S. RICKSON & Co. et al., creditors of Meadors, Inc., Appellees. No. 59, Socket 34713. United States Court of Appeals, Second Circuit. Argued Sept. 28, 1970. Decided Oct. 28, 1970. Michael J. Crames, New York City (Levin & Weintraub and Harris Levin, New York City, of counsel), for debtors-appellants. David L. Freeman, Greenville, S. C. (Wyche, Burgess, Freeman & Parham, P.A., Greenville, S. C., of counsel), for appellees. Before DANAHER FRIENDLY and HAYS, Circuit Judges. Senior Circuit Judge of the District of Columbia, sitting by designation. FRIENDLY, Circuit Judge: Meadors, Inc., was organized late in 1961 to manufacture and sell candy in Greenville, S. C. In addition to stock, it issued $330,000 of 7% convertible subordinated debentures. In 1963 the stockholders sold all their shares to United Biscuit Company of America, later Keebler Company. The debenture holders gave up their conversion privilege as part of the transaction. Meadors’ sales force was dismantled, and its output was sold under the Keebler label. In February 1968 Keebler entered into an agreement to sell the stock of Meadors to Atlantic Services, Inc. According to a complaint filed by the Meadors debenture holders in the District Court for South Carolina in November 1968, Atlantic helped itself to $235,000 of Meadors’ funds to pay Keebler. Allegedly Keebler was a party to this fraud and worked to conceal it from Meadors’ creditors by contracting to buy candy and thus keep Meadors afloat, which it did until August 20,1968. In June 1968 Atlantic sold the Meadors stock to Flora Mir Distributing Co., Inc., a dummy subsidiary of Flora Mir Candy Corporation. Allegedly Atlantic went through the form of paying into an account opened for Meadors at the Royal National Bank in New York the $276,-800 it had taken from Meadors to finance the purchase from Keebler, but Flora Mir refunded this immediately on the stock being transferred; the balance of the purchase price was paid to Atlantic by Flora Mir upon collection of Meadors’ accounts receivable. Flora Mir then arranged to terminate Meadors’ small remaining operations and was removing its property from South Carolina to Dunn, N. C., where other Flora Mir subsidiaries operated, until this process was halted by an attachment for unpaid rent by Meadors’ landlord in Greenville. All operations of Meadors ended on November 15, 1968. As indicated, the holders of the Meadors debentures brought an action in November 1968 in the District Court for South Carolina for damages and injunctive relief against Keebler, Atlantic Services, the two Flora Mir companies, and Meadors, Inc. Judge Russell entered an order restraining Meadors from removing any of its property from South Carolina during the action’s pendency. On May 12, 1969, Flora Mir, Flora Mir Distributing Company, Meadors, Inc. and ten wholly owned subsidiaries of Flora Mir, which that company had picked up in the course of an acquisition program, filed petitions under Chapter XI of the Bankruptcy Act in the District Court for the Southern District of New York. While it might have been thought that by this time the cup of the unfortunate Meadors debenture holders was full, that proved not to be so. On the very same day the debtors moved for an order consolidating the proceedings of the thirteen debtors, pooling their assets and liabilities, disallowing intercompany claims, and treating claims filed against any of the debtors as having been filed in the consolidated proceeding. A hearing was held before the referee at which an accountant and the secretary of Flora Mir and all its subsidiaries testified with regard to the multitude of intercompany transactions, many without apparent business purpose, and the difficulty of disentangling them. Very little of this evidence bore on Meadors, Inc. The accountant principally relied on the period from December 31, 1968 through May 11, 1969, when Meadors was largely defunct. There was also testimony that the trade had considered all the debtors as a group, but this again had little to do with Meadors which had transacted little business after its acquisition by Flora Mir in June 1968 and none since November of that year. The Meadors debenture holders vigorously opposed consolidation. However, the referee signed, without any material change, findings of fact and conclusions of law submitted by the attorneys for the debtors and entered an order directing that the proceedings and the assets and liabilities of the debtors should be consolidated and that intercompany claims should be disallowed upon the Confirmation of an arrangement. The first ray of light for the Meadors debenture holders in many years was shed when their petition to review this order came before a district judge possessed of robust common sense. On examining the evidence Judge Murphy found it to be “grossly insufficient to prompt a court of equity” to consolidate Meadors with the other debtors. Accordingly he set aside the order insofar as it concerned Meadors, Inc. The decision was so manifestly correct that we should hardly have written an opinion were it not to make it plain that referees should not order consolidation on so flimsy a basis as was done here. While the term has a disarmingly innocent sound, consolidation in bankruptcy, in the form directed in this case, is no mere instrument of procedural convenience, such as consolidation of actions under F.R.Civ.P. 42(a), but a measure vitally affecting substantive rights. The Supreme Court has told us time and again that “courts of bankruptcy are essentially courts of equity, and their proceedings inherently proceedings in equity,” Local Loan Co. v. Hunt, 292 U.S. 234, 240, 54 S.Ct. 695, 697, 78 L.Ed. 1230 (1934). The inequity of consolidation could scarcely be clearer than in this case. The debentures had been issued when Meadors was an independent company, more than six years before its acquisition by Flora Mir. Yet we have stated that even when the interrelationship already existed at the time credit was extended, “The power to consolidate should be used sparingly because of the possibility of unfair treatment of creditors of a corporate debtor who have dealt solely with that debtor without knowledge of its interrelationship with others,” Chemical Bank New York Trust Co. v. Kheel, 369 F.2d 845, 847 (1966). Here there was a near certainty of unfair treatment. Consolidation not only would wipe out Meadors’ claim against Flora Mir for the misappropriation of its assets but also would permit the creditors of Flora Mir and the other corporations to share in any recovery in the South Carolina action against Keebler and Atlantic Services for transactions antedating Meadors’ joining the Flora Mir group — transactions in which these creditors had not the slightest legitimate interest. We doubt that any showing of accounting difficulties would warrant consolidation under such circumstances, at least if the Meadors creditors were willing to confine themselves to assets that were obviously theirs. But here there was no evidence, such as in the Chemical Bank ease cited, that “the interrelationships of the group are hopelessly obscured and the time and expense necessary even to attempt to unscramble them so substantial as to threaten the realization of any net assets for all the creditors, * * * ” 369 F.2d at 847. To the contrary, the accountants in relatively short order had managed to come up with financial statements of each of the debtors. Whatever problems there might be with respect to intercompany accounts among other debtors, those with respect to Meadors were few, for the reasons stated. The grounds urged for reversing Judge Murphy’s well-considered order are wholly unpersuasive. Counsel tells us that the proposed arrangement would relieve the Meadors debenture holders of their subordinated status and that they would be better off as general creditors of the consolidated group than as subordinated creditors of Meadors. They do not think so. Counsel is also concerned whether Meadors’ general creditors may not suffer if consolidation is denied. None have shown sufficient interest to make themselves heard. Reference was made to an agreement with a factor whereby assets of various companies, including Meadors, were pledged to guarantee loans extended to any one, but this is hardly a problem beyond the capacity of a bankruptcy court to resolve. The nub of counsel’s argument was that only consolidation will permit the quick consummation of an arrangement under Chapter XI. That may indeed be desirable but not at the cost of sacrificing the rights of Meadors’ debenture holders. The latter stand entirely differently from trade creditors of companies long in the Flora Mir group, who may be content to take what they can for past debts in the hope of advantageous relations in the future. Moreover, there is nothing to suggest that, if such creditors, instead of attempting to profit from a quick consolidation, had sat down with the Meadors’ debenture holders in an effort to develop an equitable plan whereby Meadors’ creditors would retain the assets particularly pertinent to them, with a reasonable adjustment in their other rights, the debenture holders would have turned a deaf ear. In any event, the South Carolina action is scheduled for early trial, and a resolution there will do much to clear the air. In addition to seeking consolidation, the debtor moved in July 1969 that the referee direct the turnover to it of the assets of Meadors at its Greenville, S.C. plant whose removal from the state had been enjoined by the South Carolina district court in the debenture holders’ suit. After a hearing, the referee made an endorsement stating that, despite his jurisdiction over the South Carolina property, which no one contested, “this is not at one with vacating a stay granted by a District Judge to maintain the status quo,” especially since application could be made to Judge Russell to vacate the stay. On a petition by the debtors to review this denial of a turnover, Judge Murphy affirmed. So do we. The debtors’ main argument, that it would be nice to have Meadors’ South Carolina machinery moved to North Carolina for use in the operations of the other companies, is destroyed by our decision with respect to consolidation. Beyond that, the referee surely did not abuse his discretion in refusing to set at naught an order of a district judge antedating the filing of the Chapter XI proceedings. Affirmed on both appeals. . Debtors-appellants refer to three cheeks “as illustrations of the countless intercompany transfers and transactions items specifically relative to Meadors, Inc.” These turn out to be a $100 check from Meadors to Wellons Candy Co., a $100 check from Borah Nut Co. to Meadors, and a $900 check from Meadors to Borah Nut Co. Reference is made also to a schedule indicating that Meadors “has made advances to seven of the other debtors aggregating $433,054.92 and has been advanced by three of the other debtors sums aggregating $96,896.18.” The brief neglects to point out that the most sizeable item was $331,950.00 “advanced” to Flora Mir Distributing Co., apparently to enable the latter to purchase Meadors’ stock from Atlantic Services. . We have frequently noted our disapproval of this practice except, as recently stated by the First Circuit in In re Las Colinas, Inc., 426 F.2d 1005, 1009 (1970), “where the subject matter is of a highly technical nature requiring expertise which the court does not possess,” United States v. Forness, 125 F.2d 928, 942 (2 Cir.), cert. denied, 316 U.S. 694, 62 S.Ct. 1293, 86 L.Ed. 1764 (1942) ; City of New York v. McLain Lines, Inc., 147 F.2d 393, 395 (2 Cir. 1945) ; Rooted Hair, Inc. v. Ideal Toy Corp., 329 F.2d 761, 769, cert. denied, 379 U.S. 831, 85 S.Ct. 63, 13 L.Ed.2d 40 (1964) (concurring opinion of Medina, J.). See also United States v. El Paso Natural Gas Co., 376 U.S. 651, 656-657, 84 S.Ct. 1044, 12 L.Ed.2d 12 (1964) ; 2B Barron & Holtzoff, Federal Practice & Procedure (Wright ed. 1961), § 1124. . The judge noted that the accountant was unable to state he had encountered any difficulty in separating the Meadors transactions from those of Flora Mir and its other subsidiaries. He had not worked on Meadors’ books for the period prior to January 1, 1969, and an unidentified voice in the courtroom said that some previous accountant had worked up the figures for the previous period. . The accountant’s report does note that “No segregation for raw materials could be made as between [three other Flora Mir subsidiaries] and Meadors, Inc. as all operate out of the Dunn plant.” Since all these raw materials appear to have been pledged, this was not highly consequential. Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business? A. local B. neither local nor national C. national or multi-national D. not ascertained Answer:
sc_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. BESSER MANUFACTURING CO. et al. v. UNITED STATES. No. 230. Argued April 21, 1952. Decided May 26, 1952. Carl R. Henry argued the cause for appellants. With him on the brief were William 3. Donovan, Roy W. McDonald, John W. Babcock and Peyton H. Moss. Marcus A. Hollabaugh argued the cause for the United States. With him on the brief were Solicitor General Perlman, Assistant Attorney General Morison, James L. Morrisson, Charles H. Weston and Wharey M. Freeze. Mr. Justice Jackson delivered the opinion of the Court. The United States brought this civil action under § 4 of the Sherman Act charging appellants and others with conspiring to restrain and monopolize interstate commerce in concrete block-making machinery in violation of §§ 1 and 2 of the Act, and charging appellants with monopolizing and attempting to monopolize the same industry in violation of § 2 of the Act. The defendants below were the Stearns Manufacturing Company, second largest producer in the country of concrete block-making machines, Besser Manufacturing Company, the country’s dominant producer of such machinery and substantial stockholder in the Stearns Company, Jesse H. Besser, long-time president and virtually sole stockholder of the Besser Company, and two individuals, Gelbman and Andrus, co-owners of certain important patents in the concrete block-making machine field. The United States District Court for the Eastern District of Michigan found the Government’s charges clearly proved, and entered a judgment intended to correct the Sherman Act violations found to exist. Only the Besser Company and Jesse H. Besser have appealed, bringing their case here directly. Appellants assert that the factual conclusions of the trial court are erroneous. Only recently we reiterated the narrow scope of review here with respect to issues of fact in antitrust cases. United States v. Oregon State Medical Society, 343 U. S. 326. In this case we think it enough to say that the conclusions of the trial judge that appellants conspired to restrain and monopolize interstate commerce in concrete block-making machinery and that they monopolized and attempted to monopolize that industry are overwhelmingly supported by the evidence. Not the slightest ground appears for concluding that the trial judge’s findings were “clearly erroneous.” Rule 52 (a), Fed. Rules Civ. Proc. We turn now to the provisions of the judgment entered below which are attacked by appellants. It is unnecessary for us to review appellants’ activities in detail, for they are adequately set out in the opinion below. Suffice it to say that appellants sought to eliminate competition through outright purchase of competitors and strict patent-licensing arrangements with the Stearns Company and the patent owners, Gelbman and Andrus. Appellants contend that the provisions of the judgment requiring them to issue patent licenses on a fair royalty basis and requiring them to grant to existing lessees of their machines an option, on terms “mutually satisfactory to the parties concerned,” (1) to terminate their lease, (2) to continue their lease, or (3) to purchase leased machines, are punitive, confiscatory and inappropriate. However, compulsory patent licensing is a well-recognized remedy where patent abuses are proved in antitrust actions and it is required for effective relief. Hartford-Empire Co. v. United States, 323 U. S. 386, 413, 417-418; United States v. National Lead Co., 332 U. S. 319, 338; United States v. United States Gypsum Co., 340 U. S. 76, 94. The compulsory sale provision of the judgment, strenuously attacked, is likewise a recognized remedy. International Salt Co. v. United States, 332 U. S. 392, 398-399. That required by the judgment in this case must be considered in conjunction with the alternatives associated with it. Appellants are left free to lease rather than sell if they can make a lease sufficiently attractive. Appellants further argue that the method adopted by the court below for fixing reasonable royalty rates under their patent licenses deprives them of their property without due process of law. The court directed Besser and the Government each to select two persons to serve as arbitrators on a committee to establish fair royalty rates and the form and contents of royalty contracts. It was also provided that in the event of a stalemate the four representatives should choose a fifth to vote and break the deadlock. If they could not agree on a fifth representative, the trial judge was to sit as the fifth or appoint another person to serve in his place. After some delay, and under protest, Besser appointed his representatives, the Government having appointed its shortly after the plan had been promulgated by the court. The representatives selected by the Government were taken from the industry, the Government noting to the court that they were serving on their own behalf and as agents of other prospective licensees, and not as agents of the Department of Justice. When an impasse was reached with regard to royalty rates on certain Besser patents, the judge stepped in as the fifth arbitrator and voted for the rates proposed by the government-appointed representatives. Appellants assail this procedure with the contention that royalties set must be “made in judicial proceedings based on the hearing and evaluation of evidence in the light of appropriate criteria.’' Appellants’ argument fails on two counts. First, it necessarily attacks the sufficiency of the evidentiary material considered in arriving at the royalties finally established. We do not pass on matters of that character in the absence of glaring error not shown here. Secondly, appellants appear to have misunderstood the true nature of what was done, for it was always within the power of the trial judge to establish the royalty rates, and, in voting as he did, he did just that. They contend that the judge should either have held a full hearing himself or referred the royalty matters to a master for such a hearing. We do not, however, think that in reducing the terms of a decree to concrete measures such procedures are mandatory. It is true that the procedure adopted below is an innovation in certain aspects, but novelty is not synonymous with error. In framing relief in antitrust cases, a range of discretion rests with the trial judge. United States v. National Lead Co., supra, at 338; International Salt Co. v. United States, supra, at 400-401, 405; United States v. Crescent Amusement Co., 323 U. S. 173, 185. We can see no abuse of discretion here. Compulsory licensing and sale of patented devices are recognized remedies. They would seem particularly appropriate where, as here, a penchant for abuses of patent rights is demonstrated. With respect to the procedure for establishing royalty rates, the court below was likewise acting within the discretion vested in it. “[The District Court] should provide for its determination of a reasonable royalty either in each instance of failure to agree or by an approved form or by any other plan in its discretion.” (Italics added.) United States v. United States Gypsum Co., supra, at 94. The procedure here was entirely reasonable and fair. A competent committee considered relevant evidence and the judge, on the basis of the evidence adduced before the committee, resolved the deadlock into which the negotiations had fallen. Although not condemning the royalty-setting procedure used here, the Government indicates faint enthusiasm for it, and suggests that this Court consider the procedure outlined by it below and direct that it be utilized hereafter in the proceedings remaining in this litigation. We would exceed our appellate functions were we to adopt that suggestion in this case. “The framing of decrees should take place in the District rather than in Appellate Courts.” International Salt Co. v. United States, supra, at 400; United States v. Crescent Amusement Co., supra, at 185. We have examined appellants’ other contentions and concluded that they are without merit. In accordance with the foregoing, the judgment below is Affirmed. Mr. Justice Clark took no part in the consideration or decision of this case. 26 Stat. 209, as amended, 15 U. S. C. §4: “The several district courts of the United States are invested with jurisdiction to prevent and restrain violations of sections 1-7 of this title; and it shall be the duty of the several district attorneys of the United States, in their respective districts, under the direction of the Attorney General, to institute proceedings in equity to prevent and restrain such violations. . . .” 15 U. S. C. § 1: “Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States ... is declared to be illegal . . . .” 15 U. S. C. §2: “Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States . . . shall be deemed guilty of a misdemeanor . . . .” 96 F. Supp. 304. Pursuant to § 2 of the Expediting Act of 1903, 32 Stat. 823, as amended, 15 U. S. C. § 29. Question: Did administrative action occur in the context of the case? A. No B. Yes Answer:
songer_genresp2
I
What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the second listed respondent. If there are more than two respondents and at least one of the additional respondents has a different general category from the first respondent, then consider the first respondent with a different general category to be the second respondent. MERIT INSURANCE COMPANY, an Illinois Corporation, Plaintiff-Appellant, v. Anthony COLAO et al., Defendants-Appellees. No. 78-1460. United States Court of Appeals, Seventh Circuit. Argued Dec. 7, 1978. Decided Aug. 7, 1979. Rehearing and Rehearing In Banc Denied Nov. 6,1979. Charles J. O’Laughlin, Jenner & Block, Chicago, Ill., for plaintiff-appellant. Thomas J. Weithers, Chicago, Ill., for defendants-appellees. Before SWYGERT, LAY and WOOD, Circuit Judges. The Honorable Donald P. Lay, Circuit Judge of 'the United States Court of Appeals for the Eighth Circuit, is sitting by designation. SWYGERT, Circuit Judge. This diversity suit was started in 1975. The complaint, as amended, contained three counts. Count I alleged negligence; Count II — gross negligence; and Count III— fraud. At the pretrial stage, the district court dismissed the negligence counts for failure to state a claim and proceeded to try the fraud issue to a jury. For four months, November 1,1977 to February 28,1978, the plaintiff presented its case. On March 1, 1978 the trial judge granted motions for directed verdict in favor of all the defendants. From these adverse rulings, plaintiff appeals. I Merit is an Illinois casualty insurance company. It and its predecessor have been engaged in writing automobile liability insurance since 1968. The defendants are being sued individually and also as partners in Joseph Froggatt & Co., an accounting firm located in New Jersey but also operating in Philadelphia and New York City. Two other entities are involved: General Auto Placement, Inc. and Leatherby Insurance Company. General Auto was, before it became bankrupt, a New Jersey corporation selling automobile insurance policies to high risk drivers. It did not issue the policies; rather, it marketed policies that were written by licensed casualty insurance companies. Leonard Lebowitz, ' owner of eighty-five per cent of General Auto’s stock, was president of the company and controlled its operations. Leatherby Insurance Company, a California-based casualty insurance company, started to underwrite policies for General Auto in May 1969. It was replaced by Merit in 1972. The instant dispute centers on General Auto’s financial arrangements with its underwriters. A distinctive feature of these arrangements was that General Auto was paid commissions by the underwriter on a “retrospective” basis. Rather than receiving a flat percentage of the policy premiums as its commission (the ordinary practice), General Auto earned its commission on a fluctuating scale; that is, after a review of its loss experience on the policies it had sold, General Auto received a profit (if any) gauged on the difference between the premiums paid by policyholders and amounts paid on claims. The underwriter received a fixed percentage of the premium as an “underwriting fee." Thus, General Auto functioned in large part as an insurance company without actually being one. It assumed most of the risks even though the underwriters were ultimately liable to the policyholders. In general terms, General Auto’s business was conducted as follows: (1) General Auto agents received a commission of 15-20 percent of the premium collected by them on the policies sold. (2) General Auto would report to the underwriter the policies it had sold and remit the premiums, less the agents’ commissions. (3) General Auto would give notice to the underwriting insurance company of any claims on the policies it had sold along with estimated settlement costs. The underwriter would place on its books the estimated settlement costs as “claim reserves,” awaiting the actual amount of the claims paid. (4) When the claims were settled, General Auto would issue drafts drawn on the underwriter to those entitled to share in the settlement. (5) Every four months, General Auto would be paid by the underwriter a retrospective commission calculated on the basis of its earned premiums. General Auto was paid the total of earned premiums less: (a) the fixed underwriting fees, (b) the loss reserves, and (c) the amounts paid on closed claims. By virtue of this formula the lower the loss reserves were the more General Auto was paid on each quarterly settlement between General Auto and its underwriter. In order to evaluate the financial well being of General Auto at any particular time, it was necessary to look at the “loss ratio” of the total policies it had sold. This ratio could be calculated by comparing the combined amount of reserves and losses paid against the total amount of earned premiums. If General Auto had too high a loss ratio, the premiums would be insufficient to cover the losses on claims filed on the policies and the underwriter would be required to cover the deficiency. To protect itself against such a contingency, the underwriter required a guarantee from General Auto to cover any deficiency in premiums available to pay claims. Thus, so long as General Auto’s loss ratio was low enough or was able to make up any deficiency, the underwriter had a guaranteed profit from its fixed fee. General Auto was formed in 1969 and soon thereafter entered into a retrospective commission contract with Leatherby. The contract provided that General Auto was to be paid by Leatherby the amount of earned premiums generated by General Auto less (1) 17.5 percent as a fixed underwriter fee, (2) the amount set aside as reserves on open claims, and (3) the amounts paid out on claims. The retrospective commission was to be calculated by Leatherby on a quarterly basis. The contract gave General Auto the right to suggest the amount of loss reserves, but Leatherby retained ultimate control over setting the amount of these reserves. By August, 1970, Leatherby and General Auto were in dispute over the amount of loss reserves. Leatherby maintained that the reserves set by General Auto were forty percent less than what they should have been. General Auto thought thirty percent was more accurate. Leatherby insisted that the reserves should be increased by at least $85,000. An increase of that size would have created a severe cash flow difficulty for General Auto. President Lebowitz decided to find a replacement for Leatherby. Accordingly, he met in September 1970 with William A. F. Smith, head of the Philadelphia office of Joseph Froggatt & Co. They discussed the possibility of Froggatt providing General Auto with an audited financial statement which Lebowitz could use either to obtain public financing for purchase (or formation) of an insurance company or to induce another insurance company to supplant Leatherby. Smith said that a financial statement would aid in dealing with other insurance companies and indicated an interest in making such an audited statement. During the meeting Lebowitz told Smith about his policy of setting reserves as low as possible. Smith agreed that Froggatt would furnish the audited statement and in February 1971 telephoned Lebowitz, saying the audit for the year 1970 would start soon and that he would provide “the best looking statement he possibly could.” In March 1971 two Froggatt employees, Lotman and Cable, started the audit. During the course of their audit, they discovered a variety of disturbing situations: (1) one of the expenses claimed by General Auto in its book of accounts was “Manager’s Expense.” An audit of this account revealed that more than half of the $64,045 listed consisted of personal, rather than business, expenses of Lebowitz. (2) General Auto did not report or transmit all premiums due Leatherby within the time required by the agency contract. Upon questioning by Cable, Lebowitz conceded that he deliberately engaged in late reporting to enhance the cash position of General Auto. (3) Cable and Lotman discovered that General Auto was keeping two different sets of policy records. One set, for General Auto’s use, was complete. The other set, for Leatherby’s use, did not include the endorsements which required the payment of additional premiums. After Lotman and Cable had completed their field audit, they turned over their work product to Smith. In late June or early July 1971 Smith talked with Lebowitz several times about the drafts of the audited financial statement. The first draft submitted by Smith contained entries based on a loss ratio of approximately sixty-six percent. Lebowitz told Smith this was “totally unacceptable.” Smith said he would review the matter. Several days later a new draft was produced showing a fifty-six percent loss ratio. Lebowitz said this corresponded to Leather-by’s calculations which contained some “fat.” A week later Smith submitted a third draft of a financial statement based on a fifty percent loss ratio. Lebowitz expressed satisfaction and said that with that kind of statement General Auto could either obtain an agency agreement with a different company or form its own company. (The trial judge excluded all testimony of conversations between Lebowitz and Smith concerning the draft statements.) In September 1971 Lebowitz wrote a letter to Jerome Stern, president of Merit, saying that while General Auto was satisfied with its “present carrier,” it had a “capacity problem” and that General Auto was “looking for an additional company so that our expansion can continue.” On April 4, 1972 Lebowitz sent a copy of the Froggatt audit statement for 1970 to Stern and an in-house unaudited financial statement for the first nine months of 1972. On June 22, 1972 Merit and General Auto entered into an agency agreement similar to the Leatherby agreement, and General Auto began selling Merit policies in July 1972. In October 1972 Merit entered into a contract with Leatherby and General Auto whereby Merit assumed Leatherby’s outstanding policies sold by General Auto. In November 1972 General Auto ceased issuing policies for Merit. . It did continue to adjust claims it had issued for Merit and on the assumed Leatherby policies. By the end of July 1973 General Auto owed Merit $250,000 on promissory notes and $72,000 in premiums, and on August 8, 1973 Merit terminated its business relations with General Auto. Soon thereafter, General Auto went out of business. On the Leatherby policies assumed by Merit, Merit paid out between three and four million dollars compared to the nearly two million it had received from Leatherby. Merit also offered to make further proof of loss but was barred by an order of the trial judge. II The judgment of the district court must be reversed primarily because it erred in directing a verdict for the defendants. Under the rule that requires the evidence to be viewed in the light most favorable to the party opposing a motion for directed verdict, the plaintiff presented sufficient evidence to establish a prima facie case of fraud despite the fact that much relevant evidence was not admitted. The standard for establishing a prima facie case under Illinois law is that “verdicts ought to be directed . . . only in those cases in which all of the evidence, when viewed in the aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.” Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494, 229 N.E.2d 504 (1967). Illinois law requires that civil fraud must be established by clear and convincing evidence, Ray v. Winter, 67 Ill.2d 296, 10 Ill.Dec. 225, 367 N.E.2d 678 (1977), and that the essential elements of fraud are: (1) the fraudulent representation must be a statement of a material fact, as opposed to mere opinions; (2) the representation must be untrue; (3) the one making the statement must know or believe that it is untrue; (4) the person to whom the statement is made must rely on it; (5) the statement must have been made for the purpose of inducing the other party to take some affirmative action; and (6) the reliance by the person to whom the statement is made must result in his injury. Roth v. Roth, 45 Ill.2d 19, 256 N.E.2d 888 (1970); Roda v. Berko, 401 Ill. 835, 339-40, 81 N.E.2d 912, 914 (1948). Except for the proof of the injury (damages), which was not permitted by the trial court, we are of the view that a prima facie case was made out by the plaintiff as to the above enumerated elements of fraud. Having already detailed the facts of this case, and since we remand for trial, no purpose would be served in further marshalling the evidence which compels that conclusion. We do note that reliance upon the report by plaintiff was primarily based on the testimony of Jerome Stern, president of Merit. Although his testimony was severely restricted (erroneously we think), that which was admitted made reliance a jury question. Stern testified that it was General Auto’s certified audit report which induced him to follow through on the business arrangement with General Auto. He said that he was particularly impressed with defendants’ “clear opinion” showing that General Auto had a substantial net worth and high operating income. Stern further testified that he knew Froggatt to be a well-known accounting firm in the insurance field and believed at the time that it had given “an unqualified opinion that those statements fairly presented” General Auto’s financial position. Thus, it became a jury question as to whether Stern was justified in relying on the audit report which, in part at least, indicated General Auto’s financial health in 1972. Defendants argue that plaintiff failed to establish a prima facie case that they knowingly made material misrepresentations for the fraudulent purpose of inducing merit to act. Although much relevant and material evidence going to fraudulent intent was excluded erroneously by the trial judge, even that which was admitted was sufficient to present a jury question. Smith knew why the audit was made and he knew that a limited class of persons might rely on it. Moreover, Lebowitz testified about a meeting he had with Smith in September 1970: “I discussed at that time the problems that I was having with Leatherby Insurance Company in regard to the increases of loss reserves and I explained to him [Smith] the purpose of the audit was so that I would have a certified statement in order to attempt to obtain an underwriter for a public issue at the time and also that I was to approach other companies in an attempt to obtain another contract. He advised me at that time that he would look around and see what companies he could possibly suggest and he also felt that it was good to have a certified statement at that time.” Ill Contrary to the dissent, the majority of the panel is of the view that the trial court erred in dismissing Count One of the amended complaint alleging negligence in defendants’ conduct in preparing and submitting the 1970 General Auto audit. Under Illinois law, privity between Merit and the defendants is not required. Rozny v. Marnul, 43 Ill.2d 54, 250 N.E.2d 656 (1969). That case is the controlling authority in this area of the law of Illinois. One of the relevant criteria listed in Rozny is that potential liability for a negligent audit must be directed to a comparatively small group only one of whom would suffer a loss. The trial judge’s ruling was based on this criterion. Defendants support the ruling by arguing that the extension of liability for negligence to unforeseen third parties “would impermissively extend the number of potential plaintiffs to an undeterminable class.” App. Brief at 117. Plaintiff counter-argues that the class of insurance companies able to do business with General Auto, of which Merit was a member, was considerably more limited than the class of persons who might have bought the house in Rozny. To choose between these two contentions at the pleading stage is impermissible. The issue must be resolved at trial. One of the paragraphs of Count I reads: Froggatt knew or should have known that its certified financial statements would be used by third persons such as plaintiff as a basis for business decisions involving General Auto Replacement, Inc. This count, liberally interpreted, alleges a class of insurance companies which, like Merit, could provide the kind of insurance policies General Auto sold. Thus, the complaint was sufficient to withstand defendants’ challenge that the complaint was defective for want of facts showing that they knew of a limited class that might rely on the audit report. In all other respects the complaint met the requirements of Fed.R. Civ.P. 8(a). Conley v. Gibson, 355 U.S. 41, 47 — 48, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); see e. g., Eyerly Aircraft v. Killian, 414 F.2d 591, 603 (5th Cir. 1969). Illinois procedure requires a plaintiff allege freedom from contributory negligence. The complaint contains no such allegations. But the allegation was unnecessary because under Fed. R.Civ.P. 8(c) contributory negligence is an affirmative defense which a defendant, not a plaintiff, must plead. With respect to Count Two, Illinois does not recognize gross negligence as an independent ground for recovery. C.R.I. & P. Ry. v. Hamler, 215 Ill. 525, 74 N.E. 705 (1903). Accordingly, the trial court did not err in dismissing Count Two. Plaintiff contends that the trial judge erred in refusing to require Anthony Colao, one of the defendants, to complete his deposition and that such refusal, under the circumstances, was a manifest abuse of discretion. We need not recite those circumstances because we believe the problem should, if the occasion demands, be reviewed and ruled upon anew by the district court at the new trial. Because we remand for a new trial, we deem it unnecessary to comment on the numerous allegedly erroneous evidentiary rulings by the trial judge (other than those to which we have alluded in general terms in Part II). The judgment of the district court is reversed and vacated. The cause is remanded for a new trial under the provision of Circuit Rule 18. . While Lebowitz was operating G.I.A., Inc., a company authorized to write automobile casualty insurance in New Jersey and Pennsylvania, he met William A. F. Smith. On Smith’s advice, G.I.A. retained Froggatt to furnish auditing services. G.I.A. became insolvent in 1968 and went out of business. Thereafter, Lebowitz formed General Auto. 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_casetyp1_7-2
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 "economic activity and regulation". Alice B. GIST, Appellee, v. UNITED STATES of America, Appellant. No. 24709. United States Court of Appeals, Ninth Circuit. March 30, 1970. Stuart A. Smith (argued), Atty., Dept, of Justice, Johnnie M. Walters, Asst. Atty. Gen., Dept, of Justice, Washington, D. C., Charles H. Magnuson, Special Asst. U. S. Atty., Los Angeles, Cal., Harry D. Steward, U. S. Atty., San Diego, Cal., for appellant. Harrison & Watson, San Diego, Cal., for appellee. Before BARNES and CARTER, Circuit Judges, and BYRNE, District Judge. Honorable William M. Byrne, Senior United States District Judge for the Central District of California, sitting by designation. JAMES M. CARTER, Circuit Judge: The facts of this case are reported at 296 F.Supp. 526 (S.D.Cal.1969). In summary, Mrs. Gist brought an action for refund of an overpayment of federal income taxes. Able use of pretrial procedures allowed counsel to present to the trial court the single issue in the case on cross motions for summary judgment. The court granted a partial refund to Mrs. Gist. The Government appeals from that decision. We affirm. At issue is the tax consequences of Mrs. Gist’s election to take under her husband’s will rather than claim and retain all her property rights under California community property law. All of the property involved herein was community property under California law and had been acquired after July 29, 1927. California Civil Code, § 161a as amended that year provides that as to community property acquired thereafter, a wife has a “present, existing and equal interest.” If a husband provides by will for the disposition of all the community property, and if his wife approves, her election to take under the terms of the will is an election which involves the retention or exchange of a property right which exists both before and after the death of her husband. Estate of Wyss, (1931) 112 Cal.App. 487, 297 P. 100. The legal effect of such election is determined by the law of the state where the parties reside and are domiciled. Morgan v. Commissioner, (1940) 309 U.S. 78, 60 S.Ct. 424, 84 L.Ed. 585. Mr. Gist’s will placed all community property, both his share and his wife’s share, in a trust. The trust was to pay all income to Mrs. Gist for her life, then was to pay all income to two named daughters of the husband’s previous marriage for their lives, and then was to be divided among the issue of the daughters. The will further provided that if Mrs. Gist elected to take “the rights given her by law,” i.e. her half of the community property, the dispositive provisions of the will were to be carried into effect as though she had predeceased her husband. After consultation with her attorney, Mrs. Gist determined to take under the trust provisions of the will. She then sought to amortize the value of her life estate under the provisions of § 167 of the Internal Revenue Code (26 U.S.C. § 167). The Commissioner of Internal Revenue refused to allow any deduction for amortization. His decision was grounded on the language of § 273 of the Internal Revenue Code (26 U.S.C. § 273). That section provides: “Amounts paid under the laws of a State, a Territory, the District of Columbia, a possession of the United States, or a foreign country as income to the holder of a life or terminable interest acquired by gift, bequest, or inheritance shall not be reduced or diminished by any deduction for shrinkage (by whatever name called) in the value of such interest due to the lapse of time.” The Commissioner took the position that Mrs. Gist had acquired her interest by bequest from her husband’s testamentary disposition of his property. Mrs. Gist contended that she had purchased her interest by giving up fully vested rights in her half of the community property. Therefore, she had not acquired her interest by “gift, bequest, or inheritance” and was not within the coverage of § 273. The question was well briefed by both parties in the trial court. The trial court found that Mrs. Gist: (1) gave up the remainder interest in her one half of the community property; (2) retained a life estate in her half of the community property; and (3) received a life estate in her husband’s one half of the property. Accordingly, amortization was allowed only for the cost of the life estate acquired in her husband’s share of the property. Only the Government has appealed. It continues to claim that the life estate acquired by Mrs. Gist from her husband’s one half of the community property was acquired by “gift, bequest, or inheritance” within the coverage of § 273. It is admitted by both parties that the precise question is one of the first impression. The legislative history of § 273 and its antecedents is brief and unhelpful. No treasury regulations or revenue rulings provide definitive guidance. No case is precisely on point. Our review convinces us that the district court correctly decided the issue. While it would serve no purpose to fully recapitulate the court’s reasoning, we note that the court found that Mrs. Gist’s election to take under the will was not based on tax avoidance motives. Further the court alluded to the particular nature of community property law. By Cal. Civil Code 161a Mrs. Gist had a “present, existing and equal interest” in the community property before the death of her husband. The court found that the election by Mrs. Gist fully relinquished her rights to the remainder interest in her one half share of the community property; and that she relinquished this interest as a condition to receiving a life estate in the husband’s one half interest in the community property, thus constituting in her a life estate in the entire property. We agree with the district court, that under these circumstances, Mrs. Gist’s acquisition of the life estate in her husband’s one half interest in the community property should be described as a purchase. The court correctly allowed an amortization deduction. In reaching this result, we are conscious that different factual or legal situations from that present here may require different tax treatment. We, therefore, express no opinion as to the treatment to be given in related, but non-identical, situations. The judgment of the district court is Affirmed. . H.R.Rep.No.350, 67th Cong., 1st Sess. 12 (1921); S.Rep.No.275, 67th Cong., 1st Sess. 15 (1921) ; 1954 U.S.Code Cong. and Adm.News pp. 4206, 4867. 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_casedisposition
G
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. ATCHISON, TOPEKA & SANTA FE RAILWAY CO. v. BUELL No. 85-1140. Argued December 1, 1986 Decided March 24, 1987 Stevens, J., delivered the opinion for a unanimous Court. Rex E. Lee argued the cause for petitioner. With him on the briefs were R. Eden Martin, Ronald S. Flagg, John H. Ernster, and Thomas D. Peterson-More. James R. McCall argued the cause and filed a brief for respondent. Briefs of amici curiae urging reversal were filed for the Association of American Railroads et al. by Stephen A. Trimble, Richard W. Turner, and John M. Clifford; and for the National Railway Labor Conference by I. Michael Greenberger. Briefs of amici curiae urging affirmance were filed for the American Federation of Labor and Congress of Industrial Organizations et al. by Marsha Berzon, Lawrence M. Mann, Jerome M. Alper, and Laurence Gold; and for the Teamsters for a Democratic Union et al. by Paul Alan Levy and Alan B. Morrison. Justice Stevens delivered the opinion of the Court. A railroad has a duty to use reasonable care in furnishing its employees with a safe place to work. That duty was recognized at common law, see Bailey v. Central Vermont R. Co., 319 U. S. 350, 352-353 (1943), is given force through the Federal Employers’ Liability Act (FELA), 45 U. S. C. § 51 et seq., and is confirmed in some, if not all, collective-bargaining agreements. Breaches of the duty may at times give rise to typical labor disputes for which the Railway Labor Act (RLA), 44 Stat. 577, as amended, 45 U. S. C. §151 et seq., sets forth binding arbitration procedures. Breaches may also result in injuries to a railroad’s employees — injuries for which the FELA would appear to give employees a cause of action for damages. The question in this case is whether the possibility of pursuing a labor grievance under the RLA deprives an employee of his right to bring an FELA action. I Respondent, a carman employed by petitioner, the Atchison, Topeka and Santa Fe Railway Company (Railroad), filed an FELA complaint in Federal District Court, alleging that he had suffered severe personal injuries as a result of the Railroad’s failure “to provide [him] with a safe place to work, including, but not limited to, having fellow employees harass, threaten, intimidate [him], and in particular, foreman Ed Wright threatened, harassed, and intimidated [him] maliciously and oppressively, negligently, and intentionally, in order to cause personal injury to [him] and to cause mental and emotional suffering. All said acts were condoned and approved by [the Railroad] and as a direct and proximate result of said negligence and intentional acts, [he] was caused to suffer an emotional breakdown, thus inflicting on [him] injuries and damages as hereinafter alleged.” App. 7. The Railroad filed an answer, asserting, among other defenses, that respondent’s sole remedy was before the National Railroad Adjustment Board (Adjustment Board) pursuant to the RLA. Id., at 10-13. Through the ensuing discovery, the Railroad identified various incidents of harassment that were embraced within the complaint’s allegations, and also established that its collective-bargaining agreement with respondent’s union allowed an employee to prosecute a grievance through successive levels of appeal up to and including mutually binding arbitration before the Adjustment Board. Discovery also brought out that respondent had suffered a mental breakdown, and certain associated physical disorders, that required his hospitalization for 17 days. The Railroad then moved for dismissal or for summary judgment. The ground for its motion, in the Railroad’s own words, was that “there is no subject matter jurisdiction in the district court to entertain an action concerning a labor dispute between a ‘carrier’ subject to the Railway Labor Act and its employees.” Record Doc. No. 42, p. 6. The District Court accepted this argument, and granted summary judgment on “the narrow question of the availability to an employee covered by the RLA of an FELA remedy based on an alleged negligent failure to maintain a safe workplace.” App. to Pet. for Cert. 11a. The Court of Appeals reversed. It held that respondent’s claims were not arbitrable under the RLA, and that an FELA action was therefore not precluded. 771 F. 2d 1320, 1323-1324 (CA9 1985). Additionally, although the question had neither been raised by the parties nor addressed by the District Court, the Court of Appeals proclaimed that a relevant “issue, one of first impression in this circuit, is whether a Railroad employee’s wholly mental injury stemming from his railroad employment is compensable under the [FELA].” Id., at 1321. The Court of Appeals concluded that the FELA does authorize recovery for emotional injury. Because of the important role these two statutes play in railway labor relations, we granted certiorari. 476 U. S. 1103 (1986). I — I I — \ In 1906, Congress enacted the FELA to provide a federal remedy for railroad workers who suffer personal injuries as a result of the negligence of their employer or their fellow employees. A primary purpose of the Act was to eliminate a number of traditional defenses to tort liability and to facilitate recovery in meritorious cases. The Act expressly prohibits covered carriers from adopting any regulation, or entering into any contract, to limit their FELA liability. The coverage of the statute is defined in broad language, which has been construed even more broadly. We have recognized generally that the FELA is a broad remedial statute, and have adopted a “standard of liberal construction in order to accomplish [Congress’] objects.” Urie v. Thompson, 337 U. S. 163, 180 (1949). The RLA, by contrast, provides a comprehensive framework for the resolution of labor disputes in the railroad industry. Enacted in 1926, the text of the RLA does not mention the FELA or otherwise deal with the subject of tort liability. Rather, the RLA establishes elaborate administrative procedures for the resolution of both major and minor labor disputes. The statutory procedures for resolving “major disputes” — those arising “out of the formation or change of collective [bargaining] agreements covering rates of pay, rules, or working conditions,” Detroit & T. S. L. R. Co. v. Transportation Union, 396 U. S. 142, 145, n. 7 (1969) — are not relevant to this case. The “minor dispute” provisions are relevant, however, because the Railroad argues that the underlying dangerous condition in this case could have been grieved as a minor dispute — one “growing out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions,” 45 U. S. C. § 153, First (i). Minor disputes initially must be dealt with through a railroad’s internal dispute resolution processes, and if not settled there, may be submitted to a division of the Adjustment Board, or to a Public Law Board, which is an arbitration board chosen by the parties. Judicial review of these Boards’ determinations has been characterized as “‘among the narrowest known to the law.’” Union Pacific R. Co. v. Sheehan, 439 U. S. 89, 91 (1978) (citation omitted). The Railroad makes three arguments in support of its contention that respondent may not bring an FELA action for his injuries. First, it argues that the exclusive forum for any dispute arising out of workplace conditions is the RLA. Second, it argues that even if many workplace injuries are actionable under the FELA, emotional injuries should not be actionable because of their close relationship to minor disputes that are to be brought under the RLA. Finally, the Railroad responds to the Court of Appeals’ discussion of whether the term “injury” as used in the FELA includes purely emotional injury, and argues that it does not. We reject the Railroad’s first two arguments. As for the third argument, which focuses on the scope of the FELA, we believe that the record is insufficiently developed at this preliminary stage to allow us, or the Court of Appeals, to express an opinion on respondent’s ultimate chances of recovery under the FELA. Ill The Railroad asserts first that employees have the right to have defects in the workplace corrected by resorting to the grievance machinery that is in place pursuant to the RLA, and that the RLA is the exclusive remedy for such minor disputes. Indeed, in this case, preliminary though abortive steps in that direction were actually taken. Thus, the Railroad argues that an FELA action for damages is barred. We find no merit in this argument. The fact that an injury otherwise compensable under the FELA was caused by conduct that may have been subject to arbitration under the RLA does not deprive an employee of his opportunity to bring an FELA action for damages. Presumably a host of personal injuries suffered by railroad employees are caused by negligent practices and conditions that might have been cured or avoided by the timely invocation of the grievance machinery. See Yawn v. Southern R. Co., 591 F. 2d 312, 317 (CA5 1979). But we have never considered that possibility a bar to an employee’s bringing an FELA claim for personal injuries, and the Railroad has not persuaded us to do so now. This Court has, on numerous occasions, declined to hold that individual employees are, because of the availability of arbitration, barred from bringing claims under federal statutes. See, e. g., McDonald v. West Branch, 466 U. S. 284 (1984); Barrentine v. Arkansas-Best Freight System, Inc., 450 U. S. 728 (1981); Alexander v. Gardner-Denver Co., 415 U. S. 36 (1974). Although the analysis of the question under each statute is quite distinct, the theory running through these cases is that notwithstanding the strong policies encouraging arbitration, “different considerations apply where the employee’s claim is based on rights arising out of a statute designed to provide minimum substantive guarantees to individual workers.” Barrentine, supra, at 737. This principle is instructive on the question before us. The FELA not only provides railroad workers with substantive protection against negligent conduct that is independent of the employer’s obligations under its collective-bargaining agreement, but also affords injured workers a remedy suited to their needs, unlike the limited relief that seems to be available through the Adjustment Board. It is inconceivable that Congress intended that a worker who suffered a disabling injury would be denied recovery under the FELA simply because he might also be able to process a narrow labor grievance under the RLA to a successful conclusion. As then District Judge J. Skelly Wright concluded, “the Railway Labor Act . . . has no application to a claim for damages to the employee resulting from the negligence of an employer railroad.” Barnes v. Public Belt R. R. Comm’n for City of New York, 101 F. Supp. 200, 203 (ED La. 1951). It is true that the RLA remedy for the resolution of minor disputes is “in at least some situations” exclusive. Andrews v. Louisville & Nashville R. Co., 406 U. S. 320, 325 (1972). In Andrews, an employee brought a state wrongful discharge claim based squarely on an alleged breach of the collective-bargaining agreement. We held that Congress had intended the RLA dispute resolution mechanism to be mandatory for that type of dispute, and that courts were therefore foreclosed from addressing claims that properly arise under the RLA. In this case, by contrast, Congress has enacted the FELA to serve as the statutory basis for the award of damages to employees injured through an employer’s or coworker’s negligence. Unwilling to rely solely on the argument that any injury caused by a condition that could have been the subject of a grievance under the RLA is not actionable under the FELA, petitioner and various amici argue, in the alternative, that the RLA requires that a narrow “emotional injury” exception be carved out of the FELA. Because they fear that many workers alleging emotional injuries are really complaining of unhappiness arising out of everyday workplace disputes, they ask us to hold that the RLA provides the exclusive remedy for this ill-defined class of injuries. Even if we were to find some authority allowing us to rewrite the FELA in this manner, we are not persuaded that it would be appropriate to do so. There is no basis for assuming that allowing FELA actions for emotional injury will wreak havoc with the general scheme of RLA arbitration, and absent an intolerable conflict between the two statutes, we are unwilling to read the RLA as repealing any part of the FELA. See Morton v. Mancari, 417 U. S. 535, 550 (1974). Although we do not decide today whether purely emotional injuries are cognizable under the FELA, we stress that it is the FELA that controls that inquiry, not the RLA. As far as a worker’s right to damages under the FELA is concerned, Congress’ enactment of the RLA has had no effect. > I — I The Railroad also contends that the judgment of the Court of Appeals should be reversed because it erroneously concluded that a railroad employee’s “wholly mental injury” is compensable under the FELA. The problem with our addressing this argument is that, because of the posture in which this case comes before us, the record has never been developed on the exact nature of the allegedly tortious activity, or the extent of the injuries that respondent claims to have suffered. As we have mentioned, petitioner’s motion for dismissal or for summary judgment was based on the sole ground that an employee’s exclusive remedy for a railroad’s failure to maintain a safe workplace is to file a grievance-under the RLA. Respondent's memorandum, of course, sought to respond to that narrow argument alone, and did not deal with the question whether emotional injury is actionable under the FELA. The question whether “emotional injury” is cognizable under the FELA is not necessarily an abstract point of law or a pure question of statutory construction that might be answerable without exacting scrutiny of the facts of the case. Assuming, as we have, that FELA jurisprudence gleans guidance from common-law developments, see Urie v. Thompson, 337 U. S., at 174, whether one can recover for emotional injury might rest on a variety of subtle and intricate distinctions related to the nature of the injury and the character of the tortious activity. For example, while most States now recognize a tort of intentional infliction of emotional distress, they vary in the degree of intent required to establish liability, and the level of physical manifestation of the emotional injury required to support recovery. Moreover, some States consider the context and the relationship between the parties significant, placing special emphasis on the workplace. In addition, although many States have now recognized a tort of negligent infliction of emotional distress, they too vary in the degree of objective symptomatol-ogy the victim must demonstrate. These issues are only-exemplary of the doctrinal divergences in this area. In short, the question whether one can recover for emotional injury may not be susceptible to an all-inclusive “yes” or “no” answer. As in other areas of law, broad pronouncements in this area may have to bow to the precise application of developing legal principles to the particular facts at hand. Since, through no fault of either party, we do not know what all those facts are in this case, we cannot begin to decide whether respondent will be able to support his allegation that petitioners are liable to him under the FELA. Given the posture of the case, there was no reason for the Court of Appeals to express an opinion on this issue. Without agreeing or disagreeing with the merits of the Court of Appeals’ discussion of the emotional injury issue, we affirm its judgment only to the extent that it rejects the RLA preclusion argument advanced by the Railroad. Accordingly, the judgment of the Court of Appeals is affirmed in part and vacated in part, and the case is remanded for proceedings consistent with this opinion. It is so ordered. Most of the incidents involved Ed Wright, respondent’s immediate supervisor. He allegedly insisted that respondent and other carmen complete certain ear inspection reports in an improper manner, directed respondent to help him remove company property from the yard, repeatedly threatened to discharge respondent, and condoned conduct by other employees that was obviously intended to humiliate respondent. Respondent and several other carmen requested their union to prepare a written grievance and the union discussed respondent’s complaints with the Railroad, but no formal grievance was ever initiated. One of the captions in the Railroad’s brief in the Court of Appeals stated without reservation that “[t]he sole issue is whether plaintiff’s claims are subject to the mandatory, exclusive administrative jurisdiction of the NRAB.” See Brief for Appellee in No. 84-2288 (CA9), p. 18. At the hearing on the motion to dismiss or for summary judgment the District Court stated: “The matter is on today’s calendar for defendant’s motion for summary judgment on the grounds that the complaint raises issues that are within the jurisdiction of National Railroad Adjustment Board, and therefore not within this Court’s jurisdiction.” 3 Tr. 2. The original 1906 enactment, 34 Stat. 232, was struck down in Howard v. Illinois Central R. Co., 207 U. S. 463 (1908), on the ground that it applied to intrastate as well as interstate commerce. In 1908, Congress enacted another version, 35 Stat. 65, which applied only to interstate commerce, and included some substantive modifications. Section 5 of the FELA, as codified, provides, in part: “Any contract, rule, regulation, or device whatsoever, the purpose or intent of which shall be to enable any common carrier to exempt itself from any liability created by this chapter, shall to that extent be void.” 45 U. S. C. §55. Section 1 of the FELA, as codified, provides, in part: “Every common carrier by railroad while engaging in commerce between any of the several States . . . shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce . . . resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, tract, roadbed, works, boats, wharves, or other equipment.” 45 U. S. C. §51. Thus, for example, with respect to causation, we have held that “the test of a jury case” under the statute is “simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought.” Rogers v. Missouri Pacific R. Co., 352 U. S. 500, 506 (1957). Indeed, in the spirit of broad construction, the FELA has been construed to cover some intentional torts even though its text only mentions negligence. See Jamison v. Encarnacion, 281 U. S. 635, 641 (1930); Lancaster v. Norfolk & Western R. Co., 773 F. 2d 807, 812-813 (CA7 1985), cert. pending, No. 85-1702; Slaughter v. Atlantic Coast Line R. Co., 112 U. S. App. D. C. 327, 302 F. 2d 912, cert denied, 371 U. S. 827 (1962); see generally Annot., Liability Under Federal Employers’ Liability Act for Intentional Tort, 8 ALR 3d 442 (1966). In enacting the RLA: “Congress endeavored to promote stability in labor-management relations in this important national industry by providing effective and efficient remedies for the resolution of railroad-employee disputes arising out of the interpretation of collective-bargaining agreements. See Gunther v. San Diego & A. E. R. Co., [382 U. S. 257 (1965)]; Union Pacific R. Co. v. Price, [360 U. S. 601 (1959)]; Slocum v. Delaware, L. & W. R. Co., 339 U. S. 239 (1950). The Adjustment Board was created as a tribunal consisting of workers and management to secure the prompt,, orderly and final settlement of grievances that arise daily between employees and carriers regarding rates of pay, rules, and working conditions. Union Pacific R. Co. v. Price, supra, at 611; Elgin J. & E. R. Co. v. Burley, 327 U. S. 661, 664 (1946). Congress considered it essential to keep these so-called ‘minor’ disputes within the Adjustment Board and out of the courts. Trainmen v. Chicago, R. & I. R. Co., 353 U. S. 30, 40 (1957).” Union Pacific R. Co. v. Sheehan, 439 U. S. 89, 94 (1978). In analyzing the Railroad’s arguments that the RLA precludes an FELA action for this type of injury, it is essential to recognize that the arguments do not depend on the Railroad’s alternative argument that the FELA does not provide damages for purely emotional injury. The preclusion argument turns, not on the nature of an employee’s injury, but on the source of the injury. See, e. g., Bailey v. Central Vermont R. Co., 319 U. S. 350 (1943); Lavender v. Kurn, 327 U. S. 645 (1946); Ellis v. Union Pacific R. Co., 329 U. S. 649 (1947); cf. Gateway Co. v. Mine Workers, 414 U. S. 368 (1974). See Lewy v. Southern Pacific Transportation Co., 799 F. 2d 1281, 1295, 1297 (CA9 1986) (RLA remedies are backpay and reinstatement); National Railroad Ajustment Board, First Division, Award No. 16111 (Feb. 23, 1953) (“[T]here is a remedy to correct the practice if it is wrong, even though it does not extend to a money damage”). Counsel for petitioner also represented that the Adjustment Board only awards “damages in the sense of reinstatement and back pay,” and cannot “award damages in the sense of the kinds of damages that a court would under an FELA” action. Tr. of Oral Arg. 11. Petitioner predicts that if emotional injuries are cognizable under the FELA, virtually no employees will pursue grievances through the RLA since ‘“every employee who believes he has a legitimate grievance will doubtless have some emotional anguish.’ ” Brief for Petitioner 24 (quoting Magnuson v. Burlington Northern, Inc., 576 F. 2d 1367, 1369 (CA9), cert. denied, 439 U. S. 930 (1978)). Indeed, one amicus asserts that a large portion of the 183,800 grievances filed in 1985 would be pursued as FELA actions instead, thus creating the “potential for doubling the volume of civil filings in the federal courts.” Brief for Association of American Railroads et al. as Amici Curiae 16. This parade of horribles mistakenly assumes that a significant percentage of employees bringing grievances suffer the type of severe emotional injury that has generally been required to establish liability for purely emotional injury, see n. 18, infra, and that a significant percentage of employees are subject to the type of unconscionable abuse which is a prerequisite to recovery. In Farmer v. Carpenters, 430 U. S. 290 (1977), we held that a state action for intentional infliction of emotional distress was not pre-empted by the National Labor Relations Act (NLRA), and pointed out that the risk of interference with the NLRA was minimized by the fact that state law permitted “recovery only for emotional distress sustained as a result of ‘outrageous’ conduct.” Id., at 305. See generally American Bar Association’s Special Committee on the Tort Liability System, Towards a Jurisprudence of Injury: The Continuing Creation of a System of Substantive Justice in American Tort Law 5-17 (1984) (courts have been properly concerned to keep tort from becoming a remedy for minor upsets); Restatement (Second) of Torts § 46(d) (1965) (hereafter Restatement) (discussing “outrage” element). See nn. 3 and 4, supra. Indeed, in ruling on the motion the District Court explicitly stated that the railroad did not dispute at that juncture that the claim fell under the FELA, but instead “[sought] to avoid the issue by contending that exclusive jurisdiction to resolve plaintiff’s claim lies elsewhere.” Record Doc. No. 44, p. 4. Under the Federal Rules of Civil Procedure, respondent had no duty to set out all of the relevant facts in his complaint. See Fed. Rule Civ. Proc. 8; Conley v. Gibson, 355 U. S. 41, 47-48 (1957). Had petitioner moved for summary judgment on the ground that FELA does not recognize claims for respondent’s type of injury, respondent would have had the opportunity to supplement the record with relevant facts to contest that motion. See Fed. Rule Civ. Proc. 56(c). As we explained last Term, summary judgment is available only when, “after adequate time for discovery and upon motion,” the party seeking summary judgment has satisfied its “responsibility of informing the district court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U. S. 317, 323 (1986). The tort of intentional infliction of mental distress as described in § 46 of the Restatement [(Second) of Torts] can be safely characterized as the general rule in the United States. ... As of 1977, 37 jurisdictions had ree-ognized the tort.” Leithead v. American Colloid Co., 721 P. 2d 1059, 1066 (Wyo. 1986). The Restatement §46(1) sets forth an “intentionally or recklessly” standard. Many jurisdictions have adopted this test. See, e. g., Watts v. Golden Age Nursing Home, 127 Ariz. 255, 258, 619 P. 2d 1032, 1035 (1980) (recklessness); Davidson v. Westminster, 32 Cal. 3d 197, 209, 649 P. 2d 894, 901 (1982) (recklessness); Freihofer v. Hearst Corp., 65 N. Y. 2d 135, 143, 480 N. E. 2d 349, 355 (1985) (recklessness). Others apply different standards. See, e. g., M. B. M. Co. v. Counce, 268 Ark. 269, 277, 596 S. W. 2d 681, 685-686 (1980) (willful or wanton); Anderson v. Prease, 445 A. 2d 612, 613 (D. C. App. 1982) (intention can be inferred from outra-geousness of conduct); Hall v. May Department Stores Co., 292 Ore. 131, 135, 637 P. 2d 126, 129 (1981) (indifference and gross negligence not enough); Wright v. Hasley, 86 Wis. 2d 572, 576, 273 N. W. 2d 319, 321 (1979) (“purposely”). One leading commentary states that “[ijn.the great majority of cases allowing recovery the genuineness of the mental disturbance has been evidenced by resulting physical illness of a serious character.” W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts 64 (5th ed. 1984). The American Law Institute urges that as long as the distress is “genuine and severe,” bodily harm should not be required. Restatement § 46(k). Many jurisdictions have adopted the Restatement’s approach, see, e. g., Poulsen v. Russell, 300 N. W. 2d 289, 291 (Iowa 1981); Vicnire v. Ford Motor Credit Co., 401 A. 2d 148, 154 (Me. 1979). Others, however, appear to be more demanding in their scrutiny. See, e. g., Hubbard v. United Press International, Inc., 330 N. W. 2d 428, 437-440 (Minn. 1983); Hassing v. Wortman, 214 Neb. 154, 158-166, 333 N. W. 2d 765, 767-771 (1983). See Hall, supra, at 131, 637 P. 2d, at 126; Contreras v. Crown Zellerbach Corp., 88 Wash. 2d 735, 741, 565 P. 2d 1173, 1176-1177 (1977); Alcorn v. Anbro Engineering, Inc., 2 Cal. 3d 493, 498, n. 2, 468 P. 2d 216, 218, n. 2 (1970). For example, while the traditional rule was that a plaintiff could not recover for mental injuries unconnected with actual or threatened impact, the majority of jurisdictions now appear to have abandoned that rule. See generally Gates v. Richardson, 719 P. 2d 193, 195, n. 1 (Wyo. 1986) (citing cases from 37 jurisdictions); Restatement §§ 313, 436, 436A; Bell, The Bell Tolls: Toward Full Tort Recovery for Psychic Injury, 36 U. Fla. L. Rev. 333,336-340 (1984); Note, Administering the Tort of Negligent Infliction of Emotional Distress: A Synthesis, 4 Cardozo L. Rev. 487 (1983). As the Wyoming Supreme Court recently observed: “[Ajmong the courts that recognize the cause of action for negligent infliction of emotional distress, there is a great deal of variation in the damages they allow.” Gates, supra, at 199-200. See, e. g., Leong v. Takasaki, 55 Haw. 398, 403, 520 P. 2d 758, 762 (1974) (no minimum showing of severity); Barnhill v. Davis, 300 N. W. 2d 104, 108 (Iowa 1981) (severe injury); Corso v. Merrill, 119 N. H. 647, 659, 406 A. 2d 300, 308 (1979) (objective physical symptoms). Some courts require an objective showing of physical symptoms to recover for negligent, but not intentional, infliction of emotional distress. See Vicnire, supra, at 157. Indeed, it appears that once the facts of this case are fleshed out through appropriate motions or through an eventual trial, it might not squarely present the question of pure emotional injury at all. In the course of respondent’s deposition, he testified that there was at least one episode of an actual assault by some co-workers. 2 Tr. 101, 102. Moreover, he claimed to have suffered physical symptoms in addition to his severe psychological illness. Id., at 7, 8. 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_juryinst
A
What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court conclude that the jury instructions were improper?" 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. Everett TOWERS, Defendant-Appellant. No. 84-2523. United States Court of Appeals, Seventh Circuit. Argued April 10, 1985. Decided Oct. 15, 1985. Robert G. Perry, Asst. U.S. Atty., John Daniel Tinder, U.S. Atty., Indianapolis, Ind., for defendant-appellant. Kevin McShane, McShane & Inman, Indianapolis, Ind., for plaintiff-appellee. Before WOOD and COFFEY, Circuit Judges, and PECK, Senior Circuit Judge. The Honorable John W. Peck, Senior Circuit Judge of the United States Court of Appeals for the Sixth Circuit, is sitting by designation. COFFEY, Circuit Judge. The defendant, Everett Towers, appeals his convictions for possession and conspiracy to possess cocaine with intent to distribute and distribution of cocaine. Towers also appeals his sentence as a Dangerous Special Drug Offender. We affirm. I A grand jury in the Southern District of Indiana returned an indictment on July 14, 1982 against ten individuals for conspiring to distribute cocaine from or about September, 1976 and continuing to January of 1981 within the Southern District of Indiana and elsewhere. In addition to charging the defendant Towers with conspiracy to distribute cocaine, the indictment also charged Towers with two counts of possession of cocaine with intent to distribute in January of 1981 and two counts of possession of cocaine with intent to distribute and distribution of cocaine in December of 1977. The evidence at trial revealed that Towers was the source of cocaine for a group of narcotics dealers who sold the cocaine in Indiana, Florida, and, on one occasion, California. In October of 1976, three men in Anderson, Indiana (Woods, Cockman and Doyle), who had purchased marijuana and small amounts of cocaine from Towers since 1974, agreed to pool their money to purchase for resale large amounts of cocaine from Towers, who resided in Florida. Doyle traveled to Florida, purchased cocaine from Towers with the collective funds, approximately $100,000. Woods, Cockman and Doyle resold the cocaine in Indiana and California. In furtherance of the conspiracy, Woods, Cockman and Doyle moved to Florida in late 1976 or early 1977, and continued to purchase cocaine from Towers, reselling the cocaine to purchasers and distributors in Florida who transported the drugs to Indiana for resale. Shortly after their arrival in Florida, one Fred McCord joined the conspiracy after Cock-man and Doyle permanently ceased doing business with Woods because he talked too much about his involvement in selling narcotics with other people. McCord’s role in the conspiracy was to sell the cocaine Cock-man and Doyle purchased from Towers. In early December of 1977, Cockman was arrested in Fort Lauderdale, Florida by agents of the Drug Enforcement Administration (“DEA”) for attempting to sell cocaine obtained from Towers. Following Cockman’s arrest, Towers continued to sell cocaine to Doyle for resale, while McCord fled to South America and began smuggling cocaine into the United States with other parties. McCord returned to the United States in 1978, moved into Towers’ home, and resumed selling Towers’ cocaine. In January of 1980, McCord was arrested by a DEA agent for distributing narcotics. Subsequently, on January 23, 1981, one James Barron, who transported drugs from Florida to Indiana and California for Doyle and McCord from 1976 through 1980, was arrested in Indianapolis, Indiana after selling cocaine to an agent of the DEA for $16,800. Barron’s supplier of the cocaine, Jeffrey Doyle, was arrested shortly thereafter by DEA agents for his involvement in this narcotics transaction. The agents obtained a warrant, searched Doyle’s apartment, and seized, along with other evidence, a key to a safety deposit box. The agents obtained another search warrant for the safety deposit box and upon search discovered fifty grams of cocaine. Towers, who was arrested in 1984, some three years later, was convicted in a jury trial in the United States District Court for the Southern District of Indiana of one count of conspiracy to possess cocaine with intent to distribute, two counts of possession of cocaine with intent to distribute and distribution of cocaine, and two counts of possession of cocaine. After a post-trial hearing, the district court determined that Towers was a Special Dangerous Drug Offender pursuant to 21 U.S.C. § 849(e)(2) and (e)(3). Towers was sentenced to twenty years imprisonment for his conviction on the conspiracy to possess cocaine with intent to distribute count and to eighteen years imprisonment for each of the four remaining counts. Three of the eighteen year sentences run concurrently with the twenty year sentence but the fourth eighteen year sentence is consecutive to the twenty year sentence. Additionally, Judge Steckler ordered Towers to serve a special parole term of three years on each of the possession and possession with intent to distribute counts and fined Towers $125,-000. On appeal, Towers argues: (1) the court erred in allowing evidence of Towers’ real estate transactions during the period of the conspiracy offered to prove that Towers accumulated a large amount of money from his narcotics trafficking and attempted to conceal that wealth; (2) the evidence was insufficient to connect Towers with either Barron’s sale of cocaine in Indianapolis in January of 1981 or with the cocaine discovered in Doyle’s safety deposit box; (3) the court erred in failing to give the defendant’s tendered instruction dealing with proof of multiple conspiracies; (4) the court erred in determining Towers to be a dangerous special drug offender. II A. The Real Estate Transactions The government presented testimony concerning Towers’ real estate transactions during the period of the conspiracy to demonstrate that Towers accumulated large amounts of money from his narcotics dealings and attempted to conceal these assets by utilizing aliases, corporations and “straw men” to purchase property. Specifically, William C. Shaw, a Florida attorney, testified that the Capuchin Corporation, an entity Shaw incorporated at Towers’ behest, sold land located in Collier County, Florida to Jeffrey Doyle in 1978. Additionally, two corporations controlled by Towers under an alias sold a piece of property in Broward County, Florida for $500,000. Towers paid a James Tetro $50,000 to sign documents as an officer of the corporation and to appear for the corporation at the closing. The net proceeds of the sale, approximately $260,000, were paid in cash. Towers contends that the admission of this evidence under Fed.R.Evid. 404(b) was improper because the real estate transactions “were not similar to the charges in question.” Additionally, Towers asserts that the prejudice resulting from the admission of the evidence outweighed the transactions’ probative value because, “there was never a link between any financial transaction of Appellant Towers’ and any dealing of cocaine.” Evidence is admissible under Fed. R.Evid. 401 and 402 if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Additionally, Fed.R.Evid. 404(b) permits the admission of evidence of other acts, similar to the conduct charged in the indictment, to prove, “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Towers was charged with, inter alia, conspiracy to possess cocaine with intent to distribute. Concealing the source of proceeds from narcotics transactions (“laundering”) is one facet of a conspiracy to distribute narcotics. United States v. Metz, 608 F.2d 147, 153 (5th Cir.1979). Moreover, “[wjhere a defendant is on trial for a crime in which pecuniary gain is the usual motive for or natural result of its perpetration and there is other evidence of his guilt, evidence of the sudden acquisition or expenditure of large sums of money by the defendant, at or after the time of the commission of the alleged offense, is admissible to demonstrate the defendant’s illegal obtention of those funds. Evidence of this type is admissible even though the government does not specifically trace the source of those funds to the illegal acts charged against the defendant because ‘a dishonest acquisition ... [is] a natural and prominent hypothesis’ ... explaining the defendant’s affluence.” United States v. Chagra, 669 F.2d 241, 256 (5th Cir.1982). When evidence that a defendant engaged in a large scale continuing narcotics enterprise is presented, an objection to evidence of the defendant’s receipt of large sums of money goes to the weight rather than the admissibility of the evidence. Id.; see also United States v. Crisp, 435 F.2d 354, 360 (7th Cir.1970), cert. denied, 402 U.S. 947, 91 S.Ct. 1640, 29 L.Ed.2d 116; United States v. Robinson, 635 F.2d 981, 987 (2d Cir.1980), cert. denied, 451 U.S. 992, 101 S.Ct. 2333, 68 L.Ed.2d 852. An examination of the record reveals that Towers engaged in a large narcotics trafficking enterprise during the time he owned or sold the real estate. Specifically, McCord and Cockman testified that Towers sold cocaine to Doyle and other members of the conspiracy from 1974 to 1981. Doyle and the other members of the conspiracy sold the cocaine obtained from Towers to Florida purchasers and to distributors who transported the narcotics to Indiana for resale. Moreover, McCord further informed the court that, while he was living in Towers’ home in 1978, he observed large amounts of money ($35,000 to $45,00) and one to two kilograms of cocaine at the residence. We hold that admission of the evidence concerning the real estate transactions was proper because the evidence demonstrated Towers’ scheme to conceal the proceeds of his narcotics trafficking. B. Sufficiency of the Evidence on Counts IX and XII Towers challenges his conviction on Count IX of the indictment, based on Barron’s January 23, 1981 sale of cocaine to a DEA agent in Indianapolis, because, “no evidence was presented that Mr. Towers actually participated in the sale, or that he was even in the Southern District of Indiana at the time, [thus] any determination of his guilt on that count would have to have been based on evidence that he was the source of the cocaine, thereby making him an aider and abettor under 18 U.S.C. § 2.” Although Towers concedes that the evidence demonstrates that Barron obtained the cocaine from Doyle, he contends, “there is no substantial evidence showing where Doyle ... obtained the cocaine.” (emphasis his). Similarly, Towers argues that his conviction on Count XII, based on the cocaine in the safety deposit box, cannot stand because, “[t]here was no evidence whatsoever presented with respect to the identity of the source [of the cocaine]____” In evaluating the sufficiency of the evidence in a criminal case, the reviewing court must determine, “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942). The inference of the defendant’s guilt of a criminal offense may be created either by direct evidence or by circumstantial evidence and circumstantial evidence is of equal probative value to direct evidence. United States v. Glasser, 443 F.2d 994 (2d Cir.), cert. denied 404 U.S. 854, 92 S.Ct. 96, 30 L.Ed.2d 95 (1971). The evidence presented by the government established a continuing relationship between Towers and Doyle involving substantial narcotics transactions from 1976 to 1981. Cockman and McCord’s testimony established that Towers was Doyle’s source of cocaine before Cockman’s arrest and McCord’s testimony about Towers’ activities after the arrest demonstrated that Towers continued to supply Doyle with narcotics for distribution. Moreover, during their search of Doyle’s Indianapolis apartment, which he shared with his girlfriend, the DEA agents found a gold bracelet engraved “Everett” and two airline tickets dated December, 1980, for travel from Indianapolis to Florida in the names of Mr. and Mrs. David Woods. The bracelet and the airline tickets are evidence that Towers and Doyle maintained contact and that Doyle and his girlfriend had traveled under false names to Florida, Towers’ base of operations, within sixty days of the seizure of the cocaine in the apartment. Finally, a government agent’s testimony in regard to Doyle and Towers’ telephone records revealed that Doyle, Towers and other members of the conspiracy frequently communicated in late 1980. We hold that a reasonable trier of fact could infer from this direct and circumstantial evidence of the continuing relationship between Towers and Doyle involving substantial narcotics transactions from 1976 through 1980 that Towers was the source of the cocaine Doyle sold Barron and of the cocaine stored in Doyle's safety deposit box. C. The Rejected Jury Instruction The trial judge ruled that the evidence did not warrant giving Towers’ proffered instruction directing the jury to acquit the defendant if it found that the government proved multiple conspiracies rather than the single conspiracy charged in the indictment. Towers argues that the district court erred because the conspiracy terminated with the 1977 arrest of Cockman and a separate conspiracy was formed at some unspecified time. A reviewing court determining whether the evidence established a single conspiracy or multiple conspiracies must consider the evidence in the light most favorable to the government. United States v. Read, 658 F.2d 1225, 1230 (7th Cir.1981). To determine whether a single or a multiple conspiracy existed, the court must look to the nature of the agreement. United States v. Kendall, 665 F.2d 126, 136 (7th Cir.1981). “If the persons join together to further one common design or purpose, a single conspiracy exists.” Id. “While the parties to the agreement must know that others are participating in the conspiracy, they neither have to personally know the individuals involved, nor do they have to participate in every facet of the conspiracy scheme. As long as the conspiracy continues and its goal is to achieve a common objective ... parties may still be found guilty even though they join or terminate their relationship with the core conspirators at different times.” United States v. Noble, 754 F.2d 1324, 1329 (7th Cir.1985). A conspiracy does not terminate with the arrest of one of the conspirators if the goal of the conspiracy has not been accomplished. United States v. Testa, 548 F.2d 847, 852 (9th Cir.1977). A conspiracy to distribute narcotics continues after the arrest of one of the conspirators if the unarrested conspirators continue to conspire to distribute narcotics. United States v. Felts, 602 F.2d 146, 149 (7th Cir.1979). “The trial judge is in the best position to determine whether the possibility of variance exists [because multiple conspiracies were shown.] Kendall, 665 F.2d at 137. A trial court does not err in refusing to give multiple conspiracy instruction if the evidence does not warrant such an instruction. United States v. Perry, 550 F.2d 524, 531 (9th Cir.1977). Towers bases his argument that there were multiple conspiracies on the allegation that the conspiracy ended in 1977 with the arrest of Cockman. However, an examination of the record reveals that Doyle discounted the selling price of his cocaine immediately after the arrest in an attempt to raise attorneys fees for Cock-man and that McCord sold the discounted cocaine. Moreover, McCord informed the court that, on his return to the United States in 1978, Towers advised him that he continued to sell narcotics to Doyle for resale at that time. Indeed, Towers sold narcotics to McCord and McCord observed cocaine and large sums of money in Towers’ home during 1978. Barron testified that he transported marijuana and cocaine from Florida to Indiana and California from 1976 through 1980 and that he overheard conversations identifying the source of the drugs as “Everett” or “Towers.” The bracelet and airplane tickets seized in Doyle’s Indianapolis apartment and the record of phone calls between Doyle, Towers, and other members of the conspiracy covering the period from September, 1979 to December, 1980 demonstrated that the members of the conspiracy were in contact with one another until Barron and Doyle were arrested for narcotics transactions in Indianapolis in January of 1981. Viewing this evidence in the light most favorable to the government, we agree with the district court that the evidence established one single on-going conspiracy rather than multiple conspiracies. Thus, we hold the evidence did not warrant a multiple conspiracy instruction and the district court’s rejection of Towers’ proffered instruction was proper. D. Special Dangerous Drug Offender At the post-trial hearing on the question of whether Towers was a Special Dangerous Drug Offender, the judge took judicial notice of the proceedings in Towers’ jury trial, including the indictment, testimony and exhibits. Additionally, the judge heard testimony from Walter Quigley, an informant for the DEA; Kathy Church, Towers’ common-law-wife; and Stephen Canfield, a deputy sheriff for Broward County, Florida. Quigley reiterated testimony he had given at trial concerning narcotics trafficking with Towers and McCord. Church testified that on September 2, 1981, Towers beat her with a gun in a drunken rage because the couple had separated. According to Church, Towers screamed, “I am going to kill you!”, pointed the gun at her and pulled the trigger but the gun did not fire. Canfield informed the court that he had taken Church to the hospital after the beating where she was treated for a broken nose and bruises. Judge Steckler found that Towers had derived substantial income from a pattern of dealing in controlled substances. Further, he found that Towers manifested special skill, knowledge and expertise in the commission of the narcotics offenses because he was able to obtain large quantities of cocaine; he utilized shell corporations to conceal his real estate dealings and investments and to launder the proceeds of his narcotics transactions; and he manifested supervisory control over other members of the conspiracy. The judge concluded that the quantity of cocaine sold in the course of the conspiracy (at least 200 kilograms) demonstrated that Towers is a “professional” in the cocaine business and his role in the conspiracy was that of the “godfather.” Finally, the court found that Towers was dangerous based upon testimony at trial that Towers had threatened to “eliminate” anyone who threatened the ongoing nature of the conspiracy. The court held that, “[t]he Defendant’s attempted homicide of Kathy Church, although discounted by the nature of their dispute, nevertheless shows that the Defendant had the ability and temperament to carry out his threats.” The court concluded that Towers was special and dangerous pursuant to 21 U.S.C. § 849(e)(2) and 849(f) and subject to the enhanced penalties provided in 21 U.S.C. § 849. Towers argues that the government’s presentation of Church’s testimony was an assertion of an independent crime. Citing Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326 (1967), Towers argues that his sentence as a Special Dangerous Drug Offender was punishment for this separate crime, which the government had established by “a mere preponderance of the evidence” in violation of his due process rights. Additionally, Towers contends that imposition of an enhanced sentence based upon the same evidence used to convict him at trial violates the Double Jeopardy Clause. 21 U.S.C. § 849(b) provides that if the district court finds that a person convicted of a felony violation of Title II and III of the Controlled Substances Act (Pub.L. 91-513, October 27, 1970, 84 Stat. 1242, 1285) was also a special dangerous drug offender, then it shall sentence him to imprisonment, “for an appropriate term not to exceed twenty-five years and not disproportionate in severity to the maximum term otherwise authorized by law for such felonious violation.” A drug offender is “special,” if he, “committed such felonious violation as part of a pattern of dealing in controlled substances which was criminal under applicable laws of any jurisdiction, which constituted a substantial source of his income, and in which he manifested special skill or expertise.” § 849(e)(2). A defendant is dangerous, “if a period of confinement longer than that provided for such felonious violation is required for the protection of the public from further criminal conduct by the defendant.” § 849(f). In a hearing to determine whether a defendant is a special dangerous drug offender, the “defendant and the United States shall be entitled to assistance of counsel, compulsory process, and cross-examination of such witnesses as appear at the hearing.” § 849(b). The judge may consider evidence presented at trial and during the sentencing hearing, and information contained in the presentence report. Id. The determination of whether a defendant is a special dangerous drug offender is made upon a preponderance of the evidence. Id. The judge must make findings in the record of the information on which he relied, as well as the reasons for the sentence that he imposed. Id. We first turn to Towers’ contention that Kathy Church’s testimony, offered to prove that he was “dangerous” under § 849(f), violated his due process rights. Contrary to Towers’ assertion that he is being punished for a separate crime, “[t]he dangerous special offenders provisions do not make being ‘dangerous’ a criminal offense; rather they allow a sentencing judge to enhance the punishment for certain individuals convicted — not of being dangerous — but of the underlying felony.” United States v. Davis, 710 F.2d 104, 107 (3d Cir.1983). Moreover, Specht does not hold that due process requires that all findings made by the sentencing judge be based on proof beyond a reasonable doubt. Id. Accordingly, we have held that proving dangerousness by a preponderance of the evidence is constitutional. United States v. Inendino, 604 F.2d 458, 463 (7th Cir.1979); United States v. Neary, 552 F.2d 1184 (7th Cir.), cert. denied, 434 U.S. 864, 98 S.Ct. 197, 54 L.Ed.2d 139 (1977). The Supreme Court held in Specht that in a sentencing proceeding: “Due process ... requires that [the defendant] be present by counsel, have an opportunity to be heard, be confronted with witnesses against him, have the right to cross-examination, and to offer evidence of his own. And there must be findings to make meaningful any appeal that is allowed.” 386 U.S. at 610, 87 S.Ct. at 1212. An examination of the post-trial hearing provided in § 849(b) reveals that § 849(b) provides all of the procedural protections delineated in Specht — i.e., a hearing in which the defendant is entitled to counsel, compulsory process, examination of witnesses, and presentation of evidence on his behalf; furthermore, the section requires the judge to make specific findings on the record. We hold that Towers’ contention that the court’s finding of dangerousness under 21 U.S.C. § 849(f) violated due process is without merit. Finally, we reach Towers’ contention that imposition of an enhanced sentence based upon the same evidence used to convict him at trial violated the Double Jeopardy Clause. Contrary to Towers’ belief, the Special Dangerous Drug Offender statute does not create a separate criminal charge but instead provides for the enhancement of the penalty for the defendant’s criminal conviction. See Inendino, 604 F.2d at 463. A determination that the defendant is “special” under subsection (e) exposes the defendant to an increased punishment for his crime and a finding that the defendant is “dangerous” under subsection (f) determines whether and to what extent a sentence in excess of the maximum for the particular offense is appropriate. Neary, 552 F.2d at 1193-94. The finding that a defendant is a special dangerous drug offender simply allows the sentencing judge to impose a criminal penalty appropriate to the circumstances of the offense and to the history and character of the defendant and is similar to a recidivist statute. Recidivist statutes do not constitute a new jeopardy. Gryger v. Burke, 334 U.S. 728, 732, 68 S.Ct. 1256, 1258, 92 L.Ed. 1683 (1948). We hold that the imposition of an enhanced sentence under 21 U.S.C. § 849 based upon the same evidence used to convict a defendant at trial does not violate the Double Jeopardy Clause. The defendant’s convictions and sentence are Affirmed. . McCord testified that the cocaine had a street value of $44,000 to $46,000 per kilogram. . Davis was sentenced under 18 U.S.C. § 3575 as a special dangerous offender. Very few cases have interpreted 21 U.S.C. § 849, which was patterned after 18 U.S.C. § 3575. The definition of "special” in § 849 differs from the § 3575 definition only in that the underlying felony must be a violation of the Controlled Substances Act. The definition of "dangerous” is the same in both statutes. Additionally, the post-trial hearing to determine the defendant’s status as a special dangerous drug offender is identical to the hearing to determine whether a defendant is a special dangerous offender. Accordingly, we hold that our cases interpreting 18 U.S.C. § 3575(b), (e)(2) and (f) are binding precedent in the interpretation of 21 U.S.C. § 849(b), (e)(2) and (f). Question: Did the court conclude that the jury instructions were improper? A. No B. Yes C. Yes, but error was harmless D. Mixed answer E. Issue not discussed Answer:
songer_attyfee
A
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on attorneys' fees favor the appellant?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". MCA, INC.; Cass County Music Company; Kortchmar Music; April Music, Inc.; BGO Music, Inc.; Sailor Music; Hudmar Publishing Company, Inc.; Coolwell Music; Granite Music Corporation; Brockman Music; Stygian Songs; and Controversy Music, Plaintiffs-Appellees, v. Norma PARKS and Irene Parks, Defendants-Appellants. No. 85-5651. United States Court of Appeals, Sixth Circuit. July 24, 1986. Jerry D. Winchester (argued), Corbin, Ky., for defendants-appellants. Kimberly K. Greene, Wyatt, Tarrant & Combs, Louisville, Ky., Edgar A. Zingman (argued), for plaintiffs-appellees. Before CONTIE and RYAN, Circuit Judges, and BROWN, Senior Circuit Judge. BAILEY BROWN, Senior Circuit Judge. This appeal of a judgment of copyright infringement asks the musical question whether it is as true in 1986 as it was in 1942 that “we ... just need a nickel to feed that jukebox Saturday night”? The district court answered this question in the negative, finding that the cost of operating a jukebox that is the sole source of music in a roller-skating rink now also includes the obligation of the defendants-owners of that skating rink to pay royalties to copyright holders whose songs are played on “that jukebox.” Concluding that the district court correctly construed the copyright statute in finding a violation, we affirm. I Plaintiffs-appellees in this consolidated action are owners of song copyrights and members of the American Society of Composers, Authors and Publishers (ASCAP). The copyright owners sued defendants-appellants Norma, John and Irene Parks (the Parks), the owners and operators of Gerry’s Roller Skating Rink in Corbin, Kentucky (Gerry’s), for infringement of rights granted them under the United States Copyright Act, 17 U.S.C. §§ 101 et seq. (1982), as amended by Pub.L. 94-553, Title I, § 101, 90 Stat. 2541 (Oct. 19, 1976). The facts are not in dispute, and the district court ruled in favor of the copyright owners on cross-motions for summary judgment. The parties agree that the record is sufficiently complete to permit resolution of this case on their respective motions. Gerry's is located inside a building that also houses a concession stand, video games and the allegedly offending jukebox, which contains recordings of, inter alia, the copyright owners’ copyrighted songs. Patrons pay no admission fee to enter the Parks’s building, where they are free to play the video games or jukebox, purchase food or drink, or simply listen to the music. Upon entering the building, patrons may turn right to the concession area (where the jukebox and video games also are located), or left to the booth where skating tickets are sold. The skating area is immediately ahead of the entrance, through a set of double doors. Patrons who wish to skate pay a $2.00 “skating fee,” plus an additional $.50 if they rent skates. Anyone in the building may, by depositing coins, play the jukebox, which is owned and operated by an outside organization. Music emanates from the jukebox itself, as well as from six large speakers that are inside and surround the skating area. Music from the jukebox provides the only accompaniment to skaters, there being no organ or other source of music. Thus, unless someone plays the jukebox, the skaters skate without music, and in her deposition, Norma Parks indicated that on some nights this occurs. After consideration of the parties’ briefs, depositions and affidavits, the court determined that Gerry’s did not qualify for the so-called jukebox exemption from Copyright Act liability. 17 U.S.C. § 116 (1982). This section relieves “the proprietor of the establishment in which the public [jukebox] performance takes place,” 17 U.S.C. § 116(a)(1), from liability for copyright infringement as long as the jukebox “is located in an establishment making no direct or indirect charge for admission.” 17 U.S.C. § 116(e)(1)(B). The court based its decision on the legal conclusion that “the charging of a skating fee constitutes a direct or indirect charge for admission,” reasoning that the use of the jukebox was “closely related” to skating, the “primary purpose” of the establishment. MCA, Inc. v. Parks, Nos. 83-163/84-185, mem. op. (E.D.Ky. June 13, 1985). The district court therefore enjoined the Parks from further use of the jukebox in their establishment until they obtained an ASCAP license and began paying royalties to these plaintiffs. The court also awarded damages ($3,000.00) for past infringements and attorney’s fees ($4,457.50) and costs in connection with the litigation. On appeal, the Parks contend that the district court erred in concluding that their establishment is not entitled to the jukebox exemption, and also challenge the award of attorney’s fees. II The principal issue on appeal is the validity of the district court’s conclusion that Gerry’s is “an establishment making ... a direct or indirect charge for admission.” 17 U.S.C. § 116(e)(1)(B). Since none of the facts are in dispute, the question is one simply of law. The legislative history to the 1976 amendments to the Copyright Act reveals that § 116 represented a compromise between the previous statute and the legislation preferred by ASCAP and its members. The prior statute contained an absolute exemption from copyright liability arising from any use of a jukebox, “unless a fee is charged for admission to the place where such reproduction or rendition occurs.” H.R.Rep. No. 94-1476, 94th Cong., 2d Sess. 1, 112, reprinted in 1976 U.S. Code Cong. & Ad. News 5659, 5727. The House report accompanying the 1976 amendments indicates that “[n]o provision of the present law has attracted more heated denunciations and controversy than the so-called jukebox exemption.” Id. Accordingly, the amended statute retained the exemption only for proprietors of establishments where jukeboxes are played (not for the owners of the jukeboxes), and then only if no “direct or indirect” admission fee is charged. Under current law then, the owner of the jukebox in question is liable for license fees and royalties to the appropriate ASCAP members; but the Parks would be liable only if their “skating fee” were regarded as a direct or indirect .admission charge. The legislative history provides only a little guidance into what Congress meant by “direct or indirect charge for admission.” Explaining the language, the committee report indicates that the exemption would not cover “establishments making cover or minimum charges, and those ‘clubs’ open to the public but requiring ‘membership fees’ for admission.” Id. at 5729. This explanation appears clearly to exempt most establishments such as diners and restaurants, barber and beauty shops, stores and shopping malls, and video and pinball arcades. Such establishments almost never charge “direct” admission fees, and it would render the exemption meaningless to describe the food, gaming or cosmetology charges as “indirect” admission fees. The copyright owners concede as much in their brief. Equally clearly, the exemption would not cover taverns, nightclubs, social clubs or restaurants if they required patrons to pay an admission fee at the door, or if they otherwise added an entertainment “cover” or “minimum” charge to food and drink bills. At least one district court case has imposed jukebox liability on this kind of establishment. Blendingwell Music, Inc. v. Moor-Law, Inc., 612 F.Supp. 474 (D.Del.1985) (owner of bar featuring live music held liable for jukebox use on nights when admission was charged to hear the live band). The case is easily distinguished, because there is no question that the bar in Moor-Law was charging a direct admission fee; however, in the case sub judice, we are not concerned with construction of the “direct” admission charge language in the statute. The copyright owners’ arguments notwithstanding, the “skating fee” at issue plainly is not a “direct” charge for admission, since it is uncontested that persons are admitted to Gerry’s without payment of the fee. Our task, rather, is to devise a standard for measuring when a fee— charged by an establishment that concededly admits persons without charge — should be treated as an “indirect charge for admission.” In formulating this standard, we lack the benefit of prior judicial decisions. We are guided by the legislative history, which clearly indicates that a “cover” or “minimum” entertainment charge at a tavern or restaurant amounts to an indirect admission charge. Likewise, we agree with the Parks that, as the copyright owners concede, charges for food and drink in an ordinary bar or restaurant would not amount to an indirect admission charge. Such an expansive reading of the statute would effectively eliminate the jukebox exemption, a result plainly not contemplated by Congress. The standard for identifying an “indirect” admission charge must take account of these two extremes. If the purported admission fee is more clearly analogous to a simple charge for food or drink, then it will not impose copyright liability on the proprietor of the establishment; however, if the charge is more properly characterized as a cover or minimum, the jukebox exemption will not apply. In other words, when an establishment arguably exempt under § 116 charges for an item, be it food, drink or some service, that charge will constitute an “indirect charge for admission” only if the nexus between the jukebox music and the purported “admission” charge is immediate and direct, so close as to be in the nature of a “cover” or “minimum” entertainment charge. Determining which of these extremes— mere food or drink, or a “cover” charge— the “skating fee” charged by Gerry’s most closely resembles is no easy task. Like a restaurant, Gerry’s provides, for a charge, an item desired by its patrons, who pay nothing to enter the establishment. However, the copyright owners argue, and the district court concluded, that this case can be distinguished from the restaurant case because here, the music is “closely related” to the business of the skating rink. The argument must go: while consumers choose to patronize a restaurant or bar based on the cost and quality of food and drink, service and ambiance, consumers generally choose to patronize a skating rink to skate to music. This argument would not necessarily be in disagreement with Justice Holmes’s observation, made in construing an earlier incarnation of the Copyright Act, that patrons of a restaurant often make their choice seeking “a repast in surroundings that to people having limited powers of conversation, or disliking the rival noise, give a luxurious pleasure not to be had from eating a silent meal.” Herbert v. Shanley, 242 U.S. 591, 595, 37 S.Ct. 232, 233, 61 L.Ed. 511 (1917). But as we have already observed, when a court seeks to characterize a fee as an indirect admission charge, the nexus between the purported “admission charge” and the music on the jukebox must be closer than a simple interest in listening to music while dining or drinking. We are satisfied that such a nexus exists in this case. Although there was testimony that on occasion, patrons at Gerry’s have skated without the accompaniment of music from the jukebox, skating at a skating rink, like dancing at a dance hall, is an activity traditionally and usually associated with musical accompaniment. It seems undeniable that it was the well-known preference of skaters for such accompaniment that led the Parks to position all six of the jukebox’s external speakers immediately around the perimeter of the skating area, with only the speaker that is a physical part of the jukebox itself even arguably aimed at providing music outside the skating area. Under these circumstances, we think the nexus between the music and skating at Gerry’s may not be “essential,” as argued by the copyright owners; but it is far closer than any similar relationship between music and dining at a tavern or restaurant. There is little doubt that the absence of jukebox music would more dissuade the average roller skater from attending Gerry’s than the average restaurant goer from visiting a similarly silent eating establishment. Because the close nexus between the skating charge and the music at Gerry’s so nearly resembles that between a “cover” charge and the entertainment “covered” by that charge, we hold that the “skating fee” charged by Gerry’s constitutes an “indirect charge for admission” within the meaning of the statute. It follows that the district court correctly found the Parks to be in violation of the Copyright Act. III The Parks also argue that even if the judgment against them stands, they should not have been required to pay over $4,000.00 in attorney’s fees. The Copyright Act permits a trial court, in its discretion, to award attorney’s fees to the prevailing party. 17 U.S.C. § 505 (1982). While the statute on its face imposes no additional requirements, the Ninth Circuit has held that attorney’s fees may be awarded under the Copyright Act only upon a finding of bad faith. Cooling Systems and Flexibles, Inc. v. Stuart Radiator, Inc., 777 F.2d 485, 498 (9th Cir.1985). Other circuits are not in agreement, and the Eleventh Circuit has specifically held that the plain statutory language imposes no such requirement. Original Appalachian Artworks, Inc. v. Toy Loft, Inc., 684 F.2d 821, 832 (11th Cir.1982). See also Lieb v. Topstone Industries, Inc., 788 F.2d 151, 154-56 (3d Cir.1986) (noting circuit split on necessity of finding bad faith, and suggesting that district courts exercise “an even-handed approach,” relying on several factors including frivolousness, motivation, objective unreasonableness, and the need in particular circumstances for compensation and deterrence). The proper standard for an award of an attorney’s fees is not, however, before us in this case. At oral argument, counsel for the Parks was repeatedly questioned as to whether he contended that some “bad faith” .standard should be adopted by this court: The Court: I guess we can glean from what you’re saying that they [copyright owners] have to show bad faith or something more than just that you’re wrong in order to get fees? Counsel: No, they can show we’re wrong____ ****** The Court: Well then are you conceding that if they win on the merits, they also win on the attorney’s fees? Counsel: They should be entitled to some, sort of attorney’s fees. The Court: Alright, that solves that. ****** Counsel for the Parks further conceded that he did not challenge the reasonableness of the awards in this case. Rather, counsel admitted that his only quarrel was with the statutory scheme, which, he argued, might permit copyright owners, by repeated visits to an offending establishment, to aggregate a large number of “violations,” and thereby increase their damages and attorney’s fees for essentially the same violation. However, counsel did not even contend that such compounding of violations occurred in this case. Thus, we need not consider whether such action would call for some narrowing of the attorney’s fees portion of the statute. In light of these concessions from the Parks’s counsel, we need not, and expressly do not, reach the question of the proper standard to be applied by a trial court in awarding attorney's fees under § 505 of the Copyright Act. While the case might otherwise have presented an appropriate vehicle for an answer to this question, our adversary system of justice forbids us to resolve issues not contested by the parties. Since the Parks have conceded the propriety of this award of attorney’s fees if the trial court correctly found a violation; and since we have already determined that the trial court was correct in this regard, we hold that the award of attorney’s fees was proper under the circumstances of this case. Accordingly, we Affirm the judgment of the district court in all respects. . A1 Stillman and Paul McGrane, "Jukebox Saturday Night” (1942). . ASCAP is a performing rights licensing organization that licenses users of copyrighted music and distributes royalties to its members, including these plaintiffs. See generally Broad cast Music, Inc. v. Columbia Broadcasting System, Inc., 441 U.S. 1, 4-6, 99 S.Ct. 1551, 1554-55, 60 L.Ed.2d 1 (1979) (describing licensing and royalty procedures). . The original complaint named as defendants only John and Norma Parks. On April 20, 1984, the plaintiffs filed an amended complaint adding Irene Parks as a party defendant. Claims against defendant John Parks were dismissed on September 11, 1984. . Although the Fourth Circuit, in an unpublished decision, has imposed copyright liability on essentially identical facts, BGO Music, Inc., v. Pee Bee Investments, Inc., 785 F.2d 304 (4th Cir.1986), aff’g No. 83-1166, slip op. (S.D.W.Va. Feb. 1, 1985), the rules of our court discourage us from treating that decision as authority. See Sixth Circuit Rule 24(b). Question: Did the court's ruling on attorneys' fees favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_state
54
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". Ralph H. SEIPEL, d/b/a Investors Surety Company, Appellant, v. SECURITIES AND EXCHANGE COMMISSION, Appellee. No. 12557. United States Court of Appeals District of Columbia Circuit. Argued Oct. 24, 1955. Decided Nov. 3, 1955. Petition for Rehearing Denied Feb. 29, 1956. Mr. Charles F. O’Neall, Washington, D. C., with whom Mr. Francis C. Brooke, Washington, D. C., was on the brief for appellant. Mr. William H. Timbers, Gen. Counsel, Securities and Exchange Commission, with whom Mr. David Ferber, Sp. Counsel, Securities and Exchange Commission, was on the brief for appellee. Messrs. Leo A. Rover, U. S. Atty., and Lewis Carroll, Asst. U. S. Atty., also entered appearances for appellee. Before EDGERTON, Chief Judge, and PRETTYMAN and WILBUR K. MILLER, Circuit Judges. PER CURIAM. Alleging that Ralph H. Seipel, a registered investment adviser, had violated § 206(1, 2) of the Investment Advisers Act of 1940, 15 U.S.C.A. § 80b-6(l) and (2), and was about to continue to do so, the Securities and Exchange Commission sued in the United States District Court for the District of Columbia to enjoin the continuance of the acts and practices said to constitute such violations. The District Court entered a permanent injunction from which Seipel appeals. The record fully justified the action of the District Court. Affirmed. Question: In what state or territory was the case first heard? 01. not 02. Alabama 03. Alaska 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. Florida 11. Georgia 12. Hawaii 13. Idaho 14. Illinois 15. Indiana 16. Iowa 17. Kansas 18. Kentucky 19. Louisiana 20. Maine 21. Maryland 22. Massachussets 23. Michigan 24. Minnesota 25. Mississippi 26. Missouri 27. Montana 28. Nebraska 29. Nevada 30. New 31. New 32. New 33. New 34. North 35. North 36. Ohio 37. Oklahoma 38. Oregon 39. Pennsylvania 40. Rhode 41. South 42. South 43. Tennessee 44. Texas 45. Utah 46. Vermont 47. Virginia 48. Washington 49. West 50. Wisconsin 51. Wyoming 52. Virgin 53. Puerto 54. District 55. Guam 56. not 57. Panama Answer:
songer_opinstat
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. UNITED STATES of America, Plaintiff-Appellee, v. John J. NERONE, a/k/a “J.J.,” Victor Joseph Seppi, a/k/a “Vic,” Marvin Martin Hornstein, a/k/a “Pete,” Leonard Vieth, Arthur Gentry, Donald Lee Hornstein, Donald K. Bradley, a/k/a “Moose,” Wilbur Y. Caples, a/k/a “Butch,” Laverne Jamerson, Reubin Helfer, Larron Joe Schellinger, a/k/a “Jo-Jo,” and Dominic Joseph Greco, Sr., Defendants-Appellants. Nos. 76-2181 — 76-2189. United States Court of Appeals, Seventh Circuit. Argued June 15, 1977. Decided Sept. 29, 1977. Rehearings and Rehearing En Banc Denied Dec. 15, 1977. John J. Casey, Springfield, Ill., Charles A. Bellows, Chicago, Ill., Charles J. Gramlich, Walter H. Kasten, Springfield, Ill., Gerald M. Werksman, Chicago, Ill., Grady E. Holley, Thomas F. Londrigan, Springfield, Ill., Giles A. Franklin, Chicago, Ill., for defendants-appellants. Michael W. Farrell, Paul J. Brysh, Attys., U. S. Dept. of Justice, Washington, D. C., Gerald D. Fines, U. S. Atty., Elijah Richardson, Asst. U. S. Atty., Springfield, Ill., T. George Gilinsky, Washington, D. C., J. Kenneth Lowrie, Dept. of Justice, Chicago Strike Force, Chicago, Ill., for plaintiff-appellee. Before FAIRCHILD, Chief Judge, and PELL and BAUER, Circuit Judges. PELL, Circuit Judge. On September 24, 1975, a seven-count indictment was returned in the Southern District of Illinois, charging thirteen individuals with violations of the federal statutes relating to illegal gambling and racketeering. The twelve appellants have filed timely notices of appeal from final judgments of convictions on Counts I, II, III, VI and VII of the indictment. These consolidated appeals present for review approximately fourteen issues, demonstrating once again the direct relationship between the proliferation of parties and issues in a conspiracy case. The factual and procedural context of these appeals is both complicated and subtle. No useful purpose will be served by setting forth factual details which are germane only to issues which our disposition of the case eliminates from formal consideration. Accordingly, this opinion will refer only to those facts pertinent to our adjudication of the case. Additionally, we must note that the Government and several appellants have interpreted the conspiracy count of the indictment as charging an offense which in its literal language it does not clearly state. Our summation of the indictment will set forth the theory of the indictment advanced by the Government, but in a subsequent part of the opinion we will discuss more fully the legal problems engendered by the parties’ confusion regarding the criminal charge actually made in that conspiracy count. We turn to the indictment. Count I charged that from approximately September 1, 1974, to May 19, 1975, appellants Nerone, Seppi, Marvin “Pete” Hornstein, Gentry, Donald Hornstein, Bradley, Capies, Jamerson, and Heifer had participated in the operation of an illegal gambling business in violation of 18 U.S.C. § 1955. Count II charged that appellants Seppi, Vieth, Gentry, Schellinger, and both Horn-steins had participated in the use of extortionate means to collect a gambling debt in violation of 18 U.S.C. § 894. Count III charged that Marvin “Pete” Hornstein had used a deadly weapon in a forcible assault upon a federal law enforcement officer engaged in the performance of his duties, in violation of 18 U.S.C. §§ 111 and 1114. Count VI charged that appellants Nerone and Seppi had conducted the affairs of Maple Manor, Inc., doing business as Cottonwood Cove Estates Mobile Home Park, an enterprise engaged in and the activities of which affected interstate commerce, through a pattern of racketeering activity and/or through collection of an unlawful debt, in violation of, inter alia, 18 U.S.C. § 1962(c). Finally, as stated in the Government’s brief to this court, Count VII charged all of the appellants with conspiracy to conduct the affairs of Maple Manor, Inc., an enterprise affecting interstate commerce through a pattern of racketeering activity in violation of 18 U.S.C. § 1962(d). Testimony adduced at trial revealed that Robert Fox had conducted a weekend “casino gambling operation” involving dice and card games in the basement of his modular home. This particular mobile home was located on Lot 2 of the Cottonwood Cove Estates Mobile Home Park, which was operated by Maple Manor, Inc. The president and major stockholder of the corporation was Blanche Fox, mother of Robert Fox. The secretary of the corporation was appellant Seppi. The board of directors was composed of Blanche Fox, Seppi, and Ner-one. Appellant Nerone had signed a form purchase agreement on April 21,1973, for a three-bedroom Regent mobile home, manufactured in Indiana, from Mobile World, Inc., whose offices were located in Springfield. The purchase agreement bore the notation “For Resale,” set forth a tax and a dealer number, and indicated that Nerone had executed the agreement on behalf of Maple Mobile Home Sales. Cash payment of the total sum mentioned in the purchase agreement was made two days later, and the Regent mobile home presumably was placed on Lot 88 of Cottonwood Cove. Many other residents of Cottonwood Cove had likewise purchased mobile homes manufactured in states other than Illinois. The trial testimony established that the weekend dice and card games conducted in Fox’s basement were conducted, with three exceptions, every Saturday and Sunday from early September 1974 to May 1975. The gambling in Fox’s basement was discontinued in May 1975 because the Fox home was under surveillance by local law enforcement officials. Appellants Donald and Marvin Hornstein conducted a weekend card and dice gambling operation under the name “Where Else” at the Palmer Hotel at Fifth and Jefferson on two weekends in May 1975. It was raided on May 19, 1975. The appellants admitted at trial that the weekend games were illegal under Illinois law. The testimony of Government witnesses also established that from September 1974 to May 1975 appellants Nerone and Seppi worked in Fox’s basement dealing blackjack, running the dice game, and collecting and paying out money. Appellant Jamerson throughout this period also assisted the operation of the games by working at the dice game and by running errands. Appellant Bradley ran the dice game for most of the time when Fox’s casino operation was functioning, and appellants Capíes and Heifer each dealt blackjack and played poker for a few months while the illegal gambling was in operation. Appellant Gentry never gambled or operated any games in Fox’s basement but did on two or three occasions open an inside door in Fox’s basement in order to let people enter. Appellants Donald and Marvin Hornstein were not shown to have been actively involved in the casino when it was operated at Fox’s basement, but there was circumstantial evidence, discussed hereinafter, which the Government utilized to support its theory that the “Where Else” gambling enterprise actually operated as an integral part of the Fox casino. Law enforcement officers began investigating Fox’s gambling operation in late 1974, and by early 1975 Steven Salmieri, a special agent of the Federal Bureau of Investigation (FBI) was working on the investigation. On February 13, 1975, he met with Donald Nance, who was to meet with Fox that morning to pay off a four hundred dollar gambling debt. Fox and Nance had had several telephone discussions concerning the debt, in one of which Fox threatened Nance, who thereupon said he would meet Fox “[a]t the Attorney General’s Office.” At 10:00 a. m. that morning, Salmi-eri and Nance went to the latter’s health spa, where they awaited the planned meeting with Fox. At approximately 10:15 a. m. Fox, together with the six men charged in Count II, arrived at the health spa in two cars. Appellants Schellinger and Seppi, who were the drivers, remained outside the spa. Fox, the Hornsteins, Gentry, and Vieth went inside. Upon entering the inner room where Salmieri and Nance were waiting, Fox said, in reference to Nance’s earlier telephonic comment, “what was all this about the Attorney General?” Marvin Hornstein then asked Salmieri why the latter’s hand was in his pocket. Hornstein then took a revolver from his belt and held it close to Salmieri’s head. Fox threw Salmieri against a wall and “frisked” him, finding a gun that Agent Salmieri was carrying. Salmieri and Nance proclaimed that they wanted to pay Fox. As Salmieri approached a desk drawer, Fox said that if Salmieri went near the drawer Fox would kill him. When Salmieri later put his hand in his pocket to get a cigar, Fox said “Put your hands down or I’ll knock your teeth out.” After Fox swung at Salmieri with a gun and missed, Marvin Hornstein hit him in the ribs. Fox inquired as to Salmieri’s identity and the fact that he was carrying a gun. The agent told Fox that he was a friend of Nance’s from St. Louis. Fox then told Nance to “forget the money.” Except on the occasions when Salmieri and Nance brought up the subject, nothing was said during the entire encounter regarding the collection of the debt. During the entire incident, none of the appellants asked Nance for any money. On each occasion that agent Salmieri brought up the topic of paying the money, those appellants who had come into the back room responded that the money didn’t make any difference and that they didn’t want it. Fox then told Nance that they were going to take Salmieri “for a ride.” As Salmieri began to walk out of the back room of the health spa, Fox became excited and shouted, “Shoot him, shoot him. Leonard [Vieth], grab him.” At that point the agent was going out the front door and Vieth was with him. As Salmieri went out, he put his hands up. Vieth then said, “Come on, we better go back inside.” Vieth then grabbed the agent by the arm. After going back in, the agent was told to spread out on the floor. Nance and his. business partner were also in the front on the floor. After Fox told them to walk out of the health spa but before they had a chance to get out, Marvin Hornstein came to the front of the room where Salmieri remained on the floor, cocked the gun, put it to the agent’s head, and said he was going to “blast” him. Salmieri and Nance were then taken outside, but Fox and his confederates left without them. Salmieri and Nance then returned to the health spa. At 11:45 the same morning, Fox telephoned Nance and apologized for the incident at the health spa. He asked Nance to come out to the Cottonwood Cove, with Salmieri, to repay the debt. That afternoon, Nance and Salmieri visited Fox’s mobile home. Appellants Donald Hornstein, Nerone, Seppi, Capíes, Jamerson, and Gentry were present. Nance paid Fox, and Fox showed Salmieri his basement casino and invited him to return to gamble. When Salmieri requested the return of his gun, Fox replied that Marvin Hornstein had it and that they would try to get it back. On February 22, 1975, Agent Salmieri arrived at Cottonwood Cove and went into the recreation hall, which was adjacent to Fox’s mobile home, where a party was in progress. There he found Gentry and told him that he had come for “a littlé action.” Gentry, remarking that “[tjhey’ve got a pretty good game,” took Salmieri next door to Fox’s mobile home. He knocked on a basement door containing a two-way mirror, and they were admitted. Inside Salmi-eri observed seventy to eighty people. Fox told him that the minimum bet was five dollars and the maximum was one hundred dollars, but that with approval a player could bet more, provided he remained at the higher level throughout the night. Salmieri got into a blackjack game in which appellant Nerone was the dealer. In the course of the evening the house took in between four and five thousand dollars at the blackjack table alone. Salmieri observed Fox approve loans of up to $700 for customers at the blackjack table, and cash a four or five hundred dollar check for another customer. Salmieri also observed appellants Seppi, Capíes, Bradley, and Jamerson working at the dice table. Throughout the night appellant Gentry was “watching” the door. On March 9, 1975, Agent Salmieri returned to the casino with John Meduga, an agent of the Illinois Bureau of Investigation. They gambled for three or four hours, and during that period Salmieri observed twenty-five or thirty people in the casino. He also observed Fox lend five hundred dollars each to one customer who already owed him $3,000 and to another who was already $2,000 in debt. In the course of the night Nerone and Capíes dealt at the blackjack table, and Seppi, Capíes, Bradley, and Jamerson ran the dice game. On March 23, 1975, Salmieri and Meduga were again in the casino where they observed Nerone and Heifer dealing blackjack and Seppi and Bradley operating the dice table. On this occasion Marvin Hornstein was present in the basement. The two agents returned once more to the casino on April 13, 1975. Appellant Heifer was dealing blackjack that night, and appellants Seppi and Nerone were operating the dice table. That evening Salmieri told Fox that earlier in the day he had wanted to place a bet on a baseball game but was not able to do so because he did now know any bookies in town. Fox replied that any time Salmieri wanted to get any action in, he should let him know and Fox would cover it. Fox then gave Salmi-eri a telephone number for placing bets, but warned him not to call the number from out of state because he did not want the FBI to get involved. Testimony of the Government witness Charles “Burrhead” Albright established that Nerone would take line information and accept bets on the telephone. Albright was also present during numerous conversations between appellants Nerone and Greco regarding line information, and he had heard Fox instruct Nerone to “lay-off” bets to Greco. Several weeks after Fox gave Salmieri the telephone number, the agent called and asked for Nerone. Salmieri attempted to place bets on a Spirits basketball and Cardinal baseball game, but Nerone would not accept the bets because he did not have “the line” on those games. However, Salmieri did place a bet on a National Basketball Association game between Washington and Buffalo. Nerone also gave Salmieri two additional telephone numbers. On the evening of May 11, 1975, Agents Salmieri and Meduga went to the “Where Else” at the Palmer Hotel. Initially, they had gone to the recreation hall at Cottonwood Cove. There, they found a sign which read “call Bob [Fox] or John [Nerone]” and which listed a telephone number. Salmieri dialed the number and reached Nerone, who said “[t]here’s a little problem in the area. We have moved to the Palmer Hotel.” At the hotel, the agents observed Nerone, Sep-pi, Bradley, and Donald Hornstein take turns running the dice table. Appellant Heifer volunteered to start a blackjack game, and Marvin Hornstein was acting as a lookout at the door. The house took in roughly twenty-four hundred dollars that evening. On May 17, 1975, there was some form of gambling at the Cottonwood Cove. Agent Nancy Lewis, working underground for the Illinois Bureau of Investigation, had been conducting a surveillance at the Cottonwood Cove since December 26, 1974. She kept memoranda of her observations. Her reports indicated that she had observed thirteen cars at Fox’s trailer at 1:40 a.m. on May 17. Almost five hours later, at 6:05 a.m., she observed that the cars of six individuals known to her were parked at Fox’s trailer. On May 18, 1975, law enforcement officers raided the “Where Else.” Agents Salmieri and Meduga were present on that evening and observed appellants Nerone, Seppi, Bradley, and the two Hornsteins take turns running the dice table at the hotel. On the same night that the Palmer Hotel was raided, FBI agents, acting pursuant to a search warrant, raided Fox’s mobile home and found bookmaking records in the lining of one of Fox’s coats. These records pertained to the same transactions as did gambling papers found on Nerone in the raid at the hotel. In Fox’s home, the agents found baseball schedules of a type commonly distributed by bookmakers to their customers, a “baseball calculator” or device similar to a slide rule used by bookmakers to calculate the amount of payoffs in baseball parley bets, and dice which had been altered to increase the likelihood that certain sides would come to rest face up. I The first issue in this case pertains to the jurisdictional basis for Count I. Appellant Heifer argues that there was no proof that the weekend gambling in the Fox basement met the jurisdictional requirements of 18 U.S.C. § 1955. Heifer observes that the statute is directed at syndicated gambling having an effect upon interstate commerce and the national interest. He further contends that the gambling reflected in this record is not the type of gambling which falls within the purview of the statute and that the facts of this case illustrate an effort by the Federal Strike Force to create a federal offense from essentially local gambling activity. Heifer points to the Government’s use of such nomenclature as'“casino operation” the participants of which were denominated “employees” as constituting the substitution of objurgatory terminology for proof. He further insists that the Government found it necessary to confuse the long standing and continuous bookmaking of appellants Nerone and Greco with the games of chance in which the other nine appellants participated. Heifer also claims, as a corollary to the jurisdictional argument, that his conviction on Count I must be reversed because of variance and erroneous instructions. Bookmaking was not alleged in Count I. Thus, Heifer sets out a straightforward argument invoking the concept of variance. He submits that the Government cannot charge ten defendants with games of chance, i. e., “cards and dice,” and then claim that instead they have proven bookmaking by two defendants to meet the statute’s jurisdictional requirements. Heifer asserts that the Government compensated for an obvious variance and absence of proof by submitting instructions, given by the court over the appellants’ objections, which directed the jury to consider the bookmaking activity to determine if the games of chance were in substantially continuous operation for a period in excess of thirty days. Putting aside for the moment the question of erroneous instructions, the core question as to all appellants convicted under Count I clearly relates to proof of “substantially continuous” operation in excess of the statutory period. On the present record, proof of the five-man requirement is sufficient to withstand attack. Reviewing the evidence in the light most favorable to the Government, we hold that Fox, Nerone, Seppi, Bradley and Capíes were clearly shown to have conducted, financed, managed, supervised, directed or owned all or part of an illegal gambling business. If the evidence similarly establishes that the thirty-day requirement was met, the illegal gambling business disclosed by this record was subject to federal criminal prosecution. We recognize that Congress “has placed strict limits on those gambling operations which warrant federal intervention.” Altese, supra at 109 (Van Graafeiland, J., dissenting). Nonetheless, the purpose of § 1955 is to prohibit illegal gambling of such a size as would affect interstate commerce. See United States v. Hawes, 529 F.2d 472, 478 (5th Cir. 1976). See also United States v. McCoy, 539 F.2d 1050 (5th Cir. 1976). Still, the purpose of § 1955 is not to subject almost any small gambling operation to federal regulation. See United States v. Bridges, 493 F.2d 918, 922 (5th Cir. 1974). We can readily agree with the Fifth Circuit that a broad construction of § 1955 would not always further the Congressional purpose, see id., and that “the contours of federal jurisdiction under § 1955 have not yet been fully delineated.” McCoy, supra at 1058. Congress, however, in final analysis, has made a judgment that gambling operations involving more than five people and operating in excess of thirty days affect interstate commerce. This court has no power to excise as trivial, an individual instance falling within the defined class which is within the reach of federal power. Cf. Maryland v. Wirtz, 392 U.S. 183,192-93, 88 S.Ct. 2017, 20 L.Ed.2d 1020 (1968). We agree with the Government that the thirty-day requirement was satisfied in this case. More accurately stated, we think that there was sufficient evidence from which the jury could find that the dice and card games in Fox’s basement were in “substantially continuous” operation for the statutory period. The evidence showed that, with but three exceptions, Fox’s casino was in operation every weekend between the beginning of September 1974 and early May 1975. The evidence thus showed an established pattern of operation at least two days every week for approximately eight months. Simple arithmetical calculations would support a jury inference that the games took place on more than thirty individual calendar days. Moreover, there was testimony that sometimes gambling commenced on Friday nights and continued into the succeeding Monday. Larry Dellomo, a salesman for Mobile World, Inc., testified that he had participated in gambling at Fox’s basement approximately fifteen times, usually on Saturday or Sunday nights, during the period charged in the indictment. William Roscetti, a dentist, also testified that he had gambled in Fox’s basement from five to eight times during the same period. The appellants do not appear to controvert the inference that gambling occurred on more than thirty separate calendar days. Their argument touches instead on the requirement of continuity. We note, however, that Congress did not purport to require absolute or total continuity in the gambling operations. Thus, we agree with the Government’s contention that it would be unreasonable to construe the term “substantially continuous” as meaning every day. There was ample evidence for the jury to conclude that what was involved here was a gambling casino which operated substantially continuously by virtue of being open for business almost every weekend with consistent regularity. We do not read the Congressional intent as requiring proof of an operation occurring substantially around-the-clock but rather one that was operated upon a schedule of regularity sufficient to take it out of the casual non-business category. The proof here met the test. We further agree that Heifer’s allegation that the Government used the bookmaking activity as a means of meeting the requirements of the statute is without substance. The evidence of continuity in Fox’s casino operation needed no assistance but was self-sufficient for the purpose. As to the claimed instruction error, the court’s definition of gambling as including “bookmaking” merely set forth a portion of the statutory language. See Appendix. We do not interpret the instruction as directing the jury to consider that particular form of illegal gambling in determining the substantial continuity of the casino operation. Indeed, a distinct instruction expressly left for the jury’s determination that significant factual question. Heifer’s argument that the instruction improperly bolstered the assertion of federal jurisdiction accordingly must be rejected. We affirm his conviction on Count I. II Appellants Gentry and the Horn-steins similarly contend that the evidence was insufficient to sustain their convictions on Count I. The Government responds, as to Gentry, that his performance of the function of “doorman” demonstrated that he was part of the casino operation. In so arguing, the Government asserts that both Charles Albright and Agent Salmieri testified that Gentry “guarded” the door to the casino. As to the Hornsteins, the Government asserts that there was ample evidence that the Palmer Hotel was merely a new location for the casino operation which had been operating at ‘Cottonwood Cove. The Government specifies particularly the note listing a Palmer Hotel telephone number and Nerone’s assertion to Agent Salmieri that they had “moved” to the Palmer Hotel. Close review of the trial transcript does not support the Government’s theory that Gentry guarded the casino door. Although Salmieri did give Gentry’s name when asked whether he had seen anyone “guarding” the door area, he never did state expressly that Gentry “guarded” the door, nor really, and more to the point in view of the conclusionary nature of the word “guard,” did he testify as to activities by Gentry which would appear to be guarding. Likewise, Albright’s testimony did not support that characterization. Albright, who was a star witness for the prosecution, stated that Gentry would “[t]ake care of the door a little bit” and that he might “have been a body guard, I don’t know.” Al-bright also made a reference to the fact that Gentry had opened both doors to Fox’s basement. The prosecutor interpreted this language as pertaining to a guarding function, going so far as to state in closing argument, mistakenly in our view, that Al-bright had stated, “Well, he guarded both of them [the doors].” (Emphasis supplied.) Our examination of the trial transcript discloses no such statement. Without regard to Gentry’s complaints about persistent prosecutorial misstatements of the evidence, we note that numerous witnesses established that Gentry never gambled or assisted in the operation of any of the games. Gentry usually sat in the bar area and tried to sell Indian jewelry. We are satisfied that the Government has failed to establish that he was an employee or a participant in the casino operation. Accordingly, his conviction on Count I of the indictment is reversed. As to the Hornsteins, the Government concedes that they were not shown to have been actively involved in the casino when it was operated at Cottonwood Cove. The Government asserts, however, that the Hornsteins clearly worked for it at the Palmer Hotel. Apart from the note and Nerone’s statement, the Government pinpoints the evidence that Fox, Nerone, Sep-pi, Bradley and Albright “worked” at both locations and Agent Meduga’s testimony that the operation at the “Where Else” was “just about identical” to that at Fox’s mobile home. It also points to the evidence of Nerone’s bookmaking at the hotel, conceding, however, that this evidence was not used as evidence of the illegal gambling business charged in Count I. The Government discounts the significance of the considerable testimony that the Hornsteins owned the gambling operation at the Hotel, that the games there operated were “head-to-head” rather than “house” games (as in Fox’s basement), and that the Hornsteins themselves, without financial input from Fox and Nerone, were responsible for maintaining a sufficient reserve of funds to cover the losses which might occur at the “Where Else.” By discounting the evidence tending to show that the Hornsteins’ operation was separate and independent, of course, the Government adheres to its basic theory that the “Where Else” was operated for the approximate three week period in May 1975 in conjunction with, and as an “alternative gambling location” for, the illegal gambling business run by Fox and his associates. The key circumstantial evidence to support the inference that the games were moved to the Palmer Hotel as an accommodation to and to facilitate Fox’s operation was the fact that a note was found at the recreation hall at Cottonwood Cove telling Fox’s patrons to go downtown where some gambling was occurring. While downtown, various defendants, who were involved in Fox’s games, operated the “stick,” served liquor and performed other minor tasks at the Fifth Street location. However, there was substantial direct and circumstantial evidence presented both by the Government and the appellants which militates against any inference that there was a connection between the two gambling operations. Significantly, trial testimony, unrebutted by the Government and coming from its own witnesses, indicates that there was gambling at the Cottonwood Cove, including the playing of dice, two days before the raid on Fifth Street. The surveillance notes of IBI Agent Lewis showed the presence of a dozen or more cars around Fox’s establishment in the early morning hours. These automobiles belonged to persons who were known to frequent Fox’s basement for purposes of gambling. Such evidence, albeit circumstantial, undercuts the Government’s theory that the Palmer Hotel was an alternative location. We shall have occasion hereinafter to comment upon the manner in which the Government has confused its theory of the case with inferences properly to be drawn from the evidence. At this point, we need only state that the trial testimony, measured in the light of the reasonable doubt standard and in conformity with Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942), is not sufficient to convict the brothers Homstein of a violation of 18 U.S.C. § 1955. Thus, we need not consider Marvin Hornstein’s claim that the trial court’s admission into evidence of his brother’s post-conspiracy statements to FBI agents prejudiced his defense to the § 1955 count. Finding no reversible error as to the defendants convicted under Count I, with the exceptions noted of Gentry and the two Hornsteins, we affirm all other convictions under this Count. Ill Appellants Seppi, Vieth, Gentry, Schellinger, and the Hornstein brothers present a variety of arguments aimed at showing that the convictions on Count II must be reversed. Allowing for the variations in formulation, the essential thrust of the common sufficiency of the evidence argument is that the Government has not proved that these six appellants knowingly participated in the use of extortionate means to collect or attempt to collect a debt. The first prong of the argument is that the evidence abundantly shows that the sole reason for Fox’s visit to the health spa was to stop Nance from going to the Attorney General, so that the collection of Nance’s debt was not really involved in the incident. We think that the jury could properly infer that all the appellants went to the health spa for the purpose of attempting to collect a debt. The second prong of the argument relates to knowledgeable participation in the extortion episode. The Government conceded at oral argument that its case, in this respect, is dependent on Albright’s testimony. According to that testimony, he had been in Fox’s mobile home at around ten o’clock. He further testified that Fox, Seppi, Vieth, Schellinger and Donald Hornstein were present. As Albright entered, Fox was calling Gentry on the phone. Albright heard Fox say that they were going down to the health spa to put muscle on a guy. After Gentry arrived, there was more conversation, which Albright heard. He stated that Fox had mentioned something to do with the reason they were going to put muscle on the guy. The record discloses this colloquy: Q. What did he [Fox] say the reason was? A. He [Nance] wasn’t going to pay off and he [Fox] was going down and tear the place up or get his money. Immediately after this conversation, according to Albright, the appellants left for the health spa. The appellants quarrel with Albright’s version of what happened in or around Fox’s mobile home on the morning of February 13, 1975. Nevertheless, the jury was entitled to credit Albright’s version. Moreover, there was a tape recording of the incident itself played at the trial. Although that recording does tend to show that Nance’s remark about the Attorney General and Salmieri’s possession of a gun were factors when the confrontation occurred, it also established that the $400 debt played an important role. Thus, the tape contains the statement, presumably that of Fox, to this effect: We don’t care about the money now. I’m not forgetting. The money’s no object now. [Emphasis added.] That Fox’s associates lost interest in collecting the money because of mounting anger arising from Salmieri and Nance being armed or because of Nance’s earlier remark does not mean that there was no attempt to collect an extension of credit. Albright’s testimony inculpated all of the appellants charged with the extortion. Absent a determination that Albright’s version was completely incredible, which we cannot make on the present record, there was ample evidence from which the jury could find a violation of § 894. We note that the extortion incident was one of the overt acts charged in the conspiracy count of the indictment. We therefore consider at this point the problem of the claimed use of post-conspiracy admissions by the admission of the statements of Schellinger and Gentry which, speaking generally, indicated that they knew that the purpose of the visit to the health spa was to recover a debt owed by Nance to Fox. The Government’s assertion that the statements “implicated no one but themselves” may be arguably incorrect. Nonetheless, the statements did not directly implicate any of the other appellants charged in Count II. Therefore, any error of admitting the statements did not reach constitutional proportions under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). See United States v. Fellabaum, 408 F.2d 220, 225 (7th Cir. 1969); United States v. Guajardo-Melendez, 401 F.2d 35 (7th Cir. 1968). Moreover, the trial court correctly instructed the jury as to the limited purposes for which the Schellinger and Gentry statements could be used. Inasmuch as the jury was so instructed and in view of Albright’s testimony showing that the other appellants knew the purpose of the visit to the health spa, we conclude that any error in admitting the post-conspiracy statements was harmless. IV Appellant Marvin Hornstein contends that the instructions pertinent to Count III, when taken together, were prejudicial to his theory of defense. His specific instruction challenges are somewhat “straw-grasping” in nature, but Hornstein presents a very substantial challenge to the manner in which all objections were handled. That matter deserves extended comment. Hornstein concedes that the trial court informed the appellants of its proposed instructions prior to closing arguments, but contends that Rule 30, Fed.R.Crim.P., was violated in that the defense was not given an opportunity to inform the court of its objections or to request permission to withdraw instructions which they had originally tendered, prior to arguments to the jury and submission of the court’s instructions to the jury. Hornstein observes that the reviewing court sanctions the practice of promoting potential error in jury trials when it allows the trial courts to engage in a policy of denying the defendant the right to make objections to instructions prior to submission to the jury. We agree with appellant Hornstein that both the letter and the spirit of Rule 30 were violated in this case. The record establishes that there was an informal instructions conference prior to argument but that the trial judge put off the formal statement of objections until after the jury began its deliberation. This court stated in United States v. Hollinger, 553 F.2d 535, 543 (7th Cir. 1977), as follows: If, however, the judge conducts only an informal conference prior to the giving of the charge as to what requests will be granted or denied and what instructions the judge intends to give, a full opportunity must be given after the jury has been instructed, but before it begins to deliberate, for counsel to make a full record on their objections to the charge as given as well as to the denial of requests. Further... full opportunity must be given after the statement of the charge and before the retirement of the jury to state any additional objections which may have developed as a result of the giving of the charge. [Emphasis added.] Applying that language to the instant case, it clearly appears that the trial judge’s handling of objections failed to comply with this circuit’s requirements. However, this trial took place some months before the decision in Hollinger. The question thus becomes one of determining the consequences of refusing to allow counsel an opportunity to voice their objections to instructions before the jury retires. The language of the rule suggests the answer. A party who fails to make timely and specific objections to the jury charge loses the opportunity to assign as error any portion of the charge or omission therefrom. When a trial judge prevents the party from complying with the rule, the remedy should be appellate consideration of the claimed errors in instruction. Our prior decisions are consistent with this approach. E. g., United States v. Lisowski, 504 F.2d 1268, 1272 (7th Cir. 1974); American National Bank and Trust Company v. Aetna Insurance Company, 447 F.2d 680, 683 (7th Cir. 1971). We do not say that an outright reversal is beyond either our power or a distinct possibility. We merely state that appellate review of Hornstein’s contentions with respect to Instructions 31, 36, 37, and 38 suffices in the instant case. Appellant Hornstein submits Instruction No. 31 as an apt illustration of why a conference on jury instructions should have been held prior to the submission of the case to the jury. The instruction purported to set forth what the charge was under Count III. Hornstein 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_respondent
064
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the respondent of the case. The respondent is the party being sued or tried and is also known as the appellee. Characterize the respondent as the Court's opinion identifies them. Identify the respondent by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer. Also note that the Court's characterization of the parties applies whether the respondent is actually single entitiy or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single respondent, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name. PIONEER INVESTMENT SERVICES CO. v. BRUNSWICK ASSOCIATES LIMITED PARTNERSHIP et al. No. 91-1695. Argued November 30, 1992 Decided March 24, 1993 White, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Blackmun, Stevens, and Kennedy, JJ., joined. O’Connor, J., filed a dissenting opinion, in which Scalia, Souter, and Thomas, JJ., joined, post, p. 399. Craig J. Donaldson argued the cause and filed briefs for petitioner. John A. Lucas argued the cause for respondents. With him on the brief was Lansing R. Palmer. Justice White delivered the opinion of the Court. Rule 3003(c) of the Federal Rules of Bankruptcy Procedure sets out the requirements for filing proofs of claim in Chapter 9 Municipality and Chapter 11 Reorganization cases. Rule 3003(c)(3) provides that the “court shall fix and for cause shown may extend the time within which proofs of claim or interest may be filed.” Rule 9006 is a general rule governing the computation, enlargement, and reduction of periods of time prescribed in other bankruptcy rules. Rule 9006(b)(1) empowers a bankruptcy court to permit a late filing if the movant’s failure to comply with an earlier deadline “was the result of excusable neglect.” In this case, we are called upon to decide whether an attorney’s inadvertent failure to file a proof of claim within the deadline set by the court can constitute “excusable neglect” within the meaning of the Rule. Finding that it can, we affirm. HH On April 12, 1989, petitioner filed a voluntary petition for bankruptcy in the United States Bankruptcy Court for the Eastern District of Tennessee. The petition sought relief under Chapter 11 of the Bankruptcy Code. Petitioner also filed a list of its 20 largest unsecured creditors, including all but one of respondents here. The following month, after obtaining extensions of time from the Bankruptcy Court, petitioner filed a statement of financial affairs and schedules of its assets and liabilities. The schedules, as amended, listed all of the respondents except Ft. Oglethorpe Associates Limited Partnership as creditors holding contingent, unliqui-dated, or disputed claims; the Ft. Oglethorpe partnership was not listed at all. Under § 1111 of the Bankruptcy Code, 11 U. S. C. § 1111(a), and Bankruptcy Rule 3003(c)(2), all such creditors are required to file a proof of claim with the bankruptcy court before the deadline, or “bar date,” established by the court. On April 13,1989, the day after petitioner filed its Chapter 11 petition, the Bankruptcy Court mailed a “Notice for Meeting of Creditors” to petitioner’s creditors. Along with the announcement of a May 5 meeting was the following passage: “You must file a proof of claim if your claim is scheduled as disputed, contingent or unliquidated, is unlisted or you do not agree with the amount. See 11 U. S. C. Sec. 1111 & Bankruptcy rule 3003. Bar date is August 3, 1989.” App. 29a. The notice was received and read by Mark A. Berlin, president of the corporate general partners of each of the respondents. Berlin duly attended the creditors’ meeting on May 5. The following month, respondents retained an experienced bankruptcy attorney, Marc Richards, to represent them in the proceedings. Berlin stated in an affidavit that he provided Richards with a complete copy of the case file, including a copy of the court’s April 13,1989, notice to creditors. Berlin also asserted that he inquired of Richards whether there was a deadline for filing claims and that Richards assured him that no bar date had been set and that there was no urgency in filing proofs of claim. Id., at 121a. Richards and Berlin both attended a subsequent meeting of creditors on June 16, 1989. Respondents failed to file any proofs of claim by the August 3, 1989, bar date. On August 23, 1989, respondents filed their proofs, along with a motion that the court permit the late filing under Rule 9006(b)(1). In particular, respondents’ counsel explained that the bar date, of which he was unaware, came at a time when he was experiencing “a major and significant disruption” in his professional life caused by his withdrawal from his former law firm on July 31, 1989. Id., at 56a. Because of this disruption, counsel did not have access to his copy of the case file in this matter until mid-August. Ibid. The Bankruptcy Court refused the late filing. Following precedent from the Court of Appeals for the Eleventh Circuit, the court held that a party may claim “excusable neglect” only if its “ ‘failure to timely perform a duty was due to circumstances which were beyond [its] reasonable [control.’ ” Id., at 124a (quoting In re South Atlantic Financial Corp., 767 F. 2d 814, 817 (CA11 1985) (some internal quotation marks omitted), cert. denied sub nom. Biscayne 21 Condominium Associates, Inc. v. South Atlantic Financial Corp., 475 U. S. 1015 (1986)). Finding that respondents had received notice of the bar date and could have complied, the court ruled that they could not claim “excusable neglect.” On appeal, the District Court affirmed in part and reversed in part. The court found “respectable authority for the narrow reading of ‘excusable neglect’ ” adopted by the Bankruptcy Court, but concluded that the Court of Appeals for the Sixth Circuit would follow “a more liberal approach.” App. 157a. Embracing a test announced by the Court of Appeals for the Ninth Circuit, the District Court remanded with instructions that the Bankruptcy Court evaluate respondents’ conduct against several factors, including: “ ‘ “(1) whether granting the delay will prejudice the debtor; (2) the length of the delay and its impact on efficient court administration; (3) whether the delay was beyond the reasonable control of the person whose duty it was to perform; (4) whether the creditor acted in good faith; and (5) whether clients should be penalized for their counsel’s mistake or neglect.” ’ ” Id., at 158a~159a (quoting In re Dix, 95 B. R. 134, 138 (CA9 Bkrtcy. Appellate Panel 1988) (in turn quoting In re Magouirk, 693 F. 2d 948, 951 (CA9 1982))). The District Court also suggested that the Bankruptcy Court consider whether the failure to comply with the bar date “resulted from negligence, indifference or culpable conduct on the part of a moving creditor or its counsel.” App. 159a. On remand, the Bankruptcy Court applied the so-called Dix factors and. again denied respondents’ motion. Specifically, the Bankruptcy Court found (1) that petitioner would not be prejudiced by the late filings; (2) that the 20-day delay in filing the proofs of claim would have no adverse impact on efficient court administration; (3) that the reason for the delay was not outside respondents’ control; (4) that respondents and their counsel acted in good faith; and (5) that, in light of Berlin’s business sophistication and his actual knowledge of the bar date, it would not be improper to penalize respondents for the neglect of their counsel. App. 168a-172a. The court also found that respondents’ counsel was negligent in missing the bar date and, “[t]o a degree,” indifferent to it. Id., at 172a. In weighing these considerations, the Bankruptcy Court “attache[d] considerable importance to Dix factors 3 and 5,” and concluded that a ruling in respondents’ favor, notwithstanding their actual notice of the bar date, “would render nugatory the fixing of the claims’ bar-date in this case.” Id., at 173a. The District Court affirmed the ruling. The Court of Appeals for the Sixth Circuit reversed. The Court of Appeals agreed with the District Court that “excusable neglect” was not limited to cases where the failure to act was due to circumstances beyond the movant’s control. The Court of Appeals also agreed with the District Court that the five “Dix factors” were helpful, although not necessarily exhaustive, guides. In re Pioneer Investment Services Co., 943 F. 2d 673, 677 (1991). The court found, however, that the Bankruptcy Court had misapplied the fifth Dix factor to this case. Because Berlin had inquired of counsel whether there were any impending filing deadlines and been told that none existed, the Court of Appeals ruled that the Bankruptcy Court had “inappropriately penalized the [respondents] for the errors of their counsel.” 943 F. 2d, at 677. The Court of Appeals also found “it significant that the notice containing the bar date was incorporated in a document entitled ‘Notice for Meeting of Creditors.’ ” Id., at 678. “Such a designation,” the court explained, “would not have put those without extensive experience in bankruptcy on notice that the date appended to the end of this notice was intended to be the final date for filing proof of claims'.” Ibid. Indeed, based on a comparison between the notice in this case and the model notice set out in Official Bankruptcy Form 16, the court concluded that the notice given respondents contained a “dramatic ambiguity,” which could well have confused “[e]ven persons experienced in bankruptcy.” Ibid. Having determined that the fifth Dix factor favored respondents rather than petitioner, the Court of Appeals found that the record demonstrated “excusable neglect.” Because of the conflict in the Courts of Appeals over the meaning of “excusable neglect,” we granted certiorari, 504 U. S. 984 (1992), and now affirm. II A There is, of course, a range of possible explanations for a party’s failure to comply with a court-ordered filing deadline. At one end of the spectrum, a party may be prevented from complying by forces beyond its control, such as by an act of God or unforeseeable human intervention. At the other, a party simply may choose to flout a deadline. In between lie cases where a party may choose to miss a deadline although for a very good reason, such as to render first aid to an accident victim discovered on the way to the courthouse, as well as cases where a party misses a deadline through inadvertence, miscalculation, or negligence. Petitioner contends that the Bankruptcy Court was correct when it first interpreted Rule 9006(b)(1) to require a showing that the mov-ant’s failure to comply with the court’s deadline was caused by circumstances beyond its reasonable control. Petitioner suggests that exacting enforcement of filing deadlines is essential to the Bankruptcy Code’s goals of certainty and finality in resolving disputed claims. Under petitioner’s view, any showing of fault on the part of the late filer would defeat a claim of “excusable neglect.” We think that petitioner’s interpretation is not consonant with either the language of the Rule or the evident purposes underlying it. First, the Rule grants a reprieve to out-of-time filings that were delayed by “neglect.” The ordinary meaning of “neglect” is “to give little attention or respect” to a matter, or, closer to the point for our purposes, “to leave undone or unattended to especially] through carelessness.” Webster’s Ninth New Collegiate Dictionary 791 (1983) (emphasis added). The word therefore encompasses both simple, faultless omissions to act and, more commonly, omissions caused by carelessness. Courts properly assume, absent sufficient indication to the contrary, that Congress intends the words in its enactments to carry “their ordinary, contemporary, common meaning.” Perrin v. United States, 444 U. S. 37, 42 (1979). Hence, by empowering the courts to accept late filings “where the failure to act was the result of excusable neglect,” Rule 9006(b)(1), Congress plainly contemplated that the courts would be permitted, where appropriate, to accept late filings caused by inadvertence, mistake, or carelessness, as well as by intervening circumstances beyond the party’s control. Contrary to petitioner’s suggestion, this flexible understanding of “excusable neglect” accords with the policies underlying Chapter 11 and the bankruptcy rules. The “excusable neglect” standard of Rule 9006(b)(1) governs late filings of proofs -of claim in Chapter 11 cases but not in Chapter 7 cases. The rules’ differentiation between Chapter 7 and Chapter 11 filings corresponds with the differing policies of the two chapters. Whereas the aim of a Chapter 7 liquidation is the prompt closure and distribution of the debtor’s estate, Chapter 11 provides for reorganization with the aim of rehabilitating the debtor and avoiding forfeitures by creditors. See United States v. Whiting Pools, Inc., 462 U. S. 198, 203 (1983). In overseeing this latter process, the bankruptcy courts are necessarily entrusted with broad equitable powers to balance the interests of the affected parties, guided by the overriding goal of ensuring the success of the reorganization. See NLRB v. Bildisco & Bildisco, 466 U. S. 513, 627-528 (1984). This context suggests that Rule 9006’s allowance for late filings due to “excusable neglect” entails a correspondingly equitable inquiry. The history of the present bankruptcy rules confirms this view. Rule 9006(b) is derived from Rule 906(b) of the former bankruptcy rules, which governed bankruptcy proceedings under the former Bankruptcy Act. Like Rule 9006(b)(1), former Rule 906(b) permitted courts to accept late filings “where the failure to act was the result of excusable neglect.” The forerunner of Rule 3003(c), which now establishes the requirements for filing claims in Chapter 11 cases, was former Rule 10-401(b), which established the filing requirements for proofs of claim in reorganization cases under Chapter X of the former Act, Chapter ll’s predecessor. The Advisory Committee’s Notes accompanying that former Rule make clear that courts were entrusted with the authority under Rules 10-401(b) and 906(b) to accept tardy filings “in accordance with the equities of the situation”: “If the court has fixed a bar date for the filing of proofs of claim, it may still enlarge that time within the provisions of Bankruptcy Rule 906(b) which is made applicable in this subdivision. This policy is in accord with Chapter X generally which is to preserve rather than to forfeit rights. In § 102 it rejects the notion expressed in §57n of the Act that claims must be filed within a six-month period to participate in any distribution. Section 224(4) of Chapter X of the Act permits distribution to certain creditors even if they fail to file claims and § 204 fixes a minimum period of 5 years before distribution rights under a plan may be forfeited. This approach was intentional as expressed in Senate Report 1916 (75th Cong., 3d Sess., April 20, 1938): “ ‘Sections 204 and 205 insure participation in the benefits of the reorganization to those who, through inadvertence or otherwise, have failed to file their claims or otherwise evidence their interests during the pendency of the proceedings.’ “This attitude is carried forward in the rules, first by dispensing with the need to file proofs of claims and stock interests in most instances and, secondly, by permitting enlargement of the fixed bar date in a particular case with leave of court and for cause shown in accordance with the equities of the situation.” Advisory Committee’s Note accompanying Rule 10-401(b), reprinted in 13A J. Moore & L. King, Collier on Bankruptcy ¶ 10-401.01, p. 10-401-4 (14th ed. 1977). This history supports our conclusion that the enlargement of prescribed time periods under the “excusable neglect” standard of Rule 9006(b)(1) is not limited to situations where the failure to timely file is due to circumstances beyond the control of the filer. Our view that the phrase “excusable neglect” found in Bankruptcy Rule 9006(b)(1) is not limited as petitioner would have it is also strongly supported by the Federal Rules of Civil Procedure, which use that phrase in several places. Indeed, Rule 9006(b)(1) was patterned after Rule 6(b) of those Rules. Under Rule 6(b), where the specified period for the performance of an act has elapsed, a district court may enlarge the period and permit the tardy act where the omission is the “result of excusable neglect.” As with Rule 9006(b)(1), there is no indication that anything other than the commonly accepted meaning of the phrase was intended by its drafters. It is not surprising, then, that in applying Rule 6(b), the Courts of Appeals have generally recognized that “excusable neglect” may extend to inadvertent delays. Although inadvertence, ignorance of the rules, or mistakes construing the rules do not usually constitute “excusable” neglect, it is clear that “excusable neglect” under Rule 6(b) is a somewhat “elastic concept” and is not limited strictly to omissions caused by circumstances beyond the control of the movant. The “excusable neglect” standard for allowing late filings is also used elsewhere in the Federal Rules of Civil Procedure. When a party should have asserted a counterclaim but did not, Rule 13(f) permits the counterclaim to be set up by amendment where the omission is due to “oversight, inadvertence, or excusable neglect, or when justice requires.” In the context of such a provision, it is difficult indeed to imagine that “excusable neglect” was intended to be limited as petitioner insists it should be. The same is true of Rule 60(b)(1), which permits courts to reopen judgments for reasons of “mistake, inadvertence, surprise, or excusable neglect,” but only on motion made within one year of the judgment. Rule 60(b)(6) goes further, however, and empowers the court to reopen a judgment even after one year has passed for “any other reason justifying relief from the operation of the judgment.” These provisions are mutually exclusive, and thus a party who failed to take timely action due to “excusable neglect” may not seek relief more than a year after the judgment by resorting to subsection (6). Liljeberg v. Health Services Acquisition Corp., 486 U. S. 847, 863, and n. 11 (1988). To justify relief under subsection (6), a party must show “extraordinary circumstances” suggesting that the party is faultless in the delay. See ibid.; Ackermann v. United States, 340 U. S. 193, 197-200 (1950); Klapprott v. United States, 335 U. S. 601, 613-614 (1949). If a party is partly to blame for the delay, relief must be sought within one year under subsection (1) and the party’s neglect must be excusable. In Klapprott, for example, the petitioner had been effectively prevented from taking a timely appeal of a judgment by incarceration, ill health, and other factors beyond his reasonable control. Four years after a default judgment had been entered against him, he sought to reopen the matter under Rule 60(b) and was permitted to do so. As explained by Justice Black: “It is contended that the one-year limitation [of subsection (1)] bars petitioner on the premise that the petition to set aside the judgment showed, at most, nothing but ‘excusable neglect.’ And of course, the one-year limitation would control if no more than ‘neglect’ was disclosed by the petition. In that event the petitioner could not avail himself of the broad ‘any other reason’ clause of 60(b). But petitioner’s allegations set up an extraordinary situation which cannot fairly or logically be classified as mere ‘neglect’ on his part. The undenied facts set out in the petition reveal far more than a failure to defend... due to inadvertence, indifference, or careless disregard of consequences.” Id., at 613. Justice Frankfurter, although dissenting on other grounds, agreed that Klapprott’s allegations of inability to comply with earlier deadlines took his case outside the scope of “excusable neglect” “because ‘neglect’ in the context of its subject matter carries the idea of negligence and not merely of non-action.” Id., at 630. Thus, at least for purposes of Rule 60(b), “excusable neglect” is understood to encompass situations in which the failure to comply with a filing deadline is attributable to negligence. Because of the language and structure of Rule 60(b), a party’s failure to file on time for reasons beyond his or her control is not considered to constitute “neglect.” See Klapprott, supra. This latter result, however, would not obtain under Bankruptcy Rule 9006(b)(1). Had respondents here been prevented from complying with the bar date by an act of God or some other circumstance beyond their control, the Bankruptcy Court plainly would have been permitted to find “excusable neglect.” At the same time, reading Rule 9006(b)(1) inflexibly to exclude every instance of an inadvertent or negligent omission would ignore the most natural meaning of the word “neglect” and would be at odds with the accepted meaning of that word in analogous contexts. B This leaves, of course, the Rule’s requirement that the party’s neglect of the bar date be “excusable.” It is this requirement that we believe will deter ^editors or other parties from freely ignoring court-ordered deadlines in the hopes of winning a permissive reprieve under Rule 9006(b)(1). With regard to determining whether a party’s neglect of a deadline is excusable, we are in substantial agreement with the factors identified by the Court of Appeals. Because Congress has provided no other guideposts for determining what sorts of neglect will be considered “excusable,” we conclude that the determination is at bottom an equitable one, taking account of all relevant circumstances surrounding the party’s omission. These include, as the Court of Appeals found, the danger of prejudice to the debtor, the length of the delay and its potential impact on judicial proceedings, the reason for the delay, including whether it was within the reasonable control of the movant, and whether the movant acted in good faith. See 943 F. 2d, at 677. There is one aspect of the Court of Appeals' analysis, however, with which we disagree. The Court of Appeals suggested that it would be inappropriate to penalize respondents for the omissions of their attorney, reasoning that “the ultimate responsibility of filing the... proof[s] of clai[m] rested with [respondents’] counsel.” Ibid. The court also appeared to focus its analysis on whether respondents did all they reasonably could in policing the conduct of their attorney, rather than on whether their attorney, as respondents’ agent, did all he reasonably could to comply with the court-ordered bar date. In this, the court erred. In other contexts, we have held that clients must be held accountable for the acts and omissions of their attorneys. In Link v. Wabash R. Co., 370 U. S. 626 (1962), we Question: Who is the respondent of the case? 001. attorney general of the United States, or his office 002. specified state board or department of education 003. city, town, township, village, or borough government or governmental unit 004. state commission, board, committee, or authority 005. county government or county governmental unit, except school district 006. court or judicial district 007. state department or agency 008. governmental employee or job applicant 009. female governmental employee or job applicant 010. minority governmental employee or job applicant 011. minority female governmental employee or job applicant 012. not listed among agencies in the first Administrative Action variable 013. retired or former governmental employee 014. U.S. House of Representatives 015. interstate compact 016. judge 017. state legislature, house, or committee 018. local governmental unit other than a county, city, town, township, village, or borough 019. governmental official, or an official of an agency established under an interstate compact 020. state or U.S. supreme court 021. local school district or board of education 022. U.S. Senate 023. U.S. senator 024. foreign nation or instrumentality 025. state or local governmental taxpayer, or executor of the estate of 026. state college or university 027. United States 028. State 029. person accused, indicted, or suspected of crime 030. advertising business or agency 031. agent, fiduciary, trustee, or executor 032. airplane manufacturer, or manufacturer of parts of airplanes 033. airline 034. distributor, importer, or exporter of alcoholic beverages 035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked 036. American Medical Association 037. National Railroad Passenger Corp. 038. amusement establishment, or recreational facility 039. arrested person, or pretrial detainee 040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association 041. author, copyright holder 042. bank, savings and loan, credit union, investment company 043. bankrupt person or business, or business in reorganization 044. establishment serving liquor by the glass, or package liquor store 045. water transportation, stevedore 046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines 047. brewery, distillery 048. broker, stock exchange, investment or securities firm 049. construction industry 050. bus or motorized passenger transportation vehicle 051. business, corporation 052. buyer, purchaser 053. cable TV 054. car dealer 055. person convicted of crime 056. tangible property, other than real estate, including contraband 057. chemical company 058. child, children, including adopted or illegitimate 059. religious organization, institution, or person 060. private club or facility 061. coal company or coal mine operator 062. computer business or manufacturer, hardware or software 063. consumer, consumer organization 064. creditor, including institution appearing as such; e.g., a finance company 065. person allegedly criminally insane or mentally incompetent to stand trial 066. defendant 067. debtor 068. real estate developer 069. disabled person or disability benefit claimant 070. distributor 071. person subject to selective service, including conscientious objector 072. drug manufacturer 073. druggist, pharmacist, pharmacy 074. employee, or job applicant, including beneficiaries of 075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan 076. electric equipment manufacturer 077. electric or hydroelectric power utility, power cooperative, or gas and electric company 078. eleemosynary institution or person 079. environmental organization 080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer. 081. farmer, farm worker, or farm organization 082. father 083. female employee or job applicant 084. female 085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of 086. fisherman or fishing company 087. food, meat packing, or processing company, stockyard 088. foreign (non-American) nongovernmental entity 089. franchiser 090. franchisee 091. lesbian, gay, bisexual, transexual person or organization 092. person who guarantees another's obligations 093. handicapped individual, or organization of devoted to 094. health organization or person, nursing home, medical clinic or laboratory, chiropractor 095. heir, or beneficiary, or person so claiming to be 096. hospital, medical center 097. husband, or ex-husband 098. involuntarily committed mental patient 099. Indian, including Indian tribe or nation 100. insurance company, or surety 101. inventor, patent assigner, trademark owner or holder 102. investor 103. injured person or legal entity, nonphysically and non-employment related 104. juvenile 105. government contractor 106. holder of a license or permit, or applicant therefor 107. magazine 108. male 109. medical or Medicaid claimant 110. medical supply or manufacturing co. 111. racial or ethnic minority employee or job applicant 112. minority female employee or job applicant 113. manufacturer 114. management, executive officer, or director, of business entity 115. military personnel, or dependent of, including reservist 116. mining company or miner, excluding coal, oil, or pipeline company 117. mother 118. auto manufacturer 119. newspaper, newsletter, journal of opinion, news service 120. radio and television network, except cable tv 121. nonprofit organization or business 122. nonresident 123. nuclear power plant or facility 124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels 125. shareholders to whom a tender offer is made 126. tender offer 127. oil company, or natural gas producer 128. elderly person, or organization dedicated to the elderly 129. out of state noncriminal defendant 130. political action committee 131. parent or parents 132. parking lot or service 133. patient of a health professional 134. telephone, telecommunications, or telegraph company 135. physician, MD or DO, dentist, or medical society 136. public interest organization 137. physically injured person, including wrongful death, who is not an employee 138. pipe line company 139. package, luggage, container 140. political candidate, activist, committee, party, party member, organization, or elected official 141. indigent, needy, welfare recipient 142. indigent defendant 143. private person 144. prisoner, inmate of penal institution 145. professional organization, business, or person 146. probationer, or parolee 147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer 148. public utility 149. publisher, publishing company 150. radio station 151. racial or ethnic minority 152. person or organization protesting racial or ethnic segregation or discrimination 153. racial or ethnic minority student or applicant for admission to an educational institution 154. realtor 155. journalist, columnist, member of the news media 156. resident 157. restaurant, food vendor 158. retarded person, or mental incompetent 159. retired or former employee 160. railroad 161. private school, college, or university 162. seller or vendor 163. shipper, including importer and exporter 164. shopping center, mall 165. spouse, or former spouse 166. stockholder, shareholder, or bondholder 167. retail business or outlet 168. student, or applicant for admission to an educational institution 169. taxpayer or executor of taxpayer's estate, federal only 170. tenant or lessee 171. theater, studio 172. forest products, lumber, or logging company 173. person traveling or wishing to travel abroad, or overseas travel agent 174. trucking company, or motor carrier 175. television station 176. union member 177. unemployed person or unemployment compensation applicant or claimant 178. union, labor organization, or official of 179. veteran 180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL) 181. wholesale trade 182. wife, or ex-wife 183. witness, or person under subpoena 184. network 185. slave 186. slave-owner 187. bank of the united states 188. timber company 189. u.s. job applicants or employees 190. Army and Air Force Exchange Service 191. Atomic Energy Commission 192. Secretary or administrative unit or personnel of the U.S. Air Force 193. Department or Secretary of Agriculture 194. Alien Property Custodian 195. Secretary or administrative unit or personnel of the U.S. Army 196. Board of Immigration Appeals 197. Bureau of Indian Affairs 198. Bonneville Power Administration 199. Benefits Review Board 200. Civil Aeronautics Board 201. Bureau of the Census 202. Central Intelligence Agency 203. Commodity Futures Trading Commission 204. Department or Secretary of Commerce 205. Comptroller of Currency 206. Consumer Product Safety Commission 207. Civil Rights Commission 208. Civil Service Commission, U.S. 209. Customs Service or Commissioner of Customs 210. Defense Base Closure and REalignment Commission 211. Drug Enforcement Agency 212. Department or Secretary of Defense (and Department or Secretary of War) 213. Department or Secretary of Energy 214. Department or Secretary of the Interior 215. Department of Justice or Attorney General 216. Department or Secretary of State 217. Department or Secretary of Transportation 218. Department or Secretary of Education 219. U.S. Employees' Compensation Commission, or Commissioner 220. Equal Employment Opportunity Commission 221. Environmental Protection Agency or Administrator 222. Federal Aviation Agency or Administration 223. Federal Bureau of Investigation or Director 224. Federal Bureau of Prisons 225. Farm Credit Administration 226. Federal Communications Commission (including a predecessor, Federal Radio Commission) 227. Federal Credit Union Administration 228. Food and Drug Administration 229. Federal Deposit Insurance Corporation 230. Federal Energy Administration 231. Federal Election Commission 232. Federal Energy Regulatory Commission 233. Federal Housing Administration 234. Federal Home Loan Bank Board 235. Federal Labor Relations Authority 236. Federal Maritime Board 237. Federal Maritime Commission 238. Farmers Home Administration 239. Federal Parole Board 240. Federal Power Commission 241. Federal Railroad Administration 242. Federal Reserve Board of Governors 243. Federal Reserve System 244. Federal Savings and Loan Insurance Corporation 245. Federal Trade Commission 246. Federal Works Administration, or Administrator 247. General Accounting Office 248. Comptroller General 249. General Services Administration 250. Department or Secretary of Health, Education and Welfare 251. Department or Secretary of Health and Human Services 252. Department or Secretary of Housing and Urban Development 253. Interstate Commerce Commission 254. Indian Claims Commission 255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement 256. Internal Revenue Service, Collector, Commissioner, or District Director of 257. Information Security Oversight Office 258. Department or Secretary of Labor 259. Loyalty Review Board 260. Legal Services Corporation 261. Merit Systems Protection Board 262. Multistate Tax Commission 263. National Aeronautics and Space Administration 264. Secretary or administrative unit of the U.S. Navy 265. National Credit Union Administration 266. National Endowment for the Arts 267. National Enforcement Commission 268. National Highway Traffic Safety Administration 269. National Labor Relations Board, or regional office or officer 270. National Mediation Board 271. National Railroad Adjustment Board 272. Nuclear Regulatory Commission 273. National Security Agency 274. Office of Economic Opportunity 275. Office of Management and Budget 276. Office of Price Administration, or Price Administrator 277. Office of Personnel Management 278. Occupational Safety and Health Administration 279. Occupational Safety and Health Review Commission 280. Office of Workers' Compensation Programs 281. Patent Office, or Commissioner of, or Board of Appeals of 282. Pay Board (established under the Economic Stabilization Act of 1970) 283. Pension Benefit Guaranty Corporation 284. U.S. Public Health Service 285. Postal Rate Commission 286. Provider Reimbursement Review Board 287. Renegotiation Board 288. Railroad Adjustment Board 289. Railroad Retirement Board 290. Subversive Activities Control Board 291. Small Business Administration 292. Securities and Exchange Commission 293. Social Security Administration or Commissioner 294. Selective Service System 295. Department or Secretary of the Treasury 296. Tennessee Valley Authority 297. United States Forest Service 298. United States Parole Commission 299. Postal Service and Post Office, or Postmaster General, or Postmaster 300. United States Sentencing Commission 301. Veterans' Administration 302. War Production Board 303. Wage Stabilization Board 304. General Land Office of Commissioners 305. Transportation Security Administration 306. Surface Transportation Board 307. U.S. Shipping Board Emergency Fleet Corp. 308. Reconstruction Finance Corp. 309. Department or Secretary of Homeland Security 310. Unidentifiable 311. International Entity Answer:
songer_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. Robert J. BRADEN, Plaintiff, v. UNITED STATES of America, Defendant-Appellee, v. John F. BONISTALL, Third-Party Defendant-Appellant. No. 20821. United States Court of Appeals, Sixth Circuit. May 21, 1971. John F. Bonistall, in pro. per. William M. Brown, Tax Division, Dept, of Justice, Washington, D. C., for defendant-appellee; Johnnie M. Walters, Asst. Atty. Gen., Joseph M. Howard, Bennet M. Hollander, Attys., Tax Division, Dept, of Justice, Washington, D. C., on brief; William W. Milligan, U. S. Atty., Columbus, Ohio, of counsel. Before CELEBREZZE and KENT, Circuit Judges, and O’SULLIVAN, Senior Circuit Judge. PER CURIAM. This action was instituted by Robert J. Braden, the sole owner of a corporation, against the United States to recover amounts paid on a penalty assessed against him for failure to pay over to the United States federal income and social security taxes withheld from the wages of the corporation’s employees, in violation of Section 6672 of the Internal Revenue Code of 1954, 26 U.S.C. § 6672 (1964). The Government interpleaded the Appellant, an officer of the corporation during all relevant periods, as a third-party defendant, alleging that he was equally liable, with Braden, for the penalty. The case was tried without a jury; the District Court held in favor of the Government and entered judgment against Braden and the Appellant, 318 F.Supp. 1189. Braden has not appéaled the adverse decision; the Appellant has. The sole issue he raises is whether there is sufficient evidence on the whole record to support the District Court’s findings. Section 6672 of the Internal Revenue Code of 1954 provides that any person who is responsible for the collection and payment over of any tax, who “willfully” fails to collect or pay such tax, is liable for a penalty equal to the amount of the unpaid tax. There is no dispute that during the periods relevant to this case, federal income and social security taxes which had been withheld from the wages of the corporation’s employees were not paid over to the United States Treasury. There is a direct conflict in the testimony, however, concerning whether the Appellant was responsible for the payment of the taxes and, if he was, whether his nonpayment was “willful.” Concerning the issue of responsibility for payment, Braden testified that, during the relevant periods, the Appellant was “president and general manager” of the corporation and that “he had the duty, complete duties to take care of everything or see that it was done.” By Braden’s account, the Appellant had plenary responsibility of all corporate affairs, including the payment of creditors and the power to prefer one over another. The Appellant testified, however, and argues on appeal that he was hired merely as a “general sales manager” with authority merely in product development and marketing. The District Court credited the testimony of Braden and discredited the Appellant’s. We cannot say that this credibility determination was improper or incorrect. Rule 52(a), Federal Rules of Civil Procedure. Furthermore, the existence of the same duty and concomitant responsibility in Braden did not relieve the Appellant of his responsibility. See Monday v. United States, 421 F.2d 1210, 1214 (7th Cir. 1970), cert. denied, 400 U.S. 821, 91 S.Ct. 38, 27 L.Ed.2d 48 (1970). The next conflict in the testimony was over whether the Appellant knew of the deficiencies and intentionally failed to pay them. If the Appellant was aware of the fact that the taxes were unpaid, and, possessing the power and responsibility to pay them, failed to do so, then he is liable for the penalty of section 6672 notwithstanding his lack of malice or wrongful purpose. Monday v. United States, supra, 421 F.2d at 1215-1217; Dudley v. United States, 428 F.2d 1196, 1198 (9th Cir. 1970); Pacific National Insurance Company v. United States, 422 F.2d 26, 33 (9th Cir. 1970), cert. denied, 398 U.S. 937, 90 S.Ct. 1838, 26 L. Ed.2d 269. Not only did the Appellant admit that, from his prior business experiences, he was aware of the corporate obligation to withhold and pay over federal income and social security taxes, but the testimony of Roach and Braden establishes that he was aware that said taxes were due, owing, and unpaid, and that, with this knowledge, he preferred other creditors over the United States. This testimony appears in the record of the case, and we cannot say that the District Court was clearly in error in crediting it. Rule 52(a), Federal Rules of Civil Procedure. 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:
songer_genresp1
G
What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed respondent. Orlando CORIZ, Jr., By and Through next friends Orlando CORIZ and Bernice D. Coriz, Plaintiffs-Appellants, v. Arthur MARTINEZ and Carlos Guillen, in their individual capacities only, Defendants-Appellees. No. 89-2313. United States Court of Appeals, Tenth Circuit. Oct. 16, 1990. John B. Roesler, Smith & Roesler, P.C., Santa Fe, N.M., for plaintiffs-appellants. Daniel H. Friedman, Simons, Cuddy & Friedman, Santa Fe, N.M., for defendants-appellees. Before ANDERSON, BARRETT, Circuit Judges, and CHRISTENSEN, District Judge. The Honorable A. Sherman Christensen, Senior Judge, United States District Court for the District of Utah, sitting by designation. STEPHEN H. ANDERSON, Circuit Judge. Plaintiff-appellant Orlando Coriz Jr. appeals a summary judgment entered against him on his procedural due process claim on the grounds that the defendants were qual-ifiedly immune. We affirm. In the fall of 1987, defendant Guil-len, an aide to defendant Martinez, a gym teacher at Española Valley High School, threw Coriz to the floor in an effort to maintain discipline. Coriz suffered a broken arm and filed suit under 42 U.S.C. § 1983, alleging, inter alia, that his right to procedural due process had been violated because he had no adequate post-deprivation remedy. The district court granted defendants’ motion for summary judgment on this claim, finding that they were quali-fiedly immune because the inadequacy of Coriz’s post-deprivation remedy was not clearly established. In a situation such as this, “where the State is truly unable to anticipate and prevent a random deprivation of a liberty interest,” Zinermon v. Burch, — U.S. -, 110 S.Ct. 975, 987, 108 L.Ed.2d 100 (1990), “postdeprivation tort remedies are all the process that is due, simply because they are the only remedies the State could be expected to provide,” id. at 985. “[A]n unauthorized intentional deprivation ... by a state employee does not constitute a violation of the procedural requirements of the Due Process Clause of the Fourteenth Amendment if a meaningful postdeprivation remedy for the loss is available.” Hudson v. Palmer, 468 U.S. 517, 533, 104 S.Ct. 3194, 3204, 82 L.Ed.2d 393 (1984). “[Gjovernment officials performing discretionary functions[ ] generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). “[Ojnce a defendant raises a qualified immunity defense the plaintiff assumes the burden of showing that the defendant has violated clearly established law.” Hannula v. City of Lakewood, 907 F.2d 129, 131 (10th Cir.1990). Coriz has failed to show that it was clearly established that New Mexico did not provide an adequate post-deprivation remedy. As this court noted in Garcia by Garcia v. Miera, 817 F.2d 650, 656 (10th Cir.1987), cert. denied, 485 U.S. 959, 108 S.Ct. 1220, 99 L.Ed.2d 421 (1988), federal judges in New Mexico had split on the question of whether the state provided adequate post-deprivation remedies for students whose procedural due process rights were allegedly violated by excessive punishment. Coriz argues that the Harlow inquiry into whether the law was clearly established should apply only to the defendants’ acts, not to the adequacy of the remedies available to redress those acts. We concede that this is an unusual application of qualified immunity, but we conclude that the district court applied the law correctly. The right Coriz claims the defendants violated is not simply to be free from random, unauthorized deprivations of liberty, but to be free from such deprivations in the absence of adequate post-deprivation remedies. See Parratt v. Taylor, 451 U.S. 527, 537, 101 S.Ct. 1908, 1914, 68 L.Ed.2d 420 (1981) (“Nothing in [the Fourteenth] Amendment protects against all deprivations of life, liberty or property by the State. The Fourteenth Amendment protects only against deprivations ‘without due process of law.’ ”); see also Hudson v. Palmer, 468 U.S. at 533, 104 S.Ct. at 3203 (“the state’s action is not complete until and unless it provides or refuses to provide a suitable postdeprivation remedy”). Because of the uncertain state of the law, the defendants’ “actions could reasonably have been thought consistent with the right[] they are alleged to have violated.” Anderson v. Creighton, 483 U.S. 635, 638, 107 S.Ct. 3034, 3038, 97 L.Ed.2d 523 (1987). The judgment of the district court is AFFIRMED. . Coriz’s substantive due process and other claims were tried to a jury, which found against him. The defendants contend that the adverse verdict on the substantive due process claim "moots” Coriz’s procedural due process claim. We disagree. There are three categories of corporal punishment. Punishments that do not exceed the traditional common law standard of reasonableness are not actionable; punishments that exceed the common law standard without adequate state remedies violate procedural due process rights; and, finally, punishments that are so grossly excessive as to be shocking to the conscience violate substantive due process rights, without regard to the adequacy of state remedies. Garcia by Garcia v. Miera, 817 F.2d 650, 656 (10th Cir.1987), cert. denied, 485 U.S. 959, 108 S.Ct. 1220, 99 L.Ed.2d 421 (1988). The jury’s decision that the punishment in this case did not reach the third level in no way foreclosed a finding that the punishment reached the second level. . Coriz, quoting our statement in Garcia that "conflict is relevant to the Harlow inquiry, but not controlling,” 817 F.2d at 658, contends that the district erred by relying solely upon this split within New Mexico in concluding that the law was not clearly established. The Garcia rule only applies to interjurisdictional conflicts. See Lum v. Jensen, 876 F.2d 1385, 1389 (9th Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 867, 107 L.Ed.2d 951 (1990). When there is conflict within a jurisdiction, it cannot be doubted that the law there is not clearly established. . The district court also could have certified to the New Mexico Supreme Court the question of whether Coriz had a state-law remedy. If the answer was affirmative, Coriz’s claim would fail, for the absence of an adequate post-deprivation remedy is an element of his claim. Question: What is the nature of the first listed respondent? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:
songer_appel1_7_5
B
What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine which of these categories best describes the income of the litigant. Consider the following categories: "not ascertained", "poor + wards of state" (e.g., patients at state mental hospital; not prisoner unless specific indication that poor), "presumed poor" (e.g., migrant farm worker), "presumed wealthy" (e.g., high status job - like medical doctors, executives of corporations that are national in scope, professional athletes in the NBA or NFL; upper 1/5 of income bracket), "clear indication of wealth in opinion", "other - above poverty line but not clearly wealthy" (e.g., public school teachers, federal government employees)." Note that "poor" means below the federal poverty line; e.g., welfare or food stamp recipients. There must be some specific indication in the opinion that you can point to before anyone is classified anything other than "not ascertained". Prisoners filing "pro se" were classified as poor, but litigants in civil cases who proceed pro se were not presumed to be poor. Wealth obtained from the crime at issue in a criminal case was not counted when determining the wealth of the criminal defendant (e.g., drug dealers). Benedictor DIAZ-RESENDEZ, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent. No. 90-4792. United States Court of Appeals, Fifth Circuit. May 12, 1992. Lisa S. Brodyaga, Harlingen, Tex., for petitioner. Richard Thornburgh, Atty. Gen., Philemi-na M. Jones, Alice M. King, Mark C. Walters, Robert Kendall, Jr., Robert L. Bom-bough, Dir., Office of Immigration Lit., Civ. Div., U.S. Dept, of Justice, Washington, D.C., for respondent. Omer G. Sewell, Dist. Dir., Harlingen, Tex., John B.Z. Caplinger, Dist. Dir., New Orleans, La., for other interested parties. Before POLITZ, Chief Judge, HIGGINBOTHAM, Circuit Judge, and WINGATE, District Judge. District Judge of the Southern District of Mississippi, sitting by designation. POLITZ, Chief Judge: Benedictor Diaz-Resendez petitions for review of an order of the Board of Immigration Appeals denying discretionary relief from deportation under 8 U.S.C. § 1182(c). Concluding that the Board’s decision is arbitrary and beyond the pale of its discretion we grant review, vacate and remand. Background Diaz-Resendez was admitted to the United States as a lawful resident when he was 17 years old. He has been in continuous lawful-resident status for 37 years, has been married to a United States citizen for 29 years, and they are the parents of six children, all born in the United States. Two of the children are adults and are married, living on their own in Roma, Texas where the family resides. Four of the children still reside in the home, one of whom has special education needs as a result of a head injury sustained in a bicycle accident. That child attends private night school. A second child is attending public high school and the third is taking GED courses. The fourth child is currently employed. Diaz-Resendez is the primary source of income for his family and has a consistent history of employment. His earnings have averaged around $5000 a year from his various work as a carpenter, construction worker, and field worker. The exception is one year in which his earnings were only $375, a time when Diaz-Resendez was forced to apply for assistance in the form of food stamps. The health of this 54-year-old is reasonably good although he receives treatment for a prostate problem. His wife, however, has a progressive and incurable medical condition causing spinal column disintegration. A disastrous event occurred in the life of Diaz-Resendez on October 28, 1985 when the INS arrested him at a checkpoint and approximately 21 pounds of marihuana was found secreted in the car he was driving. Diaz-Resendez pled guilty to possession of marihuana with intent to distribute. He explained that he did this criminal act because of desperation caused by the economic straits he had encountered and his inability to provide for his family, something he had done with pride all of his married life. He was sentenced to imprisonment for three years followed by a special parole term of five years. Of particular note, and of substantial significance, the very experienced trial judge suspended all but four months of the jail sentence. The only other brush with the law Diaz-Resendez had during his 37 years of lawful permanent residence in the United States was a DWI charge in 1983, immediately following which he quit drinking alcoholic beverages. Deportation proceedings were triggered by the drug offense. Pleading that he would never be involved in such conduct again, Diaz-Resendez conceded that he was deportable under 8 U.S.C. § 1251(a)(11), which calls for the deportation of persons who violate our drug laws, but requested, based on all of the relevant circumstances, that he be granted a waiver of deportation under 8 U.S.C. § 1182(c). A deportation hearing was conducted by an Immigration Judge. Diaz-Resendez testified, as did his wife who stated, inter alia, that she and the children would not move to Mexico and that the deportation of her husband would result in a separation of their close-knit family. In addition, documentary evidence was introduced in an effort to buttress the claim that Diaz-Resen-dez was entitled to relief under section 212(c). That evidence included proof of employment and earnings, a favorable letter from the probation officer, and letters of recommendation urging favorable consideration of his petition. The IJ denied relief and ordered deportation to Mexico. Diaz-Resendez appealed to the Board which refused relief. He timely petitioned this court for review of the Board’s decision. Standard of Review A permanent resident alien requesting discretionary relief from deportation under section 212(c) bears the burden of demonstrating that his application merits favorable consideration. Blackwood v. INS, 803 F.2d 1165 (11th Cir.1986). Neither the statute nor applicable regulation contain provisions specifying the circumstances under which such discretion should be exercised. See 8 U.S.C. § 1182(c); 8 C.F.R. § 213.3 (1990). Typically, deference is given to the Board’s interpretation of the Act unless there are persuasive indicators that the Board erred. Zamora-Morel v. INS, 905 F.2d 833, 838 n. 2 (5th Cir.1990). The Board’s denial of an applicant’s petition for relief under section 212(c) is reviewed for abuse of discretion. Foti v. INS, 375 U.S. 217, 84 S.Ct. 306, 11 L.Ed.2d 281 (1963); Bal v. Moyer, 883 F.2d 45 (7th Cir.1989). Such denial will be upheld unless it is arbitrary, irrational, or contrary to law. Zamora-Morel, 905 F.2d at 838; Blackwood, 803 F.2d at 1168; Daniel v. INS, 528 F.2d 1278 (5th Cir.1976). When determining whether the Board’s action was arbitrary, irrational, or not in accordance with the law, we “engage in a substantial inquiry, ... a thorough, probing, in-depth review of [the] discretionary agency action.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 824, 28 L.Ed.2d 136, 153 (1971); Acadian Gas Pipeline System v. FERC, 878 F.2d 865 (5th Cir.1989) (reviewing court does not rubberstamp agency decisions; instead, review must be searching and careful). Under this standard, the Board’s decision may be reversed as an abuse of discretion when it is made without rational explanation, or inexplicably departs from established policies. Martinez-Montoya v. INS, 904 F.2d 1018 (5th Cir.1990) (reversing Legalization Appeal Unit order because a deferred adjudication under Texas law was not a “conviction” under BIA precedent); Graphic Communications Int. Union, Local 554 v. Salem-Gravure Div. of World Color Press, Inc., 843 F.2d 1490, 1493 (D.C.Cir.1988) cert. denied sub nom. World Color Press, Inc. v. Dole, 489 U.S. 1011, 109 S.Ct. 1119, 103 L.Ed.2d 182 (1989) (“Agency decisions that depart from established precedent without a reasoned explanation will be vacated as arbitrary and capricious.”). Further, a decision by the Board may be found arbitrary if the Board fails to address meaningfully all material factors extant. Luciano-Vincente v. INS, 786 F.2d 706 (5th Cir.1986) (the Board’s failure to consider a pertinent factor constitutes abuse of discretion); Mattis v. INS, 774 F.2d 965 (9th Cir.1985) (BIA discretionary denials must demonstrate that the BIA weighed both favorable and unfavorable factors) (citing De La Luz v. INS, 713 F.2d 545 (9th Cir.1983)); Zamora-Garcia v. INS, 737 F.2d 488, 490-91 (5th Cir.1984) (INS must “actually consider” the facts, “meaningfully address” each claim of hardship, and give “reasons for denying relief that reflect full consideration of the evidence.”) (citing Ramos v. INS, 695 F.2d 181 (5th Cir.1983)). Findings of fact supporting the Board’s exercise of discretion, however, are reviewed merely to determine whether they are supported by substantial evidence. Zamora-Morel, 905 F.2d at 838 (citing Young v. INS, 759 F.2d 450, 455-56 n. 6 (5th Cir.), cert. denied, 474 U.S. 996, 106 S.Ct. 412, 88 L.Ed.2d 362 (1985)). Applicable Law In Matter of Marin, 16 I & N Dec. 581 (BIA 1978), the Board established a balancing test for determining whether an alien seeking relief under section 212(c) merits a favorable exercise of discretion. The immigration judge must balance the adverse factors evidencing an alien’s undesirability as a permanent resident with the social and humane considerations presented in' his behalf to determine whether the granting of section 212(c). relief appears in the best interests of this country.... Among the factors deemed adverse to a respondent’s application have been the nature and underlying circumstances of the exclusion ground at issue, the presence of additional significant violations of this country’s immigration laws, the existence of a criminal record, and if so, its nature, recency, and seriousness, and the presence of other evidence indicative of a respondent’s bad character or undesirability as a permanent resident of this country_ Favorable considerations have been found to include such factors as family ties within the United States, residence of long duration in this country (particularly when the inception of residence occurred while the respondent was of young age), evidence of hardship to the respondent and family if deportation occurs, service in this country’s Armed forces, a history of employment, the existence of property or business ties, evidence of value and service to the community, proof of a genuine rehabilitation if a criminal record exists, and other evidence attesting to a respondent’s good character. Id. at 584. The Board also explained that “[a]s the negative factors grow more serious, it becomes incumbent upon the applicant to introduce additional offsetting favorable evidence, which in some cases may involve unusual or outstanding equities.” Id. at 585. Applicants for discretionary relief who have been convicted of serious drug offenses must show “unusual or outstanding equities.” Id. at 586 n. 4; Matter of Edwards, Interim Decision 3134 (BIA May 2, 1990); Matter of Buscemi, Interim Decision 3058 (April 13, 1988). Although it is not an absolute prerequisite, an applicant with a criminal record will ordinarily be required to make a showing of rehabilitation before section 212(c) relief will be granted. Analysis Diaz-Resendez contends that the Board erred in dismissing his appeal. His issues for review reduce to four; specifically, the Board: (1) incorrectly weighed his positive equities; (2) acted inconsistently in finding that he failed to demonstrate unusual or outstanding equities; (3) failed to consider relevant positive factors; and (4) erred in its factual finding that he failed to establish proof of genuine rehabilitation. Improper Weighing of the Equities The Board found that Diaz-Resendez’s equities, while substantial, did not rise to the level of being unusual or outstanding. Diaz-Resendez argues that the Board improperly balanced the positive and negative factors outlined in Marin. He asserts that Marin and its progeny require that the positive and negative aspects of a case be separately evaluated — that a determination is to be made whether the favorable equities rise to the level of unusual and outstanding prior to balancing them against the negative factors. Diaz-Resendez argues that the Board erred because it counted the absence of several positive factors as negative factors and subtracted them from the positive factors before determining that the remainder did not constitute unusual or outstanding equities. Our review of the record convinces us that the Board did not properly weigh serious positive equities, some of which are detailed above and some of which are discussed further herein. Inconsistent Treatment of Similar Cases Diaz-Resendez next contends that the Board acted arbitrarily by holding that he failed to demonstrate unusual or outstanding equities, although the Board had reached a contrary conclusion on much weaker facts in Buscemi. In Buscemi the Board found that the alien had demonstrated unusual or outstanding equities by the fact that his immediate family — parents and four siblings — all resided in the United States, that he had helped to support the family financially (although they were economically self-supporting without his contributions) and as a father figure, that he remained close with his family who would suffer emotional hardship if he were deported, that he had resided in the United States for 17 years and that such residence began at an early age, that he had a history of gainful employment, and that he was forced to grow up under difficult circumstances. Buscemi was a 26-year-old single man with no dependents. The Buscemi court considered Buscemi’s 17 years of residence in this country, beginning at the age of nine, to be a particularly outstanding equity. The equities in the case at bar readily exceed those in Buscemi. These include petitioner’s age; his 37 years in the United States; 29 years of marriage; the fathering of six citizen children, four of whom still reside with him and three of whom, including one with a brain-damage injury, are fully dependent on him; and a sick wife. The characterization in the letters of recommendation of Diaz-Resendez as a “hardworking family man and provider” and his clear criminal record for 37 years other than the sole DWI charge which ended his drinking of alcoholic beverages, factor heavily in the equity-weighing equation. The Board offered no explanation for disparate treatment of these two factually similar eases, even though the dissenting member of the panel noted, “in Matter of Buscemi, we found equities inferior to those of [Diaz-Resendez] to be outstanding [citation omitted].” “The BIA acts arbitrarily when it disregards its own precedents and policies without giving a reasonable explanation for doing so.” Israel v. INS, 785 F.2d 738, 740 (9th Cir.1986). See also, Martinez-Montoya, 904 F.2d at 1023; Graphic Communications, 843 F.2d at 1493. Failure to Consider Positive Factors Diaz-Resendez also contends that the Board failed to consider some of his favorable equities when deciding whether his equities rose to the level of unusual or outstanding. He contends that the Board overlooked factors including the imminent breakup of his marriage if he were deported, the fact that his children would be left fatherless, and the severe economic hardship that the family would incur. The Board considered some but not all of the relevant factors. The Board must do more than just refer to relevant factors in passing. We previously have held in the context of 8 U.S.C. § 1254(a)(1) discretionary deportation cases, that the Attorney General or his delegates “must actually consider ‘the facts and circumstances respecting each petitioner’s claim of extreme hardship.’ ” Zamora-Garcia, 737 F.2d at 491 (citations omitted) (emphasis in original). Similarly, we have held that “[t]he Board’s decision must reflect that it has meaningfully addressed and reached a reasoned conclusion on the alien’s specific assertions of hardship that are based on evidence.” Ramos v. INS, 695 F.2d 181, 188 (5th Cir.1983). Although the Board has no duty to write extensively on every issue, the record herein does not reflect that the Board actually considered or meaningfully addressed Diaz-Resendez’ assertions of hardship. Rehabilitation We find that the treatment accorded the issue of rehabilitation falls below the warranted threshold. Although the Board’s review covered some of the oversights by the IJ, the totality of Diaz-Resendez’ 54 years and his performance after his arrest are relevant. We are not convinced that these were properly weighed. Apparently the Board inappropriately evaluated the matter because it was “troubled ... that [Diaz-Resendez’] testimony did not contain direct statements of remorse.” We are of the view that remorse is demonstrated in many ways, some being more forceful than facile words. Although the Board has “no duty to write an exegesis on every contention,” Osuchukwu v. INS, 744 F.2d 1136, 1142 (5th Cir.1984), we are not convinced that it actually considered the positive factors. Diaz-Resendez did not expressly state his remorse (he was never asked that direct question), but he testified that he would not do it again. Further, the dissenting Board member noted that the Board fail[ed] to consider [Diaz-Resendez’] post-conviction behavior. At the time of the hearing, the respondent had successfully completed nearly all of his 3 years of probation and had been free of criminal activity during that period. Further, he submitted a letter from his probation officer supporting his progress during probation. Moreover, the record reflects that this is the respondent’s only criminal offense, which was contrary to the rest of his lifestyle, as evidence[d] by his family life and satisfactory record of employment. We remain unpersuaded that the Board “actually considered]” and “meaningfully addressed” all of the factors regarding rehabilitation. Zamora-Garcia, 737 F.2d at 490-91. For that reason, we find the Board’s treatment of the issue of rehabilitation to be arbitrary and an abuse of discretion. Conclusion The Board abused its discretion by inexplicably departing from established precedent and failing to actually consider and meaningfully address the positive equities and favorable evidence when reaching its decision. Diaz-Resendez committed a serious crime — possessing marihuana with the intent to distribute. For this crime he was punished, serving time in jail and on probation. As a result of his conviction he is also subject to deportation, 8 U.S.C. § 1251(a)(11). Congress, however, has enacted a remedial statute that grants a waiver of excludability to a broad range of otherwise inadmissible aliens, including those who have been convicted of crimes involving controlled substances, 8 U.S.C. § 1182(c). The IJ is to “balance the adverse factors evidencing an alien’s undesirability as a permanent resident with the social and humane considerations presented in his behalf to determine whether the granting of section 212(c) relief appears in the best interests of this country.” Marin, at 584. Having reviewed the entire record in the context of the existing law, we conclude that the petition of Diaz-Resendez for section 212(c) relief has not been accorded the treatment to which it is entitled. The petition for review is GRANTED; the decision of the Board is VACATED, and the matter is REMANDED to the Board for reconsideration consistent herewith. . Section 212(c) of the Act, 8 U.S.C. § 1182(c), has been interpreted to provide for discretionary relief from deportation for permanent resident aliens who have accrued more than seven consecutive years of lawful, unrelinquished domicile in the United States. See e.g., Mantell v. INS, 798 F.2d 124, 125 n. 2 (5th Cir.1986); Tapia-Acuna v. INS, 640 F.2d 223 (9th Cir.1981); Francis v. INS, 532 F.2d 268 (2d Cir.1976). . It is also interesting to note that the two separate opinions in Edwards identified both 25 and 20 years of residency as ordinarily sufficient to constitute an outstanding equity. Edwards, at 13 (Morris, Board Member, concurring); at 15 (Heilman, Board Member, concurring and dissenting). Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Which of these categories best describes the income of the litigant? A. not ascertained B. poor + wards of state C. presumed poor D. presumed wealthy E. clear indication of wealth in opinion F. other - above poverty line but not clearly wealthy Answer:
sc_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. TIMES FILM CORP. v. CITY OF CHICAGO et al. No. 34. Argued October 19-20, 1960. Decided January 23, 1961. Felix J. Bilgrey and Abner J. Mikva argued the cause and filed a brief for petitioner. Robert J. Collins and Sydney R. Drebin argued the cause for respondents. With them on the brief was John C. Melaniphy. Mr. Justice Clark delivered the opinion of the Court. Petitioner challenges on constitutional grounds the validity on its face of that portion of § 155-4 of the Municipal Code of the City of Chicago which requires submission of all motion pictures for examination prior to their public exhibition. Petitioner is a New York corporation owning the exclusive right to publicly exhibit in Chicago the film known as “Don Juan.” It applied for a permit, as Chicago’s ordinance required, and tendered the license fee but refused to submit the film for examination. The appropriate city official refused to issue the permit and his order was made final on appeal to the Mayor. The sole ground for denial was petitioner’s refusal to submit the film for examination as required. Petitioner then brought this suit seeking injunctive relief ordering the issuance of the permit without submission of the film and restraining the city officials from interfering with the exhibition of the picture. Its sole ground is that the provision of the ordinance requiring submission of the film constitutes, on its face, a prior restraint within the prohibition of the First and Fourteenth Amendments. The District Court dismissed the complaint on the grounds, inter alia, that neither a substantial federal question nor even a justiciable controversy was presented. 180 F. Supp. 843. The Court of Appeals affirmed, finding that the case presented merely an abstract question of law since neither the film nor evidence of its content was submitted. 272 F. 2d 90. The precise question at issue here never having been specifically decided by this Court, we granted certiorari, 362 U. S. 917 (1960). We are satisfied that a justiciable controversy exists. The section of Chicago’s ordinance in controversy specifically provides that a permit for the public exhibition of a motion picture must be obtained; that such “permit shall be granted only after the motion picture film for which said permit is requested has been produced at the office of the commissioner of police for examination”; that the commissioner shall refuse the permit if the picture does not meet certain standards; and that in the event of such refusal the applicant may appeal to the mayor for a de novo hearing and his action shall be final. Violation of the ordinance carries certain punishments. The petitioner complied with the requirements of the ordinance, save for the production of the film for examination. The claim is that this concrete and specific statutory requirement, the production of the film at the office of the Commissioner for examination, is invalid as a previous restraint on freedom of speech. In Joseph Burstyn, Inc., v. Wilson, 343 U. S. 495, 502 (1952), we held that motion pictures are included “within the free speech and free press guaranty of the First and Fourteenth Amendments.” Admittedly, the challenged section of the ordinance imposes a previous restraint, and the broad justiciable issue is therefore present as to whether the ambit of constitutional protection includes complete and absolute freedom to exhibit, at least once, any and every kind of motion picture. It is that question alone which we decide. We have concluded that § 155-4 of Chicago’s ordinance requiring the submission, of films prior to their public exhibition is not, on the grounds set forth, void on its face. Petitioner’s narrow attack upon the ordinance does not require that any consideration be given to the validity of the standards set out therein. They are not challenged and are not before us. Prior motion picture censorship cases which reached this Court involved questions of standards. The films had all been submitted to the authorities and permits for their exhibition were refused because of their content. Obviously, whether a particular statute is “clearly drawn,” or “vague,” or “indefinite,” or whether a clear standard is in fact met by a film are different questions involving other constitutional challenges to be tested by considerations not here involved. Moreover, there is not a word in the record as to the nature and content of “Don Juan.” We are left entirely in the dark in this regard, as were the city officials and the other reviewing courts. Petitioner claims that the nature of the film is irrelevant, and that even if this film contains the basest type of pornography, or incitement to riot, or forceful overthrow of orderly government, it may nonetheless be shown without prior submission for examination. The challenge here is to the censor’s basic authority ; it does not go to any statutory standards employed by the censor or procedural requirements as to the submission of the film. In this perspective we consider the prior decisions of this Court touching on the problem. Beginning over a third of a century ago in Gitlow v. New York, 268 U. S. 652 (1925), they have consistently reserved for future decision possible situations in which the claimed First Amendment privilege might have to give way to the necessities of the public welfare. It has never been held that liberty- of speech is absolute. Nor has it been suggested that all previous restraints on speech are invalid. On the contrary, in Near v. Minnesota, 283 U. S. 697, 715-716 (1931), Chief Justice Hughes, in discussing the classic legal statements concerning the immunity of the press from censorship, observed that the principle forbidding previous restraint “is stated too broadly, if every such restraint is deemed to be prohibited. . . . [T]he protection even as to previous restraint is not absolutely unlimited. But the limitation has been recognized only in exceptional cases.” These included, the Chief Justice found, utterances creating “a hindrance” to the Government’s war effort, and “actual obstruction to its recruiting service'or the publication of the sailing dates of transports or the number and location of troops.” In addition, the Court said that “the primary requirements of decency may be enforced against obscene publications” and the “security of the community life may be protected against incitements to acts of violence and the overthrow by force of orderly government.” Some years later, a unanimous Court, speaking through Mr. Justice Murphy, in Chaplinsky v. New Hampshire, 315 U. S. 568, 571-572 (1942), held that there were “certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words — those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” Thereafter, as we have mentioned, in Joseph Burstyn, Inc., v. Wilson, supra, we found motion pictures to be within the guarantees of the First and Fourteenth Amendments, but we added that this was “not the end of our problem. It does not follow that the Constitution requires absolute freedom to exhibit every motion picture of every kind at all times and all places.” At p. 502. Five years later, in Roth v. United States, 354 U. S. 476, 483 (1957), we held that “in light of . . . history, it is apparent that the unconditional phrasing of the First Amendment was not intended to protect every utterance.” Even those in dissent there found that “Freedom of expression can be suppressed if, and to the extent that, it is so closely brigaded with illegal action as to be an inseparable part of it.” Id., at 514. And, during the same Term, in Kingsley Books, Inc., v. Brown, 354 U. S. 436, 441 (1957), after characterizing Near v. Minnesota, supra, as “one of the landmark opinions” in its area, we took notice that Near “left no doubts that ‘Liberty of speech, and of the press, is also not an absolute right . . . the protection even as to previous restraint is not absolutely unlimited.’. . . The judicial angle of vision,” we said there, “in testing the validity of a statute like § 22-a [New York’s injunctive remedy against certain forms of obscenity] is ‘the operation and effect of the statute in substance.’ ” And as if to emphasize the point involved here, we added that “The phrase ‘prior restraint’ is not a self-wielding sword. Nor can it serve as a talismanic test.” Even as recently as our last Term we again observed the principle, albeit in an allied area, that the State possesses some measure of power “to prevent the distribution of obscene matter.” Smith v. California, 361 U. S. 147, 155 (1959). Petitioner would have us hold that the public exhibition of motion pictures must be allowed under any circumstances. The State’s sole remedy, it says, is the invocation of criminal process under the Illinois pornography statute, Ill. Rev. Stat. (1959), c. 38, § 470, and then only after a transgression. But this position, as we have seen, is founded upon the claim of absolute privilege against prior restraint under the First Amendment — a claim without sanction in our cases. To illustrate its fallacy, we need only point, to one of the “exceptional cases” which Chief Justice Hughes enumerated in Near v. Minnesota, supra, namely, “the primary requirements of decency [that] may be enforced against obscene publications.” Moreover, we later held specifically “that obscenity is not within the area of constitutionally protected speech or press.” Roth v. United States, 354 U. S. 476, 485 (1957). Chicago emphasizes here its duty to protect its people against the dangers of obscenity in the public exhibition of motion pictures. To this argument petitioner’s only answer is that regardless of the capacity for, or extent of, such an evil, previous restraint cannot be justified. With this we cannot agree. We recognized in Burstyn, supra, that “capacity for evil . . . may be relevant in determining the permissible scope of community control,” at p. 502, and that motion pictures were not “necessarily subject to the precise rules governing any other particular method of expression. Each method,” we said, “tends to present its own peculiar problems.” At p. 503. Certainly petitioner’s broadside attack does not warrant, nor could it justify on the record here, our saying that — aside from any consideration of the other “exceptional cases” mentioned in our decisions— the State is stripped of all constitutional power to prevent, in the most effective fashion, the utterance of this class of speech. It is not for this Court to limit the State in its selection of the remedy it deems most effective to cope with such a problem, absent, of course, a showing of unreasonable strictures on individual liberty resulting from its application in particular circumstances. Kingsley Books, Inc., v. Brown, supra, at p. 441. We, of course, are not holding that city officials may be granted the power to prevent the showing of any motion picture they deem unworthy of a license. Joseph Burstyn, Inc., v. Wilson, supra, at 504-505. As to what may be decided when a concrete case involving a specific standard provided by this ordinance is presented, we intimate no opinion. The petitioner has not challenged all — or for that matter any — of the ordinance’s standards. Naturally we could not say that every one of the standards, including those which Illinois’ highest court has found sufficient, is so vague on its face that the entire ordinance is void. At this time we say no more than this — that we are dealing only with motion pictures and, even as to them, only in the context of the broadside attack presented on this record. Affirmed. The portion of the section here under attack is as follows: “Such permit shall be granted only after the motion picture film for which said permit is requested has been produced at the office of the commissioner of police for examination or censorship. . . .” That portion of § 155-4 of the Code providing standards is as follows: “If a picture or series of pictures, for the showing or exhibition of which an application for a permit is made, is immoral or obscene, or portrays depravity, criminality, or lack of virtue of a class of citizens of any race, color, creed, or religion and exposes them to contempt, derision, or obloquy, or tends to produce a breach of the peace or riots, or purports to represent any hanging, lynching, or burning of a human being, it shall be the duty of the commissioner of police to refuse such permit; otherwise it shall be his duty to grant such permit. “In case the commissioner of police shall refuse to grant a permit as hereinbefore provided, the applicant for the same may appeal to the mayor. Such appeal shall be presented in the same manner as the original application to the commissioner of police. The action of the mayor on any application for a permit shall be final.” It should be noted that the Supreme Court of Illinois, in an opinion by Schaefer, C. J., has already considered and rejected an argument against the same Chicago ordinance, similar to the claim advanced here by petitioner. The same court also sustained certain of the standards set out above. American Civil Liberties Union v. City of Chicago, 3 Ill. 2d 334, 121 N. E. 2d 585 (1954). Joseph Burstyn, Inc., v. Wilson, supra (“sacrilegious”); Gelling v. Texas, 343 U. S. 960 (1952) (“prejudicial to the best interests of the people of said City”); Commercial Pictures Corp. v. Regents, 346 U. S. 587 (1954) (“immoral”); Superior Films, Inc., v. Department of Education, 346 U. S. 587 (1954) (“harmful”); Kingsley International Pictures Corp. v. Regents, 360 U. S. 684 (1959) (“sexual immorality”). Question: 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_adminrev
J
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". NATIONAL LABOR RELATIONS BOARD, Petitioner, v. INTERNATIONAL UNION OF ELEVATOR CONSTRUCTORS, AFL-CIO, and Local Union 3, International Union of Elevator Constructors, AFL-CIO, Respondents. No. 88-2354. United States Court of Appeals, Eighth Circuit. Submitted May 10, 1989. Decided April 27, 1990. Steven B. Goldstein, Washington, D.C., for petitioner. Nicholas R. Femia, Washington, D.C., for respondents. Before JOHN R. GIBSON and MAGILL, Circuit Judges, and HEANEY, Senior Circuit Judge. JOHN R. GIBSON, Circuit Judge. Ray Ritz, as a matter of conscience, refused to enter a neutral gate at a construction site and report for work with his employer, Long Elevator and Machine Company, Inc., because another gate at the construction site was being picketed as a result of a labor dispute involving another subcontractor. He was suspended for his refusal to work behind the gate, and his unions, the International Union of Elevator Constructors, AFL-CIO, and Local Union 3, International Union of Elevator Constructors, AFL-CIO (collectively the “Unions”), filed a grievance on his behalf. In response, Long brought charges before the National Labor Relations Board. The Board, relying on Bricklayers & Stone Masons Union, Local No. 2 (Gunnar I. Johnson), 224 NLRB 1021 (1976), enforced, Bricklayers & Stone Masons Union, Local No. 2 v. NLRB, 562 F.2d 775 (D.C.Cir.1977), held that the Unions had violated section 8(b)(4)(ii)(A) of the National Labor Relations Act, 29 U.S.C. § 158(b)(4)(ii)(A) (1982). On appeal, the Unions advance three basic arguments: (1) that Bricklayers is distinguishable from the present case; (2) that Bricklayers is wrong as a matter of law; and (3) that the Board improperly presumed that the Unions acted with a secondary objective. We affirm the Board’s decision and enforce its order. Mead-McClellan, Inc., was the general contractor on a project on which Long Elevator, Ritz’s employer, was one of the subcontractors. The International Brotherhood of Electrical Workers (I.B.E.W.) picketed Soper Electric Company, another subcontractor at the site, regarding the wages and working conditions provided by Soper to its employees. In anticipation of the picketing, Mead-McClellan established a reserved gate system at the site; the west gate was reserved for neutral employers, and the east gate was reserved for Soper’s use. A sign posted near the west gate stated that it was to be used by only certain contractors, including Long. The sign did not mention whether the suppliers of any contractor could use the gate. In contrast, no sign was posted indicating who could use the east entrance. Nevertheless, there was no picketing of the neutral west gate. The evidence indicates, and the AU found, that the reserved gate arrangement was observed by all of the parties. Long sent Ritz to the site and instructed him to enter through the neutral gate. Ritz initially performed some tasks at the site. After he was at the site for several days, however, Ritz told Long’s vice president, Patrick Long, that he refused to work at the site while a picket line existed in front of the east gate. Ritz said that his decision was a matter of conscience. Long then suspended Ritz. The suspension ended three and one-half days later. Soon thereafter, the Unions filed a grievance alleging that Long had violated paragraph 2 of Article 14 of the collective bargaining agreement by disciplining Ritz. That provision of the agreement, entitled “Strikes and Lockouts,” provided that work stoppages resulting from lawful picketing would not constitute a strike within the meaning of the article. The Unions contended that, since the provision authorized Ritz’s refusal to work, Long had committed an unfair labor practice by disciplining Ritz. Long then filed a complaint with the National Labor Relations Board. The AU found that the Unions had not influenced Ritz’s decision, but concluded that this fact was irrelevant. Relying on Bricklayers, the AU held that Ritz’s refusal to enter a neutral gate did “not comport with what has been traditionally deemed to be. primary activity,” AU Op. at 5, and that “it has never been held to be primary activity when employees refuse to work for their employer who is a neutral in the dispute because picketing of another employer is taking place nearby on the common situs,” id. The AU concluded that the Unions had violated section 8(b)(4)(ii)(A) of the National Labor Relations Act by attempting to enforce a contractual picket line clause protecting from discipline employees who refuse to enter a neutral gate. He also decided that, by attempting to enforce the contract clause through the grievance procedure, the Unions attempted to force Long to enter into an agreement in violation of section 8(e) of the Act. The Unions filed exceptions to the AU’s decision with the Board, and the General Counsel filed a cross-exception. A panel of three Board members agreed with the AU that the Unions’ interpretation of Article 14 of the collective bargaining agreement would violate section 8(e). 289 NLRB No. 132. The Board concluded that even though the grievance arose from the actions of only one employee, the theory behind the grievance would require Long to permit all of its employees to refuse to work at the site, notwithstanding the fact that they could enter through a neutral gate. Citing Bricklayers, the Board held that the Unions could neither encourage Long’s employees to stop working nor seek to compel, through a grievance procedure, Long’s acquiescence in a work stoppage by its employees. The Board also found the pursuit of the grievance to be coercive and rejected the Unions’ arguments that the decisions in Newberry Energy Corp., 227 NLRB 436 (1976), and Congoleum Industries, 197 NLRB 534 (1972), compelled a contrary result. I. The pivotal issue in this appeal is the propriety of the Board’s application of Bricklayers to this case. The Unions argue that Bricklayers is inapposite because Bricklayers, unlike this case, involved a properly established reserved gate system. According to the Unions, the reserved gate system in this case was deficient for two reasons: (1) the pickets did not limit themselves to the east gate; and (2) the gates were not properly marked. This effort to distinguish Bricklayers is unpersuasive. The AU found that there were no pickets at the neutral west gate. This finding is controlling if it is “supported by substantial evidence on the record considered as a whole.” 29 U.S.C. § 160(e) (1982); see Universal Camera Corp. v. NLRB, 340 U.S. 474, 487, 71 S.Ct. 456, 464, 95 L.Ed. 456 (1951). The Unions have not identified any testimony indicating that the west gate was picketed. At most, they have cited disputed testimony stating that the pickets came within several feet of the west gate. See Tr. at 104. We conclude that there is adequate support in the record for the AU’s finding that the west gate was not subject to picketing, and we reject the Unions’ argument to the contrary. The Unions argue that this case does not involve a valid reserved gate system because the gates were not properly marked. However, the AU found that, although the neutral west gate did not mention suppliers and there was no sign at the primary gate: all the participants recognized the two-gate system. The IBEW pickets patrolled only the primary gate and did not picket the neutral gate. Likewise, there was no evidence that either gate was compromised by any contractor, subcontractor, or their suppliers. Therefore, I conclude that the reserve gate system established by Mead-McClellan was valid. AU Op. at 5-6. Our study of the record reveals adequate support for these findings. Regardless, even if neutral employees had gone through the unmarked primary gate, the reserved gate system would still have been valid because: The reserved gate system is a “one-way street.” The separate gate system is “tainted” only where employees or suppliers of the primary employer use the reserved, “neutral” gate; however, if neutral employees use the primary’s gate, voluntarily subjecting themselves to the coercive power of the union’s picketing, no “taint” occurs. Mautz & Oren v. Teamsters Local No. 279, 882 F.2d 1117, 1122 n. 4 (7th Cir.1989) (emphasis in original). Not only do we reject the Unions’ attempts to distinguish Bricklayers, but we conclude that the facts in Bricklayers are, in all relevant respects, essentially identical to those of this case. Bricklayers involved a reserved gate system established at a construction site. 562 F.2d at 778. Despite the availability of the neutral gate, employees of a neutral subcontractor refused to work at the site because of pickets at the primary gate. Id. at 778-79. After the neutral employer attempted to obtain a temporary restraining order, and after the matter was submitted to an arbitrator, the case found its way to the NLRB. Id. at 779-80. The Board found that the picket line clauses violated section 8(e) “when they were construed by the arbitrator to protect employees from discipline for refusing to pass through a neutral gate when a primary picket line was stationed elsewhere on the common work situs.” Id. at 780. In the court of appeals, the unions litigating the case argued that the work stoppage should have been treated as “ ‘a lawful response to primary activity’ and as ‘permissible secondary effects of lawful primary activity.’ ” Id. at 786 (quoting the brief of the Petitioners in that case) (footnote omitted) (emphasis in original). The District of Columbia Circuit engaged in a thorough discussion of the various interests at stake in Bricklayers. The court first emphasized that it was reviewing only the employees’ refusal to enter through the neutral gate, and not the picketing at the primary gate. Id. at 784. The court’s analysis then began “with the well established principle that separate contractors working on a construction site are not engaged in a joint enterprise, but instead retain their independent status.” Id. (citing NLRB v. Denver Bldg. Trades Council, 341 U.S. 675, 71 S.Ct. 943, 95 L.Ed. 1284 (1951)). The second crucial foundation for the court’s decision was the fact that reserved gates had been designated. The court concluded that: With the concept of separate gates in operation, it follows that a picket line at the neutral gate is the same in law as a picket line at a totally different job site.... By definition a neutral gate is for employees of neutral — uninvolved— employers. It follows, therefore, that a picket line on a construction site maintained at the neutral employer’s gate constitutes secondary activity and is therefore a violation of Section 8(b)(4)(B) of the Act. Picket line clauses which seek to protect such secondary activity are in violation of Section 8(e) of the Act.... Similarly, under Section 8(e) an agreement allowing the employees of a neutral employer to strike in support of a primary strike is also an unfair labor practice. While the triggering event in such a case is a primary strike or dispute between the struck employer and its employees, the secondary strike or refusal by the employees of the neutral employer... is secondary activity, with the objective of causing the neutral employer to cease to do business with, or to refuse to handle the goods of, the struck employer. Id. at 785 (footnotes omitted) (emphasis added). The court then held that “the picket line clauses as interpreted and applied by the arbitrator were clearly in violation of Section 8(e) as having authorized in advance a refusal to cross a secondary picket line.” Id. at 786. The court rejected the Unions’ attempts to characterize the neutral employees’ conduct as a lawful response to primary conduct; the court believed that the activity: at the neutral gate cannot be other than secondary conduct, whether the picket line be conceived of as “imaginary” or established there by live persons. It cannot be protected by the picket clause, because secondary conduct, whether in response to legitimate primary activity or in response to illegitimate secondary activity... is illegal under both 8(b)(4)(B) and 8(e). Id. The court also ruled that “[t]he failure to limit the picket clauses to lawful responses makes them per se unfair labor practices.” Id. at 786-87 (emphasis in original). The court held it to be irrelevant that the Unions had not induced the employees’ refusal to enter the work site, because “inducement, whether by unions or individuals, is simply not an element of a Section 8(e) violation. Section 8(e) prohibits the entering into of contract terms sanctioning a secondary boycott.” Id. at 787 (emphasis in original). Finally, the court explicitly noted that “[a] contrary decision would undermine the right of the independent contractors to remain neutral in a labor dispute in which they were not involved,” id., because “[tjhe refusal to enter the neutral gate cannot be considered lawful activity without doing violence to the careful balance of the rights and responsibilities of unions and employees as delineated by the Supreme Court in [Denver Building, 341 U.S. 675, 71 S.Ct. 943].” Id. II. Since Bricklayers is indistinguishable from this case, the Board was justified in applying Bricklayers here unless Bricklayers was wrongly decided. Our scope of review is narrow in examining the Board’s conclusion that Bricklayers controls this case. NLRB v. J. Weingarten, Inc., 420 U.S. 251, 267, 95 S.Ct. 959, 968-69, 43 L.Ed.2d 171 (1975). A “reasonably defensible” construction of the Act by the Board “should not be rejected merely because the courts might prefer another view of the statute.” Ford Motor Co. v. NLRB, 441 U.S. 488, 497, 99 S.Ct. 1842, 1849, 60 L.Ed.2d 420 (1979). It is also significant that the Board in this case applied its earlier Bricklayers decision which was enforced by the D.C. Circuit; we have recently indicated our reticence to declare such a Board ruling enforced by another circuit wrong as a matter of law. See NLRB v. W.L. Miller Co., 871 F.2d 745, 748 (8th Cir.1989). The Unions specifically contend that, for two reasons, we should not follow the Bricklayers analysis. First, they argue that Bricklayers rests upon the flawed premise that section 8(b)(4) proscribes uncoerced and uninduced individual responses to primary picketing. This contention merits only brief discussion because it ignores Bricklayers’ holding that inducement is not an element of a Section 8(e) violation. 562 F.2d at 787. Furthermore, both sections 8(b)(4) and 8(e) apply only to the conduct of labor organizations and their agents, and we do not read Bricklayers as holding that those sections prohibit acts by individual workers, but only that they prohibit the actions of a union in utilizing a picket clause with respect to the conduct of the individual workers. The Unions’ second argument presupposes that Ritz’s conduct was protected by section 7 of the Act. The Unions then argue that it would be illogical to construe sections 8(b)(4)(ii)(A) and 8(e) to prevent the Unions from protecting Ritz’s right to engage in a sympathy strike. We agree with the Unions’ contention that sections 7 and 8 must be read together, but we conclude, for the reasons given below, both that section 8(b)(4)(ii)(A) bars the union activity under review in this case and that Ritz’s refusal to work was not protected by section 7. The International Union states in its brief that “if conduct is violative of Section 8(b)(4) or 8(e), then an employee engaging in that conduct is not protected by Section 7, and an employer does not violate the Act by imposing discipline.” (Br. of Int’l Union at 31). This conclusion is supported by commentators. Professor Getman has observed: [T]he reach of section 7 has been reduced by finding limitations suggested not by its language but by other sections and policies of the act. Section 8(b) prohibits various types of concerted activity. Such specifically prohibited activity properly falls outside the protection of section 7. It would make little sense to hold that section 7 protects that which section 8(b) prohibits. Getman, The Protection of Economic Pressure by Section 7 of the National Labor Relations Act, 115 U.Pa.L.Rev. 1195, 1210 (1967) (footnote omitted). Similarly, Professor Archibald Cox stated that: Although section 8(b) regulates only the conduct of labor organizations and section 7 deals with the rights of employees, it seems plain that the group activities which section 8(b) forbids a labor organization to lead must fall outside the protection of section 7 when employees engage in them either with or without the direction of a union. To hold otherwise would disregard legislative history and create an unwarranted anomaly. In the absence of union sponsorship there may be no need for government intervention to curtail undesirable employee activities, but surely the activities themselves have no greater claim to affirmative protection. Cox, The Right to Engage in Concerted Activities, 26 Ind.L.J. 319, 325 (1951) (footnote omitted); accord Congoleum, 197 NLRB at 534 (Miller, Chairman, dissenting) (“If a labor organization is prohibited... from engaging in certain types of secondary strikes, it would be anomalous for us to hold that employees who participate in such a prohibited secondary strike are engaging in protected activity”); R. Gorman, Basic Text on Labor Law: Unionization and Collective Bargaining 302 (1976) (“It is... well established that concerted activity loses the protection of section 7 if its objective is either to compel the employer to violate section 8(a) of the Labor Act, or is such that the union would be responsible for an unfair labor practice under section 8(b)”). A. Labor disputes on a multi-employer construction site implicate the “dual congressional objectives of preserving the right of labor organizations to bring pressure to bear on offending employers in primary labor disputes and of shielding unoffending employers and others from pressures in controversies not their own.” Denver Bldg., 841 U.S. at 692, 71 S.Ct. at 953. “The ‘touchstone’ and ‘central theme’ of § 8(e) is the protection [from secondary pressures] of neutral employers... which are caught in the middle of a union’s dispute with a third party.” Kaiser Steel Corp. v. Mullins, 455 U.S. 72, 84, 102 S.Ct. 851, 860, 70 L.Ed.2d 833 (1982); accord National Woodwork Mfrs. Ass’n v. NLRB, 386 U.S. 612, 638, 87 S.Ct. 1250, 1265, 18 L.Ed.2d 357 (1967). The essence of secondary pressure is that its “sanctions bear, not upon the employer who alone is a party to the dispute, but upon some third party who has no concern in it.” Local 761, Int’l Union of Elec. Workers v. NLRB (General Electric), 366 U.S. 667, 672, 81 S.Ct. 1285, 1289, 6 L.Ed.2d 592 (1961) (quoting International Bhd. of Elec. Workers, Local 501 v. NLRB, 181 F.2d 34, 37 (2d Cir.1950), aff'd, 341 U.S. 694, 71 S.Ct. 954, 95 L.Ed. 1299 (1951)). The use of reserved gates at a construction site became significant after the Supreme Court’s decision in Denver Building. In that case, the issue was whether a union, which had a primary dispute with a subcontractor on a construction project, could picket the whole site in order “to force the general contractor on [the] project to terminate its contract” with the subcontractor who was the target of their picketing. 341 U.S. at 677, 71 S.Ct. at 946. The Supreme Court held that the picketing violated section 8(b)(4)(A) because the various contractors on the site were independent. Id. at 689-90, 71 S.Ct. at 951-52. After Denver Building, reserved gates have played an important role in accommodating the interests of the various parties when a labor dispute erupts at a construction site. Once reserved gates are properly established, the neutral gate is conceptually equivalent to a distinct work site from the gate that has been reserved for the struck employer. See Bricklayers, 562 F.2d at 785. Thus, since a valid reserved gate system was in operation at the work site in this case, it would have been presumptively unlawful for the I.B.E.W. to picket the neutral gate. See Mautz & Oren, 882 F.2d at 1121-24. Moreover, if the I.B.E.W. had engaged in such secondary picketing, the Unions would have violated section 8(e) if they had forced Long, a neutral employer, to agree to allow its employees to honor that secondary picket line. NLRB v. Bay Counties Dist. Council of Carpenters, 382 F.2d 593, 594 (9th Cir.1967), cert. denied, 389 U.S. 1037, 88 S.Ct. 772, 19 L.Ed.2d 825 (1968); Drivers Local Union No. 695 v. NLRB, 361 F.2d 547, 549-53 (D.C.Cir.1966); Truck Drivers Union Local No. 413, Int’l Bhd. of Teamsters v. NLRB, 334 F.2d 539, 543 (D.C.Cir.), cert. denied, 379 U.S. 916, 85 S.Ct. 264, 13 L.Ed.2d 186 (1964). Recognizing these doctrines, we see no reason why the Unions should be able to force Long to permit its employees to act as if there were a secondary picket at the neutral gate. The Board argues with great force that the Unions are attempting to do in this case what they have been unable to do in Congress, that is, overrule Denver Building. In Woelke & Romero Framing v. NLRB, 456 U.S. 645,102 S.Ct. 2071, 72 L.Ed.2d 398 (1982), the Supreme Court described organized labor’s efforts to convince Congress to authorize unions to picket an entire construction site whenever they have a dispute with one of the independent contractors working at the site. See id. at 661-62, 102 S.Ct. at 2080-81, see also J.F. Hoff Elec. Co. v. NLRB, 642 F.2d 1266, 1283-84 & nn. 34-38 (D.C.Cir.1980) (Wilkey, J., dissenting), cert. denied, 451 U.S. 918, 101 S.Ct. 1997, 68 L.Ed.2d 310 (1981). Congress addressed labor’s concerns by enacting the construction industry proviso to section 8(e). See Pub.L. No. 86-257, 73 Stat. 543-44 (1959). The fact that Congress formulated only a limited response to the labor organizations’ objections underscores the strength of Denver Building, and consequently the strength of Bricklayers. The Unions argue that the instant case involves the right of an individual worker to engage in a sympathy strike without being subject to reprisals. We read Bricklayers as treating this very issue. In Bricklayers, the court responded to an identical argument by focusing attention on the actions at the neutral gate rather than on the picketing at the primary gate. The court stated: This is the “underlying conduct,” the conduct of the [neutral] employees at the neutral gate, which is sought to be protected here. This is what the dispute is all about. The “underlying conduct” which is “sought to be protected” here is not the primary picket line at the [primary] gate, but the “responses” to the “lawful primary activity,” i.e., the refusal to enter at the neutral gate. 562 F.2d at 786 (emphasis in original). Similarly, in this case, conduct at the neutral gate is at issue, as the central argument of the Unions demonstrates. The conclusion of Bricklayers is thus equally applicable here. Bricklayers stated that: This “response,” this “underlying conduct,” at the neutral gate cannot be other than secondary conduct, whether the picket line be conceived of as “imaginary” or established there by live persons. It cannot be protected by the picket clause, because secondary conduct, whether in response to legitimate primary activity or in response to illegitimate secondary activity (for example, [a] picket line, real or imaginary), is illegal under both 8(b)(4)(B) and 8(e). The failure to limit the picket clauses to lawful responses makes them per se unfair labor practices. A contrary decision would undermine the right of the independent contractors to remain neutral in a labor dispute in which they were not involved. Id. at 786-87 (emphasis in original). Bricklayers thus prohibits a union from utilizing the picket clause with respect to the secondary conduct of individual workers. B. In support of their contention that Ritz’s conduct was protected by the labor law, the Unions cite a multitude of cases holding that an employee may engage in a sympathy strike. None of these cases contains an analysis of the secondary implications of a neutral employee’s refusal to enter an unpicketed neutral gate. The crucial distinction between this case and all but one of the cases upon which the Unions rely is that Ritz, unlike the employees in those cases, was not being asked to cross a picket line. The absence of a picket line at the neutral gate in this case is not accidental; the Board and the courts have crafted rules governing the permissible location of picketing which mediate between a union’s interest in pressuring a primary employer and the right of neutral employers to be free from secondary pressure. See, e.g., General Electric, 366 U.S. at 671-81, 81 S.Ct. at 1288-94; Sailors’ Union of the Pacific (Moore Dry Dock), 92 NLRB 547, 547-52 (1950). The general principle underlying these cases is that businesses are immune from picketing if their operations are sufficiently removed from the normal operations of the struck employer. See, e.g., General Electric, 366 U.S. at 671-81, 81 S.Ct. at 1288-94; J.F. Hoff, 642 F.2d at 1269-76. The force of this principle in analyzing a common situs situation is perhaps seen most clearly in General Electric. In that case, General Electric had reserved a gate at one of its plants for the exclusive use of independent contractors. 366 U.S. at 668-69, 81 S.Ct. at 1287. A labor dispute arose between General Electric and a union representing many of its employees, and the union picketed all of the gates at the plant. Id. at 670, 81 S.Ct. at 1287-88. General Electric claimed that picketing in front of the gate reserved for independent contractors violated section 8(b)(4)(A). Id. The Supreme Court held that picketing of such a reserved gate was prohibited if, but only if, the work done by the workers using the gate was “unrelated to the normal operations” of the struck employer and was “of a kind that would not, if done when the plant were engaged in its regular operations, necessitate curtailing those operations.” Id. at 681, 81 S.Ct. at 1294 (quoting United Steelworkers v. NLRB, 289 F.2d 591, 595 (2d Cir.1961)). Obviously, there is a certain “community of interest” between various contractors on a construction project. Woelke & Romero Framing, 456 U.S. at 661, 102 S.Ct. at 2081. Nevertheless, it is the holding of Denver Building that the shared interest of the various contractors at a particular construction site is not so great as to justify a rule allowing them all to be picketed merely because a union has a dispute with one of them. See Denver Bldg., 341 U.S. at 685-92, 71 S.Ct. at 949-53. In this case, Ritz’s work would not have directly assisted Soper, the struck employer, at the expense of the striking employees. Admittedly, Soper may have been indirectly assisted if Ritz had continued to work at the site for Long. However, Denver Building stands for the proposition that the connection between independent contractors, standing alone, is so tenuous that pressure on a neutral contractor is deemed to be secondary. Although unions have tried to get Congress to reverse the Denver Building rule, it is still in force. We conclude that it necessarily follows from Denver Building that the Unions in this case were attempting to enmesh a neutral employer in a dispute that was not its own in violation of section 8(b)(4)(ii)(A). III. Finally, the Unions contend that the Board was not entitled to presume that they acted with a secondary objective. They argue that the Board demonstrated only that the Unions’ actions had secondary effects, but not that the Unions had a secondary objective. This argument is not persuasive, as we believe that the Unions have mischaracterized the Board’s holding. The essence of the Board’s holding is that, just as the Unions could not lawfully have encouraged Long’s employees to walk out in support of the I.B.E.W. in its dispute with Soper, the Unions could not attempt to force Long, through the grievance procedure, to allow an employee to stop work in support of Soper. The AU stated that Ritz’s “response (in refusing to enter a neutral gate) does not comport with what has been traditionally deemed to be primary activity,” AU Op. at 5, and that “in eases like this, it has never been held to be primary activity when employees refuse to work for their employer who is a neutral in the dispute because picketing of another employer is taking place nearby on the common situs,” id. We believe that these determinations by the AU and the Board are not presumptions, but rather are applications, to a specific set of facts, of the statute that the Board is charged with administering. We thus reject the Unions’ argument. Moreover, the Unions’ argument would be unsuccessful even if it were correct, because the Board could have justifiably presumed, on these facts, that the Unions did possess a secondary objective. Under the guidelines announced in Moore Dry Dock, there would have been a presumption of secondary intent if Soper’s employees had picketed at the validly established neutral gate through which Ritz was asked to proceed. See Mautz & Oren, 882 F.2d at 1121-24. The Board could reasonably conclude that a similar presumption should arise when the Unions attempted to force a neutral employer to accept an interpretation of its collective bargaining agreement authorizing its employees, with impunity, to refuse to enter a construction site through a neutral gate if picketing was occurring anywhere on the site. Finding no error in the Board's disposition of this case, we enforce the Board’s order. . Article 14, paragraph 2 of the Collective Bargaining Agreement between Long and Local 3 provided: No strike will be called against the Employer by the Union unless the strike is approved by the International Office of the International Union of Elevator Constructors. Sufficient notice shall be given to the Employer before a strike shall become effective. Except in the case of contract service work as specified in Article IX of this agreement, work stoppages brought about by lawful picketing or strikes by building trades local unions affiliated with Building Trades Councils shall not constitute a strike within the meaning of this Article. . That section provides that a labor organization commits an unfair labor practice by "forcing or requiring any employer or self-employed person to join any labor or employer organization or to enter into any agreement which is prohibited by subsection (e) of this section.” 29 U.S.C. § 158(b)(4)(ii)(A). . Section 8(e) states, in relevant part, that: It shall be an unfair labor practice for any labor organization and any employer to enter into any contract or agreement, express or implied, whereby such employer ceases or refrains or agrees to cease or refrain from handling, using, selling, transporting or otherwise dealing in any of the products of any other employer, or to cease doing business with any other person, and any contract or agreement entered into heretofore or hereafter containing such an agreement shall be to such extent unenforcible and void: Provided, That nothing in this subsection shall apply to an agreement between a labor organization and an employer in the construction industry relating to the contracting or subcontracting of work to be done at the site of the construction, alteration, painting, or repair of a building, structure, or other work.... 29 U.S.C. § 158(e). . One witness testified that picketing occurred only from the east gate to the center of the site. Tr. at 65. . The dissent states that "Bricklayers cannot be fairly cited for the proposition that the refusal of Ritz to cross the picket line was not protected by section 7,” infra at 1310. This statement is irrelevant, because our case involves Ritz’s refusal to enter an unpicketed neutral gate. . In his Congoleum dissent, Chairman Miller conducted a similar analysis. He concluded, after making the following observation, that section 7 did not protect a worker's refusal to enter through a neutral gate: [I]n Drivers Local 695, Teamsters [152 NLRB 577 (1965), enforced, 361 F.2d 547 (D.C.Cir.1966) ], we held that a clause in a collective agreement which sought to insulate employees from discipline for refusing to cross unlawful secondary picket lines was violative of Section 8(e) of our Act. Underlying that holding must be the concept that employees cannot find justification for failing to perform their legal duties where their only reason for abstaining therefrom is a desire to involve their neutral employer in someone else’s labor dispute. Congoleum, 197 NLRB at 535 (Miller, Chairman, dissenting) (emphasis in original). . NLRB v. Rockaway News Supply Co., 345 U.S. 71, 73 S.Ct. 519, 97 L.Ed. 832 (1953); John Morrell & Co. v. Local Union 304A of the United Food & Commercial Workers, 804 F.2d 457 (8th Cir.1986) (per curiam), cert. denied, 481 U.S. 1014, 107 S.Ct. 1889, 95 L.Ed.2d 496 (1987); Local Union 1395, Int'l Bhd. of Elec. Workers v. NLRB, 797 F.2d 1027 (D.C.Cir.1986); International Bhd. of Elec. Workers Local 387 v. NLRB, 788 F.2d 1412 (9th Cir.1986) (per curiam); United States Steel Corp. v. NLRB, 711 F.2d 772 (7th Cir.1983); NLRB v. Browning-Ferris Indus., 700 F.2d 385 (7th Cir.1983); NLRB v. Southern Cal. Edison Co., 646 F.2d 1352 (9th Cir.1981); Amcar Div., ACF Indus. v. NLRB, 641 F.2d 561 (8th Cir.1981); NLRB v. Gould, 638 F.2d 159 (10th Cir.1980), cert. denied sub nom. 452 U.S. 930, 101 S.Ct. 3065, 69 L.Ed.2d 430 (1981); NLRB v. Alamo Express, 430 F.2d 1032 (5th Cir.1970), cert. denied, 400 U.S. 1021, 91 S.Ct. 584 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:
sc_adminaction
062
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to 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. FLORIDA DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES et al. v. FLORIDA NURSING HOME ASSOCIATION et al. No. 80-532. Decided March 2, 1981 Per Curiam. Petitioners, the Florida Department of Health and Rehabilitative Services and its Secretary, seek review of a decision of the United States Court of Appeals for the Fifth Circuit ordering them to make payments to various nursing homes. These payments represent the amount that Florida was found to have underpaid these nursing homes in the course of its Medicaid reimbursements from July 1, 1976, to October 18, 1977. Because we conclude that the court below misapplied the prevailing standard for finding a waiver of the State’s immunity under the Eleventh Amendment, we grant a writ of certiorari and reverse. I In 1972, Congress amended the Medicaid Program to provide that every “skilled nursing facility and intermediate care facility” must be reimbursed by participating States on a “cost related basis.” 86 Stat. 1426, 42 U. S. C. § 1396a (a) (13)(E). This amendment was to take effect on July 1, 1976, ibid., and had the effect of altering some reimbursement arrangements based on “flat rates” established by the States. Regulations implementing this change were not promulgated by the Department of Health, Education, and Welfare (HEW) until 1976. As a result, the regulations provided that HEW would not enforce the new “cost related” reimbursement requirement until January 1, 1978. 46 CFR §250.30 (a)(3) (iv) (1976). In March 1977, respondents, an association of Florida nursing homes and various individual nursing homes in southern Florida, brought suit in federal court against the Secretary of HEW and petitioners. They argued that the delay in enforcement created by the implementing regulations was inconsistent with the statutory directive that cost-related reimbursements begin on July 1, 1976. In addition to prospective relief, they sought retroactive relief in the form of payments by the State of the difference between the reimbursement they had received since July 1, 1976, and the amounts they would have received under a cost-related system. The United States District Court for the Southern District of Florida held the regulations invalid, relying on its previous decision in Golden Isles Convalescent Center, Inc. v. Califano, 442 F. Supp. 201 (1977), aff’d, 616 F. 2d 1355 (CA5), cert. denied sub nom. Taylor v. Golden Isles Con valescent Center, Inc., 449 U. S. 872 (1980). These two cases were consolidated for consideration of the availability of retroactive relief, and the District Court held that such relief was barred by the Eleventh Amendment. On appeal, the United States Court of Appeals for the Fifth Circuit affirmed the ruling that the regulations were invalid, but reversed the District Court’s determination that retroactive relief was barred by the Eleventh Amendment. 616 F. 2d 1355 (1980). The court acknowledged that retroactive monetary relief against a State in federal court is forbidden by the Eleventh Amendment “if not consented to by the state.” Id., at 1362. It found the requisite consent, however, based on two acts of the State. First, Florida law provides that the Department of Health and Rehabilitative Services is a “body corporate” with the capacity to “sue and be sued,” Fla. Stat. § 402.34 (1979). 616 F. 2d, at 1363. In addition to this general waiver of sovereign immunity, the court found a specific waiver of the Eleventh Amendment’s immunity from suit in federal court in an agreement under the Medicaid Program in which the Department agreed to “recognize and abide by all State and Federal Laws, Regulations, and Guidelines applicable to participation in and administration of, the Title XIX Medicaid Program.” Ibid. “By contracting with appellants to be bound by all federal laws applicable to the Medicaid program, the state has expressly waived its Eleventh Amendment immunity and consented to suit in federal court regarding any action by providers alleging a breach of these laws.” Ibid. II The analysis in this case is controlled by our decision in Edelman v. Jordan, 415 U. S. 651 (1974). There we applied the Eleventh Amendment to retroactive grants of welfare benefits and discussed the proper standard for a waiver of this immunity by a State. On the latter issue we stated that “we will find waiver only where stated 'by the most express language or by such overwhelming implications from the text as [will] leave no room for any other reasonable construction.’ ” Id., at 673, quoting Murray v. Wilson Distilling Co., 213 U. S. 151, 171 (1909). We added that the “mere fact that a State participates in a program through which the Federal Government provides assistance for the operation by the State of a system of public aid is not sufficient to establish consent on the part of the State to be sued in the federal courts.” 415 U. S., at 673. The holding below, finding a waiver in this case, cannot be reconciled with the principles set out in Edelman. As the Court of Appeals recognized, the State’s general waiver of sovereign immunity for the Department of Health and Rehabilitative Services “does not constitute a waiver by the state of its constitutional immunity under the Eleventh Amendment from suit in federal court.” 616 F. 2d, at 1363. See Smith v. Reeves, 178 U. S. 436, 441 (1900). And the fact that the Department agreed explicitly to obey federal law in administering the program can hardly be deemed an express waiver of Eleventh Amendment immunity. This agreement merely stated a customary condition for any participation in a federal program by the State, and Edelman already established that neither such participation in itself, nor a concomitant agreement to obey federal law, is sufficient to waive the protection of the Eleventh Amendment. 415 U. S., at 673-674. We therefore reverse the decision below. It is so ordered. Justice Marshall dissents and would affirm the judgment of the Court of Appeals, substantially for the reasons stated in his dissent in Edelman v. Jordan, 415 U. S. 651, 688 (1974). Justice Blackmun also dissents and would affirm the judgment of the Court of Appeals substantially for the reasons stated in Justice Marshall’s dissent in Edelman v. Jordan, 415 U. S. 651, 688 (1974). In a commentary accompanying the new regulations, the Secretary noted that no States would be able to accumulate needed data in time to meet the statutory deadline of July 1, 1976. For this reason, cost-related reimbursement was not required under the regulations until January 1, 1978, but the States were “encouraged to meet each requirement of the regulations as soon as possible.” 41 Fed. Reg. 27305 (1976). The Golden Isles case and this case remained consolidated on appeal. The decision below, however, produced two separate petitions for cer-tiorari. The first, Taylor v. Golden Isles Convalescent Center, Inc., cert. denied, 449 U. S. 872 (1980), involved jurisdictional and venue issues. The present petition relates only to the availability of retroactive relief. Petitioners argue that under Florida law a waiver of immunity can only be accomplished by a state statute. See Fla. Const., Art. 10, § 13. No such waiver is present here. In addition, it is worth noting that in October 1976 Congress repealed a provision requiring States participating in Medicaid to waive their Eleventh Amendment immunity. Pub. L. 94-552, 90 Stat. 2540. This repeal was made retroactive to January 1, 1976. Question: What is the agency involved in the administrative action? 001. Army and Air Force Exchange Service 002. Atomic Energy Commission 003. Secretary or administrative unit or personnel of the U.S. Air Force 004. Department or Secretary of Agriculture 005. Alien Property Custodian 006. Secretary or administrative unit or personnel of the U.S. Army 007. Board of Immigration Appeals 008. Bureau of Indian Affairs 009. Bureau of Prisons 010. Bonneville Power Administration 011. Benefits Review Board 012. Civil Aeronautics Board 013. Bureau of the Census 014. Central Intelligence Agency 015. Commodity Futures Trading Commission 016. Department or Secretary of Commerce 017. Comptroller of Currency 018. Consumer Product Safety Commission 019. Civil Rights Commission 020. Civil Service Commission, U.S. 021. Customs Service or Commissioner or Collector of Customs 022. Defense Base Closure and REalignment Commission 023. Drug Enforcement Agency 024. Department or Secretary of Defense (and Department or Secretary of War) 025. Department or Secretary of Energy 026. Department or Secretary of the Interior 027. Department of Justice or Attorney General 028. Department or Secretary of State 029. Department or Secretary of Transportation 030. Department or Secretary of Education 031. U.S. Employees' Compensation Commission, or Commissioner 032. Equal Employment Opportunity Commission 033. Environmental Protection Agency or Administrator 034. Federal Aviation Agency or Administration 035. Federal Bureau of Investigation or Director 036. Federal Bureau of Prisons 037. Farm Credit Administration 038. Federal Communications Commission (including a predecessor, Federal Radio Commission) 039. Federal Credit Union Administration 040. Food and Drug Administration 041. Federal Deposit Insurance Corporation 042. Federal Energy Administration 043. Federal Election Commission 044. Federal Energy Regulatory Commission 045. Federal Housing Administration 046. Federal Home Loan Bank Board 047. Federal Labor Relations Authority 048. Federal Maritime Board 049. Federal Maritime Commission 050. Farmers Home Administration 051. Federal Parole Board 052. Federal Power Commission 053. Federal Railroad Administration 054. Federal Reserve Board of Governors 055. Federal Reserve System 056. Federal Savings and Loan Insurance Corporation 057. Federal Trade Commission 058. Federal Works Administration, or Administrator 059. General Accounting Office 060. Comptroller General 061. General Services Administration 062. Department or Secretary of Health, Education and Welfare 063. Department or Secretary of Health and Human Services 064. Department or Secretary of Housing and Urban Development 065. Administrative agency established under an interstate compact (except for the MTC) 066. Interstate Commerce Commission 067. Indian Claims Commission 068. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement 069. Internal Revenue Service, Collector, Commissioner, or District Director of 070. Information Security Oversight Office 071. Department or Secretary of Labor 072. Loyalty Review Board 073. Legal Services Corporation 074. Merit Systems Protection Board 075. Multistate Tax Commission 076. National Aeronautics and Space Administration 077. Secretary or administrative unit or personnel of the U.S. Navy 078. National Credit Union Administration 079. National Endowment for the Arts 080. National Enforcement Commission 081. National Highway Traffic Safety Administration 082. National Labor Relations Board, or regional office or officer 083. National Mediation Board 084. National Railroad Adjustment Board 085. Nuclear Regulatory Commission 086. National Security Agency 087. Office of Economic Opportunity 088. Office of Management and Budget 089. Office of Price Administration, or Price Administrator 090. Office of Personnel Management 091. Occupational Safety and Health Administration 092. Occupational Safety and Health Review Commission 093. Office of Workers' Compensation Programs 094. Patent Office, or Commissioner of, or Board of Appeals of 095. Pay Board (established under the Economic Stabilization Act of 1970) 096. Pension Benefit Guaranty Corporation 097. U.S. Public Health Service 098. Postal Rate Commission 099. Provider Reimbursement Review Board 100. Renegotiation Board 101. Railroad Adjustment Board 102. Railroad Retirement Board 103. Subversive Activities Control Board 104. Small Business Administration 105. Securities and Exchange Commission 106. Social Security Administration or Commissioner 107. Selective Service System 108. Department or Secretary of the Treasury 109. Tennessee Valley Authority 110. United States Forest Service 111. United States Parole Commission 112. Postal Service and Post Office, or Postmaster General, or Postmaster 113. United States Sentencing Commission 114. Veterans' Administration or Board of Veterans' Appeals 115. War Production Board 116. Wage Stabilization Board 117. State Agency 118. Unidentifiable 119. Office of Thrift Supervision 120. Department of Homeland Security 121. Board of General Appraisers 122. Board of Tax Appeals 123. General Land Office or Commissioners 124. NO Admin Action 125. Processing Tax Board of Review Answer:
sc_respondent
111
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the respondent of the case. The respondent is the party being sued or tried and is also known as the appellee. Characterize the respondent as the Court's opinion identifies them. Identify the respondent by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer. Also note that the Court's characterization of the parties applies whether the respondent is actually single entitiy or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single respondent, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name. ALBEMARLE PAPER CO. et al. v. MOODY et al. No. 74-389. Argued April 14, 1975 — Decided June 25, 1975 Francis V. Lowden, Jr., argued the cause for petitioners in No. 74-389. With him on the briefs were Gordon G. Busdicker, Charles O’Connell, Charles F. Blanchard, and Julian R. Allsbrook, Jr. Warren Woods argued the cause for petitioner in No. 74r-428. With him on the brief was Leonard Appel. J. LeVonne Chambers argued the cause for respondents in both cases. With him on the brief were Jack Green-berg, James M. Nabrit III, Charles Stephen Ralston, Eric Schnapper, Morris J. Bailer, Barry L. Goldstein, Robert Belton, Conrad O. Pearson, T. T. Clayton, Albert J. Rosenthal, and Louis H. Poliak. James P. Turner argued the cause for the United States et al. as amici curiae urging affirmance in both cases. On the brief were Solicitor General Bork, Assistant Attorney General Pottinger, Mark L. Evans, Brian K. Landsberg, David L. Rose, John C. Hoyle, Julia C. Cooper, Joseph T. Eddins, and Beatrice Rosenberg Together with No. 74-428, Halifax Local No. 425, United Paper-makers & Paperworkers, AFL-CIO v. Moody et al., also on certiorari to the same court. Briefs of amici curiae in both cases were filed by Gerard C. Smetana, Jerry Kronenberg, Milton A. Smith, and Richard B. Berman for the Chamber of Commerce of the United States; by J. Harold Flannery, Paul R. Dimond, William E. Caldwell, Robert B. Wallace, William H. Brown III, Lloyd N. Cutler, and Erwin N. Griswold for the Lawyers’ Committee for Civil Rights Under Law; and by the American Society for Personnel Administration. John Vanderstar filed a brief for Scott Paper Co, as amicus curiae in No. 74-389. Mr. Justice Stewart delivered the opinion of the Court. These consolidated cases raise two important questions under Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended by the Equal Employment Opportunity Act of 1972, 86 Stat. 103, 42 U. S. C. § 2000e et seq. (1970 ed. and Supp. Ill): First: When employees or applicants for employment have lost the opportunity to earn wages because an employer has engaged in an unlawful discriminatory employment practice, what standards should a federal district court follow in deciding whether to award or deny backpay? Second: What must an employer show to establish that pre-employment tests racially discriminatory in effect, though not in intent, are sufficiently “job related” to survive challenge under Title VII? The respondents — plaintiffs in the District Court— are a certified class of present and former Negro employees at a paper mill in Roanoke Rapids, N. C.; the petitioners — defendants in the District Court— are the plant’s owner, the Albemarle Paper Co., and the plant employees’ labor union, Halifax Local No. 425. In August 1966, after filing a complaint with the Equal Employment Opportunity Commission (EEOC), and receiving notice of their right to sue, the respondents brought a class action in the United States District Court for the Eastern District of North Carolina, asking permanent injunctive relief against “any policy, practice, custom or usage” at the plant that violated Title VII. The respondents assured the court that the suit involved no claim for any monetary awards on a class basis, but in June 1970, after several years of discovery, the respondents moved to add a class demand for backpay. The court ruled that this issue would be considered at trial. At the trial, in July and August 1971, the major issues were the plant’s seniority system, its program of employment testing, and the question of backpay. In its opinion of November 9, 1971, the court found that the petitioners had “strictly segregated” the plant’s departmental “lines of progression” prior to January 1, 1964, reserving the higher paying and more skilled lines for whites. The “racial identifiability” of whole lines of progression persisted until 1968, when the lines were reorganized under a new collective-bargaining agreement. The court found, however, that this reorganization left Negro employees “ ‘locked’ in the lower paying job classifications.” The formerly “Negro” lines of progression had been merely tacked on to the bottom of the formerly “white” lines, and promotions, demotions, and layoffs continued to be governed — where skills were “relatively equal” — by a system of “job seniority.” Because of the plant’s previous history of overt segregation, only whites had seniority in the higher job categories. Accordingly, the court ordered the petitioners to implement a system of “plantwide” seniority. The court refused, however, to award backpay to the plaintiff class for losses suffered under the “job seniority” program. The court explained: “In the instant case there was no evidence of bad faith non-compliance with the Act. It appears that the company as early as 1964 began active recruitment of blacks for its Maintenance Apprentice Program. Certain lines of progression were merged on its own initiative, and as judicial decisions expanded the then existing interpretations of the Act, the defendants took steps to correct the abuses without delay.... “In addition, an award of back pay is an equitable remedy.... The plaintiffs’ claim for back pay was filed nearly five years after the institution of this action. It was not prayed for in the pleadings. Although neither party can be charged with deliberate dilatory tactics in bringing this cause to trial, it is apparent that the defendants would be substantially prejudiced by the granting of such affirmative relief. The defendants might have chosen to exercise unusual zeal in having this court determine their rights at an earlier date had they known that back pay would be at issue.” The court also refused to enjoin or limit Albemarle’s testing program. Albemarle had required applicants for employment in the skilled lines of progression to have a high school diploma and to pass two tests, the Revised Beta Examination, allegedly a measure of nonverbal intelligence, and the Wonderlic Personnel Test (available in alternative Forms A and B), allegedly a measure of verbal facility. After this Court’s decision in Griggs v. Duke Power Co., 401 U. S. 424 (1971), and on the eve of trial, Albemarle engaged an industrial psychologist to study the “job relatedness” of its testing program. His study compared the test scores of current employees with supervisorial judgments of their competence in ten job groupings selected from the middle or top of the plant’s skilled lines of progression. The study showed a.statistically significant correlation with supervisorial ratings in three job groupings for the Beta Test, in seven job groupings for either Form A or Form B of the Wonderlic Test, and in two job groupings for the required battery of both the Beta and the Wonderlic Tests. The respondents’ experts challenged the reliability of these studies, but the court concluded: “The personnel tests administered at the plant have undergone validation studies and have been proven to be job related. The defendants have carried the burden of proof in proving that these tests are ‘necessary for the safe and efficient operation of the business’ and are, therefore, permitted by the Act. However, the high school education requirement used in conjunction with the testing requirements is unlawful in that the personnel tests alone are adequate to measure the mental ability and reading skills required for the job classifications.” The petitioners did not seek review of the court’s judgment, but the respondents appealed the denial of a back-pay award and the refusal to enjoin or limit Albemarle’s use of pre-employment tests. A divided Court of Appeals for the Fourth Circuit reversed the judgment of the District Court, ruling that backpay should have been awarded and that use of the tests should have been enjoined, 474 F. 2d 134 (1973). As for backpay, the Court of Appeals held that an award could properly be requested after the complaint was filed and that an award could not be denied merely because the employer had not acted in “bad faith,” id., at 142: “Because of the compensatory nature of a back pay award and the strong congressional policy embodied in Title VII, a district court must exercise its discretion as to back pay in the same manner it must exercise discretion as to attorney fees under Title II of the Civil Rights Act.... Thus, a plaintiff or a complaining class who is successful in obtaining an injunction under Title VII of the Act should ordinarily be awarded back pay unless special circumstances would render such an award unjust. Newman v. Piggie Park Enterprises, 390 U. S. 400... (1968).” (Footnote omitted.) As for the pre-employment tests, the Court of Appeals held, id., at 138, that it was error “to approve a validation study done without job analysis, to allow Albemarle to require tests for 6 lines of progression where there has been no validation study at all, and to allow Albemarle to require a person to pass two tests for entrance into 7 lines of progression when only one of those tests was validated for that line of progression.” In so holding the Court of Appeals “gave great deference” to the “Guidelines on Employee Selection Procedures,” 29 CFR pt. 1607, which the EEOC has issued “as a workable set of standards for employers, unions and employment agencies in determining whether their selection procedures conform with the obligations contained in title VII...29 CFR § 1607.1 (c). We granted certiorari because of an evident Circuit conflict as to the standards governing awards of back-pay and as to the showing required to establish the “job relatedness” of pre-employment tests. II Whether a particular member of the plaintiff class should have been awarded any backpay and, if so, how much, are questions not involved in this review. The equities of individual cases were never reached. Though at least some of the members of the plaintiff class obviously suffered a loss of wage opportunities on account of Albemarle’s unlawfully discriminatory system of job seniority, the District Court decided that no backpay should be awarded to anyone in the class. The court declined to make such an award on two stated grounds: the lack of “evidence of bad faith non-compliance with the Act,” and the fact that “the defendants would be substantially prejudiced” by an award of backpay that was demanded contrary to an earlier representation and late in the progress of the litigation. Relying directly on Newman v. Piggie Park Enterprises, 390 U. S. 400 (1968), the Court of Appeals reversed, holding that back-pay could be denied only in “special circumstances.” The petitioners argue that the Court of Appeals was in error — that a district court has virtually unfettered discretion to award or deny backpay, and that there was no abuse of that discretion here. Piggie Park Enterprises, supra, is not directly in point. The Court held there that attorneys’ fees should “ordinarily” be awarded — i. in all but “special circumstances” — to plaintiffs successful in obtaining injunctions against discrimination in public accommodations, under Title II of the Civil Rights Act of 1964. While the Act appears to leave Title II fee awards to the district court’s discretion, 42 U. S. C. § 2000a-3 (b), the court determined that the great public interest in having injunctive actions brought could be vindicated only if successful plaintiffs, acting as “private attorneys general,” were awarded attorneys’ fees in all but very unusual circumstances. There is, of course, an equally strong public interest in having injunctive actions brought under Title VII, to eradicate discriminatory employment practices. But this interest can be vindicated by applying the Piggie Park standard to the attorneys’ fees provision of Title VII, 42 U. S. C. § 2000e-5 (k), see Northcross v. Memphis Board of Education, 412 U. S. 427, 428 (1973). For guidance as to the granting and denial of backpay, one must, therefore, look elsewhere. The petitioners contend that the statutory scheme provides no guidance, beyond indicating that backpay awards are within the District Court’s discretion. We disagree. It is true that backpay is not an automatic or mandatory remedy; like all other remedies under the Act, it is one which the courts “may” invoke. The scheme implicitly recognizes that there may be cases calling for one remedy but not another, and — owing to the structure of the federal judiciary — these choices are, of course, left in the first instance to the district courts. However, such discretionary choices are not left to a court’s “inclination, but to its judgment; and its judgment is to be guided by sound legal principles.” United States v. Burr, 25 F. Cas. 30, 35 (No. 14,692d) (CC Va. 1807) (Marshall, C. J.). The power to award backpay was bestowed by Congress, as part of a complex legislative design directed at a historic evil of national proportions. A court must exercise this power “in light of the large objectives of the Act,” Hecht Co. v. Bowles, 321 U. S. 321, 331 (1944). That the court’s discretion is equitable in nature, see Curtis v. Loether, 415 U. S. 189, 197 (1974), hardly means that it is unfettered by meaningful standards or shielded from thorough appellate review. In Mitchell v. DeMario Jewelry, 361 U. S. 288, 292 (1960), this Court held, in the face of a silent statute, that district courts enjoyed the “historic power of equity” to award lost wages to workmen unlawfully discriminated against under § 17 of the Fair Labor Standards Act of 1938, 52 Stat. 1069, as amended, 29 U. S. C. § 217 (1958 ed.) The Court simultaneously noted that “the statutory purposes [leave] little room for the exercise of discretion not to order reimbursement.” 361 U. S., at 296. It is true that “[e]quity eschews mechanical rules... [and] depends on flexibility.” Holmberg v. Armbrecht, 327 U. S. 392, 396 (1946). But when Congress invokes the Chancellor’s conscience to further transcendent legislative purposes, what is required is the principled application of standards consistent with those purposes and not “equity [which] varies like the Chancellor’s foot.” Important national goals would be frustrated by a regime of discretion that “produce [d] different results for breaches of duty in situations that cannot be differentiated in policy.” Moragne v. States Marine Lines, 398 U. S. 375, 405 (1970). The District Court’s decision must therefore be measured against the purposes which inform Title VII. As the Court observed in Griggs v. Duke Power Co., 401 U. S., at 429-430, the primary objective was a prophylactic one: “It was to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of white employees over other employees.” Backpay has an obvious connection with this purpose. If employers faced only the prospect of an injunctive order, they would have little incentive to shun practices of dubious legality. It is the reasonably certain prospect of a backpay award that “provide[s] the spur or catalyst which causes employers and unions to self-examine and to self-evaluate their employment practices and to endeavor to eliminate, so far as possible, the last vestiges of an unfortunate and ignominious page in this country’s history.” United States v. N. L. Industries, Inc., 479 F. 2d 354, 379 (CA8 1973). It is also the purpose of Title VII to make persons whole for injuries suffered on account of unlawful employment discrimination. This is shown by the very fact that Congress took care to arm the courts with full equitable powers. For it is the historic purpose of equity to “secur [e] complete justice,” Brown v. Swann, 10 Pet. 497, 503 (1836); see also Porter v. Warner Holding Co., 328 U. S. 395, 397-398 (1946). “[WJhere federally protected rights have been invaded, it has been the rule from the beginning that courts will be alert to adjust their remedies so as to grant the necessary relief.” Bell v. Hood, 327 U. S. 678, 684 (1946). Title VII deals with legal injuries of an economic character occasioned by racial or other antiminority discrimination. The terms “complete justice” and “necessary relief” have acquired a clear meaning in such circumstances. Where racial discrimination is concerned, “the [district] court has not merely the power but the duty to render a decree which will so far as possible eliminate the discriminatory effects of the past as well as bar like discrimination in the future.” Louisiana v. United States, 380 U. S. 145, 154 (1965). And where a legal injury is of an economic character, “[t]he general rule is, that when a wrong has been done, and the law gives a remedy, the compensation shall be equal to the injury. The latter is the standard by which the former is to be measured. The injured party is to be placed, as near as may be, in the situation he would have occupied if the wrong had not been committed.” Wicker v. Hoppock, 6 Wall. 94, 99 (1867). The “make whole” purpose of Title VII is made evident by the legislative history. The backpay provision was expressly modeled on the backpay provision of the National Labor Relations Act. Under that Act, “[m]aking the workers whole for losses suffered on account of an unfair labor practice is part of the vindication of the public policy which the Board. enforces.” Phelps Dodge Corp. v. NLRB, 313 U. S. 177, 197 (1941). See also Nathanson v. NLRB, 344 U. S. 25, 27 (1952); NLRB v. Rutter-Rex Mfg. Co., 396 U. S. 258, 263 (1969). We may assume that Congress was aware that the Board, since its inception, has awarded backpay as a matter of course — not randomly or in the exercise of a standardless discretion, and not merely where employer violations are peculiarly deliberate, egregious, or inexcusable. Furthermore, in passing the Equal Employment Opportunity Act of 1972, Congress considered several bills to limit the judicial power to award backpay. These limiting efforts were rejected, and the backpay provision was re-enacted substantially in its original form. A Section-by-Section Analysis introduced by Senator Williams to accompany the Conference Committee Report on the 1972 Act strongly reaffirmed the “make whole” purpose of Title VII: “The provisions of this subsection are intended to give the courts wide discretion exercising their equitable powers to fashion the most complete relief possible. In dealing with the present section 706 (g) the courts have stressed that the scope of relief under that section of the Act is intended to make the victims of unlawful discrimination whole, and that the attainment of this objective rests not only upon the elimination of the particular unlawful employment practice complained of, but also requires that persons aggrieved by the consequences and effects of the unlawful employment practice be, so far as possible, restored to a position where they would have been were it not for the unlawful discrimination.” 118 Cong. Rec. 7168 (1972). As this makes clear, Congress’ purpose in vesting a variety of “discretionary” powers in the courts was not to limit appellate review of trial courts, or to invite inconsistency and caprice, but rather to make possible the “fashion[ing] [of] the most complete relief possible.” It follows that, given a finding of unlawful discrimination, backpay should be denied only for reasons which, if applied generally, would not frustrate the central statutory purposes of eradicating discrimination throughout the economy and making persons whole for injuries suffered through past discrimination. The courts of appeals must maintain a consistent and principled application of the backpay provision, consonant with the twin statutory objectives, while at the same time recognizing that the trial court will often have the keener appreciation of those facts and circumstances peculiar to particular cases. The District Court’s stated grounds for denying back-pay in this case must be tested against these standards. The first ground was that Albemarle’s breach of Title VII had not been in “bad faith.” This is not a sufficient reason for denying backpay. Where an employer has shown bad faith — by maintaining a practice which he knew to be illegal or of highly questionable legality — he can make no claims whatsoever on the Chancellor’s conscience. But, under Title VII, the mere absence of bad faith simply opens the door to equity; it does not depress the scales in the employer’s favor. If backpay were awardable only upon a showing of bad faith, the remedy would become a punishment for moral turpitude, rather than a compensation for workers’ injuries. This would read the “make whole” purpose right out of Title VII, for a worker’s injury is no less real simply because his employer did not inflict it in “bad faith.” Title VII is not concerned with the employer’s “good intent or absence of discriminatory intent” for “Congress directed the thrust of the Act to the consequences of employment practices, not simply the motivation.” Griggs v. Duke Power Co., 401 U. S., at 432. See also Watson v. City of Memphis, 373 U. S. 526, 535 (1963); Wright v. Council of City of Emporia, 407 U. S. 451, 461-462 (1972). To condition the awarding of backpay on a showing of “bad faith” would be to open an enormous chasm between injunctive and backpay relief under Title VII. There is nothing on the face of the statute or in its legislative history that justifies the creation of drastic and categorical distinctions between those two remedies. The District Court also grounded its denial of backpay on the fact that the respondents initially disclaimed any interest in backpay, first asserting their claim five years after the complaint was filed. The court concluded that the petitioners had been “prejudiced” by this conduct. The Court of Appeals reversed on the ground “that the broad aims of Title VII require that the issue of back pay be fully developed and determined even though it was not raised until the post-trial stage of litigation,” 474 F. 2d, at 141. It is true that Title VII contains no legal bar to raising backpay claims after the complaint for injunctive relief has been filed, or indeed after a trial on that complaint has been had. Furthermore, Fed. Rule Civ. Proc. 54 (c) directs that “every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the Question: Who is the respondent of the case? 001. attorney general of the United States, or his office 002. specified state board or department of education 003. city, town, township, village, or borough government or governmental unit 004. state commission, board, committee, or authority 005. county government or county governmental unit, except school district 006. court or judicial district 007. state department or agency 008. governmental employee or job applicant 009. female governmental employee or job applicant 010. minority governmental employee or job applicant 011. minority female governmental employee or job applicant 012. not listed among agencies in the first Administrative Action variable 013. retired or former governmental employee 014. U.S. House of Representatives 015. interstate compact 016. judge 017. state legislature, house, or committee 018. local governmental unit other than a county, city, town, township, village, or borough 019. governmental official, or an official of an agency established under an interstate compact 020. state or U.S. supreme court 021. local school district or board of education 022. U.S. Senate 023. U.S. senator 024. foreign nation or instrumentality 025. state or local governmental taxpayer, or executor of the estate of 026. state college or university 027. United States 028. State 029. person accused, indicted, or suspected of crime 030. advertising business or agency 031. agent, fiduciary, trustee, or executor 032. airplane manufacturer, or manufacturer of parts of airplanes 033. airline 034. distributor, importer, or exporter of alcoholic beverages 035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked 036. American Medical Association 037. National Railroad Passenger Corp. 038. amusement establishment, or recreational facility 039. arrested person, or pretrial detainee 040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association 041. author, copyright holder 042. bank, savings and loan, credit union, investment company 043. bankrupt person or business, or business in reorganization 044. establishment serving liquor by the glass, or package liquor store 045. water transportation, stevedore 046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines 047. brewery, distillery 048. broker, stock exchange, investment or securities firm 049. construction industry 050. bus or motorized passenger transportation vehicle 051. business, corporation 052. buyer, purchaser 053. cable TV 054. car dealer 055. person convicted of crime 056. tangible property, other than real estate, including contraband 057. chemical company 058. child, children, including adopted or illegitimate 059. religious organization, institution, or person 060. private club or facility 061. coal company or coal mine operator 062. computer business or manufacturer, hardware or software 063. consumer, consumer organization 064. creditor, including institution appearing as such; e.g., a finance company 065. person allegedly criminally insane or mentally incompetent to stand trial 066. defendant 067. debtor 068. real estate developer 069. disabled person or disability benefit claimant 070. distributor 071. person subject to selective service, including conscientious objector 072. drug manufacturer 073. druggist, pharmacist, pharmacy 074. employee, or job applicant, including beneficiaries of 075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan 076. electric equipment manufacturer 077. electric or hydroelectric power utility, power cooperative, or gas and electric company 078. eleemosynary institution or person 079. environmental organization 080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer. 081. farmer, farm worker, or farm organization 082. father 083. female employee or job applicant 084. female 085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of 086. fisherman or fishing company 087. food, meat packing, or processing company, stockyard 088. foreign (non-American) nongovernmental entity 089. franchiser 090. franchisee 091. lesbian, gay, bisexual, transexual person or organization 092. person who guarantees another's obligations 093. handicapped individual, or organization of devoted to 094. health organization or person, nursing home, medical clinic or laboratory, chiropractor 095. heir, or beneficiary, or person so claiming to be 096. hospital, medical center 097. husband, or ex-husband 098. involuntarily committed mental patient 099. Indian, including Indian tribe or nation 100. insurance company, or surety 101. inventor, patent assigner, trademark owner or holder 102. investor 103. injured person or legal entity, nonphysically and non-employment related 104. juvenile 105. government contractor 106. holder of a license or permit, or applicant therefor 107. magazine 108. male 109. medical or Medicaid claimant 110. medical supply or manufacturing co. 111. racial or ethnic minority employee or job applicant 112. minority female employee or job applicant 113. manufacturer 114. management, executive officer, or director, of business entity 115. military personnel, or dependent of, including reservist 116. mining company or miner, excluding coal, oil, or pipeline company 117. mother 118. auto manufacturer 119. newspaper, newsletter, journal of opinion, news service 120. radio and television network, except cable tv 121. nonprofit organization or business 122. nonresident 123. nuclear power plant or facility 124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels 125. shareholders to whom a tender offer is made 126. tender offer 127. oil company, or natural gas producer 128. elderly person, or organization dedicated to the elderly 129. out of state noncriminal defendant 130. political action committee 131. parent or parents 132. parking lot or service 133. patient of a health professional 134. telephone, telecommunications, or telegraph company 135. physician, MD or DO, dentist, or medical society 136. public interest organization 137. physically injured person, including wrongful death, who is not an employee 138. pipe line company 139. package, luggage, container 140. political candidate, activist, committee, party, party member, organization, or elected official 141. indigent, needy, welfare recipient 142. indigent defendant 143. private person 144. prisoner, inmate of penal institution 145. professional organization, business, or person 146. probationer, or parolee 147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer 148. public utility 149. publisher, publishing company 150. radio station 151. racial or ethnic minority 152. person or organization protesting racial or ethnic segregation or discrimination 153. racial or ethnic minority student or applicant for admission to an educational institution 154. realtor 155. journalist, columnist, member of the news media 156. resident 157. restaurant, food vendor 158. retarded person, or mental incompetent 159. retired or former employee 160. railroad 161. private school, college, or university 162. seller or vendor 163. shipper, including importer and exporter 164. shopping center, mall 165. spouse, or former spouse 166. stockholder, shareholder, or bondholder 167. retail business or outlet 168. student, or applicant for admission to an educational institution 169. taxpayer or executor of taxpayer's estate, federal only 170. tenant or lessee 171. theater, studio 172. forest products, lumber, or logging company 173. person traveling or wishing to travel abroad, or overseas travel agent 174. trucking company, or motor carrier 175. television station 176. union member 177. unemployed person or unemployment compensation applicant or claimant 178. union, labor organization, or official of 179. veteran 180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL) 181. wholesale trade 182. wife, or ex-wife 183. witness, or person under subpoena 184. network 185. slave 186. slave-owner 187. bank of the united states 188. timber company 189. u.s. job applicants or employees 190. Army and Air Force Exchange Service 191. Atomic Energy Commission 192. Secretary or administrative unit or personnel of the U.S. Air Force 193. Department or Secretary of Agriculture 194. Alien Property Custodian 195. Secretary or administrative unit or personnel of the U.S. Army 196. Board of Immigration Appeals 197. Bureau of Indian Affairs 198. Bonneville Power Administration 199. Benefits Review Board 200. Civil Aeronautics Board 201. Bureau of the Census 202. Central Intelligence Agency 203. Commodity Futures Trading Commission 204. Department or Secretary of Commerce 205. Comptroller of Currency 206. Consumer Product Safety Commission 207. Civil Rights Commission 208. Civil Service Commission, U.S. 209. Customs Service or Commissioner of Customs 210. Defense Base Closure and REalignment Commission 211. Drug Enforcement Agency 212. Department or Secretary of Defense (and Department or Secretary of War) 213. Department or Secretary of Energy 214. Department or Secretary of the Interior 215. Department of Justice or Attorney General 216. Department or Secretary of State 217. Department or Secretary of Transportation 218. Department or Secretary of Education 219. U.S. Employees' Compensation Commission, or Commissioner 220. Equal Employment Opportunity Commission 221. Environmental Protection Agency or Administrator 222. Federal Aviation Agency or Administration 223. Federal Bureau of Investigation or Director 224. Federal Bureau of Prisons 225. Farm Credit Administration 226. Federal Communications Commission (including a predecessor, Federal Radio Commission) 227. Federal Credit Union Administration 228. Food and Drug Administration 229. Federal Deposit Insurance Corporation 230. Federal Energy Administration 231. Federal Election Commission 232. Federal Energy Regulatory Commission 233. Federal Housing Administration 234. Federal Home Loan Bank Board 235. Federal Labor Relations Authority 236. Federal Maritime Board 237. Federal Maritime Commission 238. Farmers Home Administration 239. Federal Parole Board 240. Federal Power Commission 241. Federal Railroad Administration 242. Federal Reserve Board of Governors 243. Federal Reserve System 244. Federal Savings and Loan Insurance Corporation 245. Federal Trade Commission 246. Federal Works Administration, or Administrator 247. General Accounting Office 248. Comptroller General 249. General Services Administration 250. Department or Secretary of Health, Education and Welfare 251. Department or Secretary of Health and Human Services 252. Department or Secretary of Housing and Urban Development 253. Interstate Commerce Commission 254. Indian Claims Commission 255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement 256. Internal Revenue Service, Collector, Commissioner, or District Director of 257. Information Security Oversight Office 258. Department or Secretary of Labor 259. Loyalty Review Board 260. Legal Services Corporation 261. Merit Systems Protection Board 262. Multistate Tax Commission 263. National Aeronautics and Space Administration 264. Secretary or administrative unit of the U.S. Navy 265. National Credit Union Administration 266. National Endowment for the Arts 267. National Enforcement Commission 268. National Highway Traffic Safety Administration 269. National Labor Relations Board, or regional office or officer 270. National Mediation Board 271. National Railroad Adjustment Board 272. Nuclear Regulatory Commission 273. National Security Agency 274. Office of Economic Opportunity 275. Office of Management and Budget 276. Office of Price Administration, or Price Administrator 277. Office of Personnel Management 278. Occupational Safety and Health Administration 279. Occupational Safety and Health Review Commission 280. Office of Workers' Compensation Programs 281. Patent Office, or Commissioner of, or Board of Appeals of 282. Pay Board (established under the Economic Stabilization Act of 1970) 283. Pension Benefit Guaranty Corporation 284. U.S. Public Health Service 285. Postal Rate Commission 286. Provider Reimbursement Review Board 287. Renegotiation Board 288. Railroad Adjustment Board 289. Railroad Retirement Board 290. Subversive Activities Control Board 291. Small Business Administration 292. Securities and Exchange Commission 293. Social Security Administration or Commissioner 294. Selective Service System 295. Department or Secretary of the Treasury 296. Tennessee Valley Authority 297. United States Forest Service 298. United States Parole Commission 299. Postal Service and Post Office, or Postmaster General, or Postmaster 300. United States Sentencing Commission 301. Veterans' Administration 302. War Production Board 303. Wage Stabilization Board 304. General Land Office of Commissioners 305. Transportation Security Administration 306. Surface Transportation Board 307. U.S. Shipping Board Emergency Fleet Corp. 308. Reconstruction Finance Corp. 309. Department or Secretary of Homeland Security 310. Unidentifiable 311. International Entity Answer:
songer_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. William Oliver JOHNSON, Defendant-Appellant. No. 16962. United States Court of Appeals Seventh Circuit. April 18, 1969. Jerry P. Belknap, Jon D. Noland, Indianapolis, Ind., for defendant-appellant; Barnes, Hickam, Pantzer & Boyd, Indianapolis, Ind., of counsel. K. Edwin Applegate, U. S. Atty., Robert L. Baker, Asst. U. S. Atty., Indianapolis, Ind., for plaintiff-appellee. Before CASTLE, Chief Judge, and FAIRCHILD and CUMMINGS, Circuit Judges. CUMMINGS, Circuit Judge. Defendant was indicted for storing and concealing a stolen 1965 Chrysler, knowing it to have been stolen, in violation of Section 2313 of the Criminal Code (18 U.S.C. § 2313). The jury returned a verdict of guilty, and defendant received a six-month sentence with 1% years of probation to follow. The appeal is from this conviction. According to the evidence, this automobile was stolen in Berkeley, California, in early November 1966. Ira Summers delivered the car to defendant in St. Louis. Summers testified that he asked defendant to give him $75 for the car and that defendant promised to pay that amount but never did so. Defendant drove the car from St. Louis to Indianapolis some time in November. He testified that he employed the car from his personal use, that it was stolen from him and later recovered. Although defendant intended to have the Chrysler repaired after its recovery, he first took the wheels off the car and placed it on blocks in January 1967 so that no one could take it out of his yard. Two Indianapolis police officers observed it there, arrested defendant and impounded the car. After his January 12, 1967, arrest, defendant was twice questioned by FBI agents at the Indianapolis Police Department. At each of these 50-minute interviews, defendant signed inconsistent written statements. He refused to execute a written statement during a third interview in April 1967, but orally furnished the same information as in his second signed statement. On each of these three occasions, he executed a standard waiver of rights form. Over defendant’s objections, his two written statements and the three executed waiver of rights forms were admitted in evidence, and FBI agent Stuart was permitted to testify as to defendant’s oral statements. As grounds for reversal, defendant asserts that the trial judge should have conducted a preliminary hearing out of the presence of the jury as to the voluntariness of these statements. Defendant also assails the interstate commerce instruction and claims that there was inconsistency in the instructions relating to perpetration of the overt acts. We agree that a new trial is required. Necessity for Preliminary Evidentiary Hearing on Voluntariness of Defendant’s Statements The principal error raised is the admission of the three statements made by defendant to FBI agents without a preliminary hearing and determination of voluntariness by the trial court, outside the presence of the jury. Although apparently not bringing Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, 1 A.L.R.3d 1205, to the trial court’s attention, defendant’s counsel did request such a preliminary hearing. The Government now concedes that the exculpatory statements introduced were subject to the same standards of voluntariness as confessions and that the failure to hold a hearing in order to make an initial determination of this question was erroneous and requires a remand. On the other hand, the Government opposes a new trial. Our conclusion is that a new trial is necessary. To relegate defendant in the present case to a hearing on the issue of voluntariness of statements admitted in his trial almost four years after the decision in Jackson v. Denno would in effect make the protections afforded by that decision optional with the trial judge in future cases. Moreover, where, as here, the voluntariness of the statements has been raised on direct appeal in federal post -Jackson cases in which the defendant did not voluntarily testify prior to the Government’s attempt to introduce the statements, the Supreme Court intended to require a new trial, for it stated “It is both practical and desirable that in cases to be tried hereafter a proper determination of voluntariness be made prior to the admission of the confession to the jury which is adjudicating guilt or innocence” (378 U.S. at p. 395, 84 S.Ct. at p. 1791). Jackson was not given a new trial because he had been convicted in a state court prior to the Supreme Court’s new holding and was seeking collateral relief. Id. We cannot believe that the Supreme Court contemplated that defendants should continue to face the difficult choice of allowing such statements to go to the jury unchallenged or waiving the privilege not to testify in order to contest the voluntariness of the statements. Cf. United States v. Nielsen, 392 F.2d 849, 852 (7th Cir. 1968). Here the trial court’s refusal to conduct a preliminary evidentiary hearing and to make a preliminary finding of voluntariness compelled defendant to make this choice. Defendant is entitled to a new trial at which the district court must conduct a preliminary hearing outside the presence of the jury on the issue of voluntariness. Adequacy of Interstate Commerce Instruction In the interest of eliminating doubt as to the validity of the challenged instructions on retrial, we examine the asserted errors. The trial court sent all given instructions to the jury for consideration during its deliberations. The first instruction repeated the words of the indictment which claimed that the Chrysler “was moving as interstate commerce” from Berkeley, California, to Indianapolis, Indiana, at the time defendant stored it and concealed it “on or about January 11, 1967.” The ninth instruction quoted the pertinent part of Section 2313 of the Criminal Code proscribing the storage or concealment of a motor vehicle “moving as * * * interstate * * * commerce, knowing the same to have been stolen * * The final reference to interstate commerce in the court’s charge was contained in the tenth instruction, providing as follows: “In order to warrant the conviction of the defendant under the indictment in this case, the government must prove beyond reasonable doubt by the evidence: “1. That the vehicle described in the indictment was stolen; “2. That the said motor vehicle was moving as interstate commerce from Berkeley, California to Indianapolis, Indiana; “3. That the defendant stored and concealed the said motor vehicle in question; “4. That the defendant, when he stored and concealed the motor vehicle described in the indictment, if he stored and concealed it, knew that it was stolen property.” Defendant did not object to these instructions but successfully moved to amend the tenth one to read “stored and concealed” where, as proposed by the Government, it said “stored and received.” Defendant later tendered his own interstate commerce instruction providing : “You are instructed that unless you find that the defendant actually stored and concealed the motor vehicle described in the indictment while it was moving in interstate commerce, knowing it to be stolen, you must find the defendant not guilty.” This proposed instruction was denied because the district court concluded it was already covered. Defendant was not charged in the indictment with having stolen the Chrysler, nor with having transported it across state lines; the acts of concealing and storing the car in Indianapolis on or about January 11, 1967, are the gravamen of the crime charged. If the court had instructed the jurors that they could find the Chrysler was moving in interstate commerce from Berkeley, California, to St. Louis, Missouri, and no evidence had been adduced to show that the car was still in commerce on or about January 11 when defendant was discovered in possession of it in Indianapolis, defendant’s proposed instruction certainly would have been necessary. It has been held that where the defendant is not shown to have stolen the car or transported it, and there is no proof as to when or where the car entered the state, it is error to refuse an instruction that the Government had the burden of showing that the car was in interstate commerce at the time of the alleged acts of concealment. McAdams v. United States, 74 F.2d 37, 39 (8th Cir. 1934); Davidson v. United States, 61 F.2d 250, 255 (8th Cir. 1932); Wolf v. United States, 36 F.2d 450, 452 (7th Cir. 1929). However, the proof in the present case was ample to permit the jury to conclude that defendant himself transported the car from St. Louis to Indianapolis, knowing it to have been stolen. As the defendant rightly observes, the question whether a stolen car was a part of interstate commerce at the time of the alleged offense must be submitted to the jury. Schwachter v. United States, 237 F.2d 640, 644 (6th Cir. 1956). In our view, the first, ninth and tenth instructions taken together sufficiently advised the jury that it could not find defendant guilty if the car was not still “moving as interstate commerce” from Berkeley, California, to Indianapolis, Indiana, at the time of the storage and concealment in Indianapolis. Defendant urges that it was the theory of the defense that even if the ear was in commerce in November when defendant first brought it into Indianapolis, it had come to rest by reason of its intervening use and the alleged theft and recovery of the car during the period between November 1966 and January 11, 1967. But the fact that one who transports a stolen car in interstate commerce allows it to remain in the state or fails to exercise control over the car for a period of time does not mean that a jury is required to find that the car was no longer moving in interstate commerce. United States v. Meek, 388 F.2d 936, 938 (7th Cir. 1968). The jury’s guilty verdict found against the defendant on this issue, and he does not argue that its verdict was unsupported by the evidence. In the circumstances of this case, no prejudicial error occurred by reason of the court’s refusal to give the interstate commerce instruction tendered by the defendant. However, at the new trial, a single instruction to the effect that the jury must find the car to be moving in interstate commerce at the time of the acts of storage and concealment would eliminate any possibility of confusion. Alleged Inconsistency in Instructions 6 and 10 Instruction 10 charged that the Government must prove beyond a reasonable doubt that the defendant stored and concealed the Chrysler. Defendant concedes that this instruction “may have correctly charged the jury as to the law applicable to this case.” However, defendant contends that the following Instruction 6, “in the abstract * * * a correct statement of the law,” is inconsistent with Instruction 10: “Every person who wilfully participates in the commission of a crime may be found guilty of that offense. A defendant need not personally perpetrate' every act constituting the offense charged in order to be found guilty.” At the trial, defense counsel objected to Instruction 6 on the ground that it “would mislead the jury into thinking that the defendant need not be personally involved” and accordingly conflict with Instruction 10. Since Instruction 6 refers to wilful participation in the commission of the crime, it is not truly inconsistent with the statement in Instruction 10 that the Government must prove beyond a reasonable doubt “That the defendant stored and concealed the said motor vehicle in question.” Taken together, it iá obvious that the defendant could be found guilty if he participated in the storage and concealment even though he did not personally perpetrate every act of storage and concealment. This accords with Section 2 of the Criminal Code (18 U.S.C. § 2) relating to principals. The verdict was proper whether the jury found defendant guilty because he personally perpetrated the storage and concealment or because he wilfully participated in it. Therefore, there was no reversible error in giving Instructions 6 and 10. But on retrial it would be desirable to give the jury more guidance as to the criminal liability of an aider and abetter if the evidence should warrant any instruction on this issue. Jerry P. Belknap and Jon D. Noland of the Indianapolis bar were appointed to represent defendant here under the provisions of the Criminal Justice Act of 1964. They are to be complimented for the excellence of their services on this appeal. Reserved and remanded for a new trial. . Compare United States v. Feinberg, 383 F.2d 60, 70 (2d Cir. 1967), certiorari denied, 389 U.S. 1044, 88 S.Ct. 788, 19 L.Ed.2d 836. In that case the court noted in dictum that a remand might be all that is required in a post -Jackson case, but there Feinberg had independently-chosen to take the stand prior to the admission of his statement. . See also Smith v. Texas, 395 F.2d 958, 962-963 (5th Cir. 1968); Fisher v. United States, 382 F.2d 31, 34-35 (5th Cir. 1967); Trotter v. Stephens, 241 F.Supp. 33, 48-49 (E.D.Ark.1965). 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_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". MATCOVICH v. NICKELL, Collector of Internal Revenue. No. 10191. Circuit Court of Appeals, Ninth Circuit. March 30, 1943. R. H. Schwab, of Sacramento, Cal., for appellant. Samuel O. Clark, Jr., Asst. Atty. Gen., Sewall Key, J. Louis Monarch, and Mills Kitchin, Sp. Assts. to the Atty. Gen., and Frank J. Hennessy, U. S. Atty., and Esther B. Phillips, Asst. U. S. Atty., both of San Francisco, Cal., for appellee. Before WILBUR, GARRECHT, and HEALY, Circuit Judges. PER CURIAM. The appellant filed suit in the district court to enjoin collection by the appellee of assessments levied under the Federal Unemployment Tax Act, 53 Stat., Part 1, p. 183, § 1600, I.R.C., 26 U.S.C.A.Int.Rev. Code, § 1600, and the Federal Insurance Contributions Act, 53 Stat., Part 1, p. 175, § 1400, I.R.C., 26 U.S.C.A.Int.Rev.Code, § 1400, upon the ground that persons occupied about premises conducted by appellant, whose status fixed liability under the above statutes, were not employees of appellant, and that, therefore, the taxes were not applicable. The appellee moved to dismiss upon the ground that “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court.” Section 3653, I.R.C., 26 U.S.C.A. Int.Rev.Code, § 3653, 53 Stat., Part 1, p. 446. The motion to dismiss was granted, and judgment entered accordingly, from which the appeal is taken. Matcovich based his bill for injunctive relief upon two grounds: (1) Inapplicability of the tax. He alleged that the persons by whose presence and occupation the tax attached were not employees, but licensees, and that he was not their employer and, hence, not liable for the tax. (2) Irreparable injury. He alleged that he was unable to pay the tax without serious and irreparable injury to his business, which injury could not be remedied by recovery had thereafter as a result of suit for refund. Section 3653 of the Internal Revenue Code prohibits suits to restrain the assessment or collection “of any tax” “in any court.” Despite the positive prohibition of Section 3653, I.R.C., it has been held that there may be a case stated wherein injunctive relief properly may be granted to restrain the assessment or collection of a tax. See, for instance, Miller v. Standard Nut Margarine Co., 284 U.S. 498, 509, 510, 52 S.Ct. 260, 76 L.Ed. 422; Graham v. DuPont, 262 U.S. 234, 43 S.Ct. 567, 67 L.Ed. 965; Allen v. Regents, 304 U.S. 439, 445, 58 S.Ct. 980, 82 L.Ed. 1448. But such a case must, obviously, be the unusual, the extraordinary case. Mere illegality of the exaction is not sufficient to justify a holding that the statute is not applicable (Allen v. Shelton, 5 Cir., 96 F.2d 102), nor is hardship to the taxpayer. Kaus v. Huston, 8 Cir., 120 F.2d 183, 185. We think Section 3653, I.R.C. applies except in a case wherein it is shown, in addition to the fundamental allegations necessary to obtain injunctive relief, that under no possibility could the attempted exaction be held legal (cf. Miller v. Standard Nut Margarine Co., supra), or in the unusual and extraordinary circumstances such as confronted the court in Graham v. DuPont, 262 U.S. 234, 43 S.Ct. 567, 67 L.Ed. 965, and in Allen v. Regents, 304 U.S. 439, 445, 58 S.Ct. 980, 82 L.Ed. 1448. Appellant has stated no such case. Moreover, this court has just decided that the employer-employee relationship did exist between Matcovich and the persons occupied about the premises conducted by him, which renders his claim altogether untenable. See Matcovich v. Anglim, Collector, 9 Cir., 134 F.2d 834, decided March 30, 1943. Judgment affirmed. Question: In what state or territory was the case first heard? 01. not 02. Alabama 03. Alaska 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. Florida 11. Georgia 12. Hawaii 13. Idaho 14. Illinois 15. Indiana 16. Iowa 17. Kansas 18. Kentucky 19. Louisiana 20. Maine 21. Maryland 22. Massachussets 23. Michigan 24. Minnesota 25. Mississippi 26. Missouri 27. Montana 28. Nebraska 29. Nevada 30. New 31. New 32. New 33. New 34. North 35. North 36. Ohio 37. Oklahoma 38. Oregon 39. Pennsylvania 40. Rhode 41. South 42. South 43. Tennessee 44. Texas 45. Utah 46. Vermont 47. Virginia 48. Washington 49. West 50. Wisconsin 51. Wyoming 52. Virgin 53. Puerto 54. District 55. Guam 56. not 57. Panama Answer:
sc_partywinning
B
What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the petitioning party (i.e., the plaintiff or the appellant) emerged victorious. The victory the Supreme Court provided the petitioning party may not have been total and complete (e.g., by vacating and remanding the matter rather than an unequivocal reversal), but the disposition is nonetheless a favorable one. Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. UNITED STATES, Petitioner v. KWAI FUN WONG. United States, Petitioner v. Marlene June, Conservator. Nos. 13-1074 13-1075. Supreme Court of the United States Argued Dec. 10, 2014. Decided April 22, 2015. Roman Martinez, Washington, D.C., for Petitioner. Eric Schnapper, Seattle, WA, for Respondent. Donald B. Verrilli, Jr., Solicitor General, Counsel of Record, Department of Justice, Washington, D.C., for Petitioner. Eric Schnapper, University of Washington School of Law, Seattle, WA, Tom Steenson, Portland, OR, Beth Creighton, Michael Rose, Creighton & Rose, P.C., Portland, OR, for Respondent. John P. Leader, Leader Law Firm, Tucson, AZ, Stanley G. Feldman, Stanley G. Feldman PLC, Tucson, AZ, E. Joshua Rosenkranz, Counsel of Record, Robert M. Loeb, Brian D. Ginsberg, David W.A. Spencer, Orrick, Herrington & Sutcliffe LLP, New York, NY, for Respondent. Donald B. Verrilli, Jr., Solicitor General, Counsel of Record, Stuart F. Delery, Assistant Attorney General, Edwin S. Kneedler, Deputy Solicitor General, Roman Martinez, Assistant to the Solicitor General, Mark B. Stern, Anne Murphy, Adam C. Jed, Attorneys, Department of Justice, Washington, D.C., for Petitioner. Opinion Justice KAGANdelivered the opinion of the Court. The Federal Tort Claims Act (FTCA or Act) provides that a tort claim against the United States "shall be forever barred" unless it is presented to the "appropriate Federal agency within two years after such claim accrues" and then brought to federal court "within six months" after the agency acts on the claim. 28 U.S.C. § 2401(b). In each of the two cases we resolve here, the claimant missed one of those deadlines, but requested equitable tolling on the ground that she had a good reason for filing late. The Government responded that § 2401(b)'s time limits are not subject to tolling because they are jurisdictional restrictions. Today, we reject the Government's argument and conclude that courts may toll both of the FTCA's limitations periods. I In the first case, respondent Kwai Fun Wong asserts that the Immigration and Naturalization Service (INS) falsely imprisoned her for five days in 1999. As the FTCA requires, Wong first presented that claim to the INS within two years of the alleged unlawful action. See § 2401(b); § 2675(a). The INS denied the administrative complaint on December 3, 2001. Under the Act, that gave Wong six months, until June 3, 2002, to bring her tort claim in federal court. See § 2401(b). Several months prior to the INS's decision, Wong had filed suit in federal district court asserting various non-FTCA claims against the Government arising out of the same alleged misconduct. Anticipating the INS's ruling, Wong moved in mid-November 2001 to amend the complaint in that suit by adding her tort claim. On April 5, 2002, a Magistrate Judge recommended granting Wong leave to amend. But the District Court did not finally adopt that proposal until June 25-three weeks afterthe FTCA's 6-month deadline. The Government moved to dismiss the tort claim on the ground that it was filed late. The District Court at first rejected the motion. It recognized that Wong had managed to add her FTCA claim only after § 2401(b)'s 6-month time period had expired. But the court equitably tolled that period for all the time between the Magistrate Judge's recommendation and its own order allowing amendment, thus bringing Wong's FTCA claim within the statutory deadline. Several years later, the Government moved for reconsideration of that ruling based on an intervening Ninth Circuit decision. This time, the District Court dismissed Wong's claim, reasoning that § 2401(b)'s 6-month time bar was jurisdictional and therefore not subject to equitable tolling. On appeal, the Ninth Circuit agreed to hear the case en banc to address an intra-circuit conflict on the issue. The en banc court held that the 6-month limit is not jurisdictional and that equitable tolling is available. Kwai Fun Wong v. Beebe,732 F.3d 1030 (2013). It then confirmed the District Court's prior ruling that the circumstances here justify tolling because Wong "exercis [ed] due diligence" in attempting to amend her complaint before the statutory deadline. Id.,at 1052. The second case before us arises from a deadly highway accident. Andrew Booth was killed in 2005 when a car in which he was riding crossed through a cable median barrier and crashed into oncoming traffic. The following year, respondent Marlene June, acting on behalf of Booth's young son, filed a wrongful death action alleging that the State of Arizona and its contractor had negligently constructed and maintained the median barrier. Years into that state-court litigation, June contends, she discovered that the Federal Highway Administration (FHWA) had approved installation of the barrier knowing it had not been properly crash tested. Relying on that new information, June presented a tort claim to the FHWA in 2010, more than five years after the accident. The FHWA denied the claim, and June promptly filed this action in federal district court. The court dismissed the suit because June had failed to submit her claim to the FHWA within two years of the collision. The FTCA's 2-year bar, the court ruled, is jurisdictional and therefore not subject to equitable tolling; accordingly, the court did not consider June's contention that tolling was proper because the Government had concealed its failure to require crash testing. On appeal, the Ninth Circuit reversed in light of its recent decision in Wong,thus holding that § 2401(b)'s 2-year deadline, like its 6-month counterpart, is not jurisdictional and may be tolled. 550 Fed.Appx. 505 (2013). We granted certiorari in both cases, 573 U.S. ----, 134 S.Ct. 2873, 189 L.Ed.2d 831, 832 (2014), to resolve a circuit split about whether courts may equitably toll § 2401(b)'s two time limits. Compare, e.g., In re FEMA Trailer Formaldehyde Prods. Liability Litigation,646 F.3d 185, 190-191 (C.A.5 2011)(per curiam) (tolling not available), with Arteaga v. United States,711 F.3d 828, 832-833 (C.A.7 2013)(tolling allowed).We now affirm the Court of Appeals' rulings. II Irwin v. Department of Veterans Affairs,498 U.S. 89, 95, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990), sets out the framework for deciding "the applicability of equitable tolling in suits against the Government." In Irwin,we recognized that time bars in suits between privateparties are presumptively subject to equitable tolling. See id.,at 95-96, 111 S.Ct. 453.That means a court usually may pause the running of a limitations statute in private litigation when a party "has pursued his rights diligently but some extraordinary circumstance" prevents him from meeting a deadline. Lozano v. Montoya Alvarez,572 U.S. 1, ----, 134 S.Ct. 1224, 1231-1232, 188 L.Ed.2d 200 (2014). We held in Irwinthat "the same rebuttable presumption of equitable tolling" should also apply to suits brought against the United States under a statute waiving sovereign immunity. 498 U.S., at 95-96, 111 S.Ct. 453. Our old "ad hoc," law-by-law approach to determining the availability of tolling in those suits, we reasoned, had produced inconsistency and "unpredictability" without the offsetting virtue of enhanced "fidelity to the intent of Congress." Id.,at 95, 111 S.Ct. 453. Adopting the "general rule" used in private litigation, we stated, would "amount[ ] to little, if any, broadening" of a statutory waiver of immunity. Ibid.Accordingly, we thought such a presumption "likely to be a realistic assessment of legislative intent as well as a practically useful" rule of interpretation. Ibid. A rebuttable presumption, of course, may be rebutted, so Irwindoes not end the matter. When enacting a time bar for a suit against the Government (as for one against a private party), Congress may reverse the usual rule if it chooses. See id.,at 96, 111 S.Ct. 453. The Government may therefore attempt to establish, through evidence relating to a particular statute of limitations, that Congress opted to forbid equitable tolling. One way to meet that burden-and the way the Government pursues here-is to show that Congress made the time bar at issue jurisdictional.When that is so, a litigant's failure to comply with the bar deprives a court of all authority to hear a case. Hence, a court must enforce the limitation even if the other party has waived any timeliness objection. See Gonzalez v. Thaler,565 U.S. ----, ---- - ----, 132 S.Ct. 641, 648, 181 L.Ed.2d 619 (2012). And, more crucially here, a court must do so even if equitable considerations would support extending the prescribed time period. See John R. Sand & Gravel Co. v. United States,552 U.S. 130, 133-134, 128 S.Ct. 750, 169 L.Ed.2d 591 (2008). Given those harsh consequences, the Government must clear a high bar to establish that a statute of limitations is jurisdictional. In recent years, we have repeatedly held that procedural rules, including time bars, cabin a court's power only if Congress has "clearly state[d]" as much. Sebelius v. Auburn Regional Medical Center,568 U.S. ----, ----, 133 S.Ct. 817, 824, 184 L.Ed.2d 627 (2013)(quoting Arbaugh v. Y & H Corp.,546 U.S. 500, 515, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006)); see Gonzalez,565 U.S., at ---- - ----, 132 S.Ct., at 648-649. "[A]bsent such a clear statement,... 'courts should treat the restriction as nonjurisdictional.' " Auburn Regional,568 U.S., at ---- - ----, 133 S.Ct., at 824(quoting Arbaugh,546 U.S., at 516, 126 S.Ct. 1235). That does not mean "Congress must incant magic words." Auburn Regional,568 U.S., at ----, 133 S.Ct., at 824. But traditional tools of statutory construction must plainly show that Congress imbued a procedural bar with jurisdictional consequences. And in applying that clear statement rule, we have made plain that most time bars are nonjurisdictional. See, e.g.,id.,at ----, 133 S.Ct., at 825(noting the rarity of jurisdictional time limits). Time and again, we have described filing deadlines as "quintessential claim-processing rules," which "seek to promote the orderly progress of litigation," but do not deprive a court of authority to hear a case. Henderson v. Shinseki,562 U.S. 428, 435, 131 S.Ct. 1197, 179 L.Ed.2d 159 (2011); see Auburn Regional,568 U.S., at ----, 133 S.Ct., at 825; Scarborough v. Principi,541 U.S. 401, 413, 124 S.Ct. 1856, 158 L.Ed.2d 674 (2004). That is so, contrary to the dissent's suggestion, see post, at 1640, 1643 - 1644, even when the time limit is important (most are) and even when it is framed in mandatory terms (again, most are); indeed, that is so "however emphatic[ally]" expressed those terms may be, Henderson,562 U.S., at 439, 131 S.Ct. 1197(quoting Union Pacific R. Co. v. Locomotive Engineers,558 U.S. 67, 81, 130 S.Ct. 584, 175 L.Ed.2d 428 (2009)). Congress must do something special, beyond setting an exception-free deadline, to tag a statute of limitations as jurisdictional and so prohibit a court from tolling it. In enacting the FTCA, Congress did nothing of that kind. It provided no clear statement indicating that § 2401(b)is the rare statute of limitations that can deprive a court of jurisdiction. Neither the text nor the context nor the legislative history indicates (much less does so plainly) that Congress meant to enact something other than a standard time bar. Most important, § 2401(b)'s text speaks only to a claim's timeliness, not to a court's power. It states that "[a] tort claim against the United States shall be forever barred unless it is presented [to the agency] within two years... or unless action is begun within six months" of the agency's denial of the claim. That is mundane statute-of-limitations language, saying only what every time bar, by definition, must: that after a certain time a claim is barred. See infra,at 1634, n. 7 (citing many similarly worded limitations statutes). The language is mandatory-"shall" be barred-but (as just noted) that is true of most such statutes, and we have consistently found it of no consequence. See, e.g.,Gonzalez,565 U.S., at ---- - ----, 132 S.Ct., at 650-652. Too, the language might be viewed as emphatic-"forever" barred-but (again) we have often held that not to matter. See, e.g., Henderson,562 U.S., at 439, 131 S.Ct. 1197; Union Pacific,558 U.S., at 81, 130 S.Ct. 584. What matters instead is that § 2401(b)"does not speak in jurisdictional terms or refer in any way to the jurisdiction of the district courts." Arbaugh,546 U.S., at 515, 126 S.Ct. 1235(quoting Zipes v. Trans World Airlines, Inc.,455 U.S. 385, 394, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982)). It does not define a federal court's jurisdiction over tort claims generally, address its authority to hear untimely suits, or in any way cabin its usual equitable powers. Section 2401(b), in short, "reads like an ordinary, run-of-the-mill statute of limitations," spelling out a litigant's filing obligations without restricting a court's authority. Holland v. Florida,560 U.S. 631, 647, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010). Statutory context confirms that reading. This Court has often explained that Congress's separation of a filing deadline from a jurisdictional grant indicates that the time bar is not jurisdictional. See Henderson,562 U.S., at 439-440, 131 S.Ct. 1197; Reed Elsevier, Inc. v. Muchnick,559 U.S. 154, 164-165, 130 S.Ct. 1237, 176 L.Ed.2d 18 (2010); Arbaugh,546 U.S., at 515, 126 S.Ct. 1235; Zipes,455 U.S., at 393-394, 102 S.Ct. 1127. So too here. Whereas § 2401(b)houses the FTCA's time limitations, a different section of Title 28 confers power on federal district courts to hear FTCA claims. See § 1346(b)(1)("district courts... shall have exclusive jurisdiction" over tort claims against the United States). Nothing conditions the jurisdictional grant on the limitations periods, or otherwise links those separate provisions. Treating § 2401(b)'s time bars as jurisdictional would thus disregard the structural divide built into the statute. Finally, even assuming legislative history alone could provide a clear statement (which we doubt), none does so here. The report accompanying the FTCA did not discuss whether § 2401(b)'s time limits are jurisdictional. See S.Rep. No. 1400, 79th Cong., 2d Sess., 33 (1946). And in amending § 2401(b)four times after its enactment, Congress declined again (four times over) to say anything specific about whether the statute of limitations imposes a jurisdictional bar. Congress thus failed to provide anything like the clear statement this Court has demanded before deeming a statute of limitations to curtail a court's power. And so we wind up back where we started, with Irwin's "general rule" that equitable tolling is available in suits against the Government. 498 U.S., at 95, 111 S.Ct. 453. The justification the Government offers for departing from that principle fails: Section 2401(b)is not a jurisdictional requirement. The time limits in the FTCA are just time limits, nothing more. Even though they govern litigation against the Government, a court can toll them on equitable grounds. III The Government balks at that straightforward analysis, claiming that it overlooks two reasons for thinking § 2401(b)jurisdictional. But neither of those reasons is persuasive. Indeed, our precedents in this area foreclose them both. A The Government principally contends that § 2401(b)is jurisdictional because it includes the same language as the statute of limitations governing contract (and some other non-tort) suits brought against the United States under the Tucker Act. See § 2501.That statute long provided that such suits "shall be forever barred" if not filed within six years. Act of Mar. 3, 1863, § 10, 12 Stat. 767; see Act of Mar. 3, 1911, § 156, 36 Stat. 1139.And this Court repeatedly held that 6-year limit to be jurisdictional and thus not subject to equitable tolling. See Kendall v. United States,107 U.S. 123, 125-126, 2 S.Ct. 277, 27 L.Ed. 437 (1883); Finn v. United States,123 U.S. 227, 232, 8 S.Ct. 82, 31 L.Ed. 128 (1887); Soriano v. United States,352 U.S. 270, 273-274, 77 S.Ct. 269, 1 L.Ed.2d 306 (1957). When Congress drafted the FTCA's time bar, it used the same "shall be forever barred" language (though selecting a shorter limitations period). "In these circumstances," the Government maintains, "the only reasonable conclusion is that Congress intended the FTCA's identically worded time limit to be a jurisdictional bar." Brief for United States in Wong 21-22. According to the Government, Congress wanted the FTCA to serve as "a tort-law analogue to the Tucker Act" and incorporated the words "shall be forever barred" to similarly preclude equitable tolling. Reply Brief in Wong 4. (The dissent relies heavily on the same argument. See post,at 1640 - 1642.) But the Government takes too much from Congress's use in § 2401(b)of an utterly unremarkable phrase. The "shall be forever barred" formulation was a commonplace in federal limitations statutes for many decades surrounding Congress's enactment of the FTCA.And neither this Court nor any other has accorded those words talismanic power to render time bars jurisdictional. To the contrary, we have construed the very same "shall be forever barred" language in 15 U.S.C. § 15b, the Clayton Act's statute of limitations, to be subject to tolling; nothing in that provision, we found, "restrict[s] the power of the federal courts" to extend a limitations period when circumstances warrant. American Pipe & Constr. Co. v. Utah,414 U.S. 538, 559, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974); see Hardin v. City Title & Escrow Co.,797 F.2d 1037, 1040 (C.A.D.C.1986)(calling § 15(b) "a good example of a non-jurisdictional time limitation" based on its text and separation from the Clayton Act's jurisdictional provisions).As the Government itself has previously acknowledged, referring to the "shall be forever barred" locution: "[T]hat type of language has more to do with the legal rhetoric at the time the statute was passed" than with anything else, and should not "make [ ] a difference" to the jurisdictional analysis. Tr. of Oral Arg. in Irwin,O.T. 1990, No. 89-5867, p. 30. Or, put just a bit differently: Congress's inclusion of a phrase endemic to limitations statutes of that era, at least some of which allow tolling, cannot provide the requisite clear statement that a time bar curtails a court's authority. Indeed, in two decisions directly addressing the Tucker Act's statute of limitations, this Court dismissed the idea that the language the Government relies on here has jurisdictional significance. Twice we described the words in that provision as not meaningfully different from those in a nonjurisdictional statute of limitations. And twice we made clear that the jurisdictional status of the Tucker Act's time bar has precious little to do with its phrasing. We first did so in Irwin. Using our newly minted presumption, see supra,at 1631, we decided there that the limitations period governing Title VII suits against the Government, 42 U.S.C. § 2000e-16(c) (1988 ed.), allowed equitable tolling. In reaching that conclusion, we compared § 2000e-16(c)'s text (then stating that an employee "may file a civil action" within 30 days of an agency's denial of her claim) with the language of the Tucker Act's time bar. We noted that we had formerly held the Tucker Act's limitations statute to "jurisdictionally bar[ ]" late claims, and we acknowledged the possibility of justifying that different treatment by characterizing its "language [as] more stringent than" § 2000e-16(c)'s. Irwin,498 U.S., at 94-95, 111 S.Ct. 453. But we rejected that reasoning, instead finding that the two formulations were materially alike. "[W]e are not persuaded," we stated, "that the difference between them is enough to manifest a different congressional intent with respect to the availability of equitable tolling." Id.,at 95, 111 S.Ct. 453. Leaving for another day the question of what did account for the jurisdictional status of the Tucker Act's time bar, the Court thus ruled out reliance on its language. In other words, on the core question the Government raises here-whether the phrase "shall be forever barred," as used in both the Tucker Act and the FTCA, manifests a congressional decision to preclude tolling-Irwinsaid no. More recently, John R. Sandreaffirmed that conclusion, even as it refused to overturn our century-old view that the Tucker Act's time bar is jurisdictional. No less than three times, John R. Sandapprovingly repeated Irwin's statement that the textual differences between the Tucker Act's time bar and § 2000e-16(c)were insignificant-i.e.,that the language of the two provisions could not explain why the former was jurisdictional and the latter not. See 552 U.S., at 137, 139, 128 S.Ct. 750(calling the provisions "linguistically similar," "similar... in language," and "similarly worded"). But if that were so, John R. Sandasked, why not hold that the Tucker Act's time limit, like § 2000e-16(c), is nonjurisdictional? The answer came down to two words: stare decisis. The Tucker Act's bar was different because it had been the subject of "a definitive earlier interpretation." Id.,at 138, 128 S.Ct. 750; see id.,at 137, 128 S.Ct. 750; supra,at 1634. And for that reason alone, John R. Sandleft in place our prior construction of the Tucker Act's time limit. See 552 U.S., at 139, 128 S.Ct. 750(observing, in Justice Brandeis's words, that "it is more important that" the rule "be settled than that it be settled right" (quoting Burnet v. Coronado Oil & Gas Co.,285 U.S. 393, 406, 52 S.Ct. 443, 76 L.Ed. 815 (1932)(dissenting opinion))). What is special about the Tucker Act's deadline, John R. Sandrecognized, comes merely from this Court's prior rulings, not from Congress's choice of wording. The Government thus cannot show that the phrase "shall be forever barred" in § 2401(b)plainly signifies a jurisdictional statute, as our decisions require. See supra,at 1632. Unlike in John R. Sand,here stare decisisplays no role: We have not previously considered whether § 2401(b)restricts a court's authority. What we have done is to say, again and again, that the core language in that provision has no jurisdictional significance. It is materially indistinguishable from the language in one nonjurisdictional time bar (i.e.,§ 2000e-16(c)). See Irwin,498 U.S., at 95, 111 S.Ct. 453; John R. Sand,552 U.S., at 137, 139, 128 S.Ct. 750. And it is identical to the language in another (i.e., 15 U.S.C. § 15b). See American Pipe,414 U.S., at 559, 94 S.Ct. 756. Yes, we have held that the Tucker Act's time bar, which includes those same words, constrains a court's power to hear late claims. But as we explained in Irwin,that is not because the phrase itself "manifest[s] a... congressional intent with respect to the availability of equitable tolling." 498 U.S., at 95, 111 S.Ct. 453. The words on which the Government pins its hopes are just the words of a limitations statute of a particular era. And nothing else supports the Government's claim that Congress, when enacting the FTCA, wanted to incorporate this Court's view of the Tucker Act's time bar-much less that Congress expressed that purported intent with the needed clear statement. B The Government next contends that at the time of the FTCA's enactment, Congress thought that everylimitations statute applying to suits against the United States, however framed or worded, cut off a court's jurisdiction over untimely claims. On that view, the particular language of those statutes makes no difference. All that matters is that such time limits function as conditions on the Government's waiver of sovereign immunity. In that era-indeed, up until Irwinwas decided-those conditions were generally supposed to be "strictly observed." Soriano,352 U.S., at 276, 77 S.Ct. 269. That meant, the Government urges, that all time limits on actions against the United States "carr[ied] jurisdictional consequences." Brief for United States in Wong 34. Accordingly, the Government concludes, Congress "would have expected courts to apply [§ 2401(b)] as a jurisdictional requirement-just as conditions on waivers of sovereign immunity had always been applied." Id.,at 32. Irwin,however, forecloses that argument. After all, Irwinalso considered a pre-Irwintime bar attached to a waiver of sovereign immunity. The Government argued there-anticipating its claim here-that because § 2000e-16(c)'s statute of limitations conditioned such a waiver, it must be jurisdictional and not subject to equitable tolling. See Brief for Respondents 6, 10, 14, 19, and Tr. of Oral Arg. 31-37, inIrwin,O.T. 1990, No. 89-5867. But Irwindisagreed, applying the opposite presumption to a time limit passed two decades earlier. See 498 U.S., at 94-96, 111 S.Ct. 453; supra,at 1631. Justice White protested, much as the Government does now, that at the time of § 2000e-16(c)'s enactment, limitations statutes for suits against the Government were "strictly observed" and not amenable to tolling. 498 U.S., at 97, 111 S.Ct. 453(opinion concurring in part and concurring in judgment) (quoting Soriano,352 U.S., at 276, 77 S.Ct. 269); see 498 U.S., at 99, n. 2, 111 S.Ct. 453. How could an earlier Congress, Justice White asked, have "had in mind the Court's present departure from that longstanding rule"? Ibid.; see post,at 1643 (asking a variant of the same question). But the IrwinCourt was undeterred. The Court noted that it had not applied the former rule so consistently as Justice White suggested. See 498 U.S., at 94, 111 S.Ct. 453. And the Court doubted that the former approach so well reflected congressional intent: On the contrary, because equitable tolling "amounts to little, if any, broadening of the congressional waiver," we thought that a rule generally allowing tolling is the more "realistic assessment of legislative intent." Id.,at 95, 111 S.Ct. 453; see supra,at 1631. For those reasons, the Court declined to count time bars as jurisdictional merely because they condition waivers of immunity-even if Congress enacted the deadline when the Court interpreted limitations statutes differently. In the years since, this Court has repeatedly followed Irwin's lead. We have applied Irwinto pre-Irwinstatutes, just as we have to statutes that followed in that decision's wake. See Scarborough,541 U.S., at 420-422, 124 S.Ct. 1856; Franconia Associates v. United States,536 U.S. 129, 145, 122 S.Ct. 1993, 153 L.Ed.2d 132 (2002). To be sure, Irwin's presumption is rebuttable. But the rebuttal cannot rely on what Irwinitself deemed irrelevant-that Congress passed the statute in an earlier era, when this Court often attached jurisdictional consequence to conditions on waivers of sovereign immunity. Rather, the rebuttal must identify something distinctive about the time limit at issue, whether enacted then or later-a reason for thinking Congress wanted that limitations statute (not all statutes passed in an earlier day) to curtail a court's jurisdiction. On the Government's contrary view, Irwinwould effectively become only a prospective decision. Nothing could be less consonant with Irwin's ambition to adopt a "general rule to govern the applicability of equitable tolling in suits against the Government." 498 U.S., at 95, 111 S.Ct. 453. And the Government's claim is peculiarly inapt as applied to § 2401(b)because all that is special about the FTCA cuts in favor ofallowing equitable tolling. As compared to other waivers of immunity (prominently including the Tucker Act), the FTCA treats the United States more like a commoner than like the Crown. The FTCA's jurisdictional provision states that courts may hear suits "under circumstances where the United States, if a private person, would be liable to the claimant." 28 U.S.C. § 1346(b). And when defining substantive liability for torts, the Act reiterates that the United States is accountable "in the same manner and to the same extent as a private individual." § 2674. In keeping with those provisions, this Court has often rejected the Government's calls to cabin the FTCA on the ground that it waives sovereign immunity-and indeed, the Court did so in the years immediately after the Act's passage, even as it was construing otherwaivers of immunity narrowly. See, e.g., United States v. Aetna Casualty & Surety Co.,338 U.S. 366, 383, 70 S.Ct. 207, 94 L.Ed. 171 (1949); Indian Towing Co. v. United States,350 U.S. 61, 65, 76 S.Ct. 122, 100 L.Ed. 48 (1955); Rayonier Inc. v. United States,352 U.S. 315, 319-320, 77 S.Ct. 374, 1 L.Ed.2d 354 (1957). There is no reason to do differently here. As Irwinrecognized, treating the Government like a private person means (among other things) permitting equitable tolling. See 498 U.S., at 95-96, 111 S.Ct. 453. So in stressing the Government's equivalence to a private party, the FTCA goes further than the typical statute waiving sovereign immunity to indicate that its time bar allows a court to hear late claims. IV Our precedents make this a clear-cut case. Irwinrequires an affirmative indication from Congress that it intends to preclude equitable tolling in a suit against the Government. See 498 U.S., at 95-96, 111 S.Ct. 453. Congress can provide that signal by making a statute of limitations jurisdictional. But that requires its own plain statement; otherwise, we treat a time bar as a mere claims-processing rule. See Auburn Regional,568 U.S., at ----, ----, 133 S.Ct., at 823-824, 825. Congress has supplied no such statement here. As this Court has repeatedly stated, nothing about § 2401(b)'s core language is special; "shall be forever barred" is an ordinary (albeit old-fashioned) way of setting a deadline, which does not preclude tolling when circumstances warrant. See Irwin,498 U.S., at 95-96, 111 S.Ct. 453; John R. Sand,552 U.S., at 137, 139, 128 S.Ct. 750; American Pipe,414 U.S., at 558-559, 94 S.Ct. 756. And it makes no difference that a time bar conditions a waiver of sovereign immunity, even if Congress enacted the measure when different interpretive conventions applied; that is the very point of this Court's decision to treat time bars in suits against the Government, whenever passed, the same as in litigation between private parties. See Irwin,498 U.S., at 95-96, 111 S.Ct. 453; Scarborough,541 U.S., at 420-422, 124 S.Ct. 1856;Franconia,536 U.S., at 145, 122 S.Ct. 1993. Accordingly, we hold that the FTCA's time bars are nonjurisdictional and subject to equitable tolling. We affirm the judgments of the U.S. Court of Appeals for the Ninth Circuit and remand the cases for further proceedings consistent with this opinion. On remand in June,it is for the District Court to decide whether, on the facts of her case, June is entitled to equitable tolling. It is so ordered. Justice ALITO, with whom THE CHIEF JUSTICE, Justice SCALIA, and Justice THOMAS join, dissenting. Our task in these cases is to interpret and enforce a federal statute that specifies the limits of the waiver of sovereign immunity in the Federal Tort Claims Act (FTCA). The FTCA waives the immunity of the United States for certain tort claims but provides that any "tort claim against the United States shall be forever barred unless" it is filed with the appropriate agency "within two years after such claim accrues" and in federal court "within six months after" the agency's final decision. 28 U.S.C. § 2401(b). The statutory text, its historical roots, and more than a century of precedents show that this absolute bar is not subject to equitable tolling. I would enforce the statute as Congress intended and reverse. I The FTCA is a waiver of sovereign immunity and must be understood in that context. In the 19th and early 20th centuries, Congress was reluctant 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_usc1sect
1983
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 42. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA". James E. WILLIAMS, Plaintiff-Appellant, v. Nancy ANDERSON and S.D. Parwatikar, Defendants-Appellees. No. 90-2487. United States Court of Appeals, Seventh Circuit. Argued Sept. 20, 1991. Decided April 9, 1992. Stephen C. Mudge, Reed, Armstrong, Gorman, Coffey, Thomson, Gilbert & Mudge, Edwardsville, Ill., Curtis L. Blood, argued, Collinsville, Ill., for James E. Williams. Karen Michels Caille, Asst. Atty. Gen., Alison E. O’Hara, argued, Office of the Attorney General, Civil Appeals Div., Chicago, Ill., for Nancy Anderson and S.D. Parwatikar. Before BAUER, Chief Judge, RIPPLE, Circuit Judge, and FAIRCHILD, Senior Circuit Judge. RIPPLE, Circuit Judge. While in custody at the Menard Correctional Center in Illinois, James Williams was given an injection of Haldol, an anti-psychotic drug, against his will. Mr. Williams brought suit under 42 U.S.C. § 1983 against Dr. S.D. Parwatikar, the staff psychiatrist who prescribed the drug, and Nancy Anderson, the staff nurse who administered it, for alleged violations of his rights under the Eighth and Fourteenth Amendments. The district court granted the defendants’ motion for summary judgment. For the following reasons, we affirm in part and vacate and remand in part. I BACKGROUND A. Facts James Williams was placed in the psychiatric unit at Menard Correctional Center on August 5, 1985. On August 7, Mr. Williams was examined by Dr. S.D. Parwa-tikar, a staff psychiatrist. In his post-examination order, Dr. Parwatikar prescribed an intra-muscular administration of ten milligrams (10 mg) of Haldol to Mr. Williams, “PRN if Pt gets violent.” In the affidavits submitted in connection with the defendants’ motion for summary judgment, Dr. Parwatikar asserts that he wrote this order “with due consideration of plaintiff’s mental condition and history of violent behavior,” “as a means of treating violent outbursts.” R.61, R.39. On the morning of August 12, two correctional officers came to Mr. Williams’ cell to take him to the shower. What happened next is in dispute. As noted below, in reviewing the district court’s grant of summary judgment, we view the facts in the light most favorable to the non-moving party. Accordingly, the following version is drawn, unless otherwise noted, from Mr. Williams’ description of the events in his deposition. R.61 at 6-8. We acknowledge that the defendants dispute several of Mr. Williams’ allegations. Mr. Williams was standing in his cell, dressed in pants and a shirt, when the officers arrived and told him they were to escort him to the shower. The officers asked Mr. Williams, “What are you doing dressed?” The officers told Mr. Williams that he should remove all of his clothes except his underwear. Mr. Williams responded that nobody told him he would be escorted to a shower or that he was supposed to be ready and waiting in his underwear. One officer then said to the other, “He does not want a shower.” The officers then left. As they walked away, Mr. Williams called to them to come back, saying in a defensive manner, “I didn’t tell you I didn’t want a shower. Why did you lie like that?” One officer returned and said, “Well, okay, go ahead and get ready for shower. We will come back and get you.” A few minutes later, both officers returned. One officer said to Mr. Williams, “You think you’re tough, don’t you?” Mr. Williams responded, “I don’t think I am tough.” The officer then said, “I am going to see how tough you are when I let you out.” Mr. Williams responded, “Man, well, man, I fought bigger people than you.” The officer opened the cell and Mr. Williams stepped out. Holding handcuffs in his hands, the officer shoved Mr. Williams against the wall. Mr. Williams grabbed the handcuffs and pulled them away from the officer. The officer pushed Mr. Williams back into his cell and shut the door. Mr. Williams asked the officer to bring his supervisor and said, “I am not giving you these cuffs until he comes.” The officers left and returned with a corrections sergeant, who simply said, “Give me the handcuffs.” Mr. Williams gave the handcuffs to the sergeant, who then walked away with the two officers. All parties agree that the two officers reported to Nurse Anderson that Mr. Williams had become violent. According to Nurse Anderson, the officers told her that Mr. Williams had attacked one of them. Nurse Anderson returned with the officers to Mr. Williams’ cell and told Mr. Williams, “I am going to give you a shot.” Mr. Williams resisted and told Nurse Anderson, “I can’t take those shots ... I am allergic to Thorazine.” Mr. Williams said this not knowing what type of drug Nurse Anderson intended to give him, but remembering that he had had a severe allergic reaction to forced injections of Thorazine when he was previously in custody. One of the officers told Mr. Williams that if he did not stick his arm out of the cell, “we are coining in there.” While Mr. Williams was leaning against the bars, one of the officers reached through the bars, grabbed Mr. Williams’ hand, and pulled his arm through the bars. Mr. Williams struggled momentarily to free his arm, but when he saw Nurse Anderson ready with the shot, he submitted. In her notes on .the event, Nurse Anderson wrote that she administered the drug “with force.” R.23 Ex. A. Mr. Williams had an allergic reaction to the injection, including tachycardia and loss of control of his neck muscles. B. District Court Proceedings On September 20, 1988, Mr. Williams filed suit against Nurse Anderson and Dr. Parwatikar, under 42 U.S.C. § 1983, for alleged violations of his rights under the Eighth and Fourteenth Amendments. The parties consented to trial by a Magistrate Judge. After discovery, both sides moved for summary judgment. On June 16, 1989, and March 30, 1990, the court held hearings on the cross-motions for summary judgment. On May 31, 1990, the court granted the defendants’ motion for summary judgment. R.68, R.69. On June 29, 1990, Mr. Williams filed a timely notice of appeal. II ANALYSIS In the “Request For Relief” section of his pro se complaint, Mr. Williams asked the district court to [djeclare that the acts and omissions of the defendants violate plaintiffs’ [sic] rights, privileges and immunities secured by the United States Constitution Eighth and Fourteenth Amendments; Award compensatory damages to the plaintiff in the amount of $100,000.00 and punitive damages in the amount of $25,000.00; Order defendants to pay the costs of this suit and reasonable attorney’s fees to plaintiff; Grant such other relief as this court deems just and proper. R.l at 6. With respect to Mr. Williams’ claim for damages, Nurse Anderson and Dr. Parwatikar raised the affirmative defense of qualified immunity under Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). They contend that their actions did not violate any constitutional right that was “clearly established” at the time of the incident. Although the district court ruled in favor of the defendants for different reasons, we find that this “threshold immunity question” is dis-positive of the damages claim and limit our review of this claim to this question. Siegert v. Gilley, — U.S. -, 111 S.Ct. 1789, 1793, 114 L.Ed.2d 277 (1991). We then address the rest of Mr. Williams’ requested relief. A. Applicable Standards We review de novo a district court’s grant of summary judgment. Doe v. Allied-Signal, Inc., 925 F.2d 1007, 1008 (7th Cir.1991). Our task is to determine whether the record reveals 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); see Adickes v. S.H. Kress & Co., 398 U.S. 144, 159, 90 S.Ct. 1598, 1609, 26 L.Ed.2d 142 (1970). “A motion for summary judgment is not an appropriate occasion for weighing the evidence; rather, the inquiry is limited to determining if there is a genuine issue for trial.” Lohom v. Michal, 913 F.2d 327, 331 (7th Cir.1990); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). We “ ‘must view the record and all inference drawn from it in the light most favorable to the party opposing the motion.’ ” Lohorn, 913 F.2d at 331 (quoting Holland v. Jefferson Nat’l Life Ins. Co., 883 F.2d 1307, 1312 (7th Cir.1989)). The doctrine of qualified immunity shields government officials performing discretionary functions from liability for damages when their conduct does not violate “clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). Knowledge of a general right is not sufficient to invoke liability; “[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987). This test “focuses on the state of the law at the time of the alleged violation.” Zook v. Brown, 748 F.2d 1161, 1164 (7th Cir.1984). B. Request for Damages The incident that gave rise to this lawsuit occurred in August 1985. Thus, in assessing the qualified immunity claims, our concern is whether statutes or caselaw existed in August 1985 to establish clearly that a state prisoner held in a psychiatric unit had a right under the Eighth or Fourteenth Amendment against forced administration of an antipsychotic drug without procedural review of the prescription or personal observation by a medical professional of the immediate need for the drug. We begin with the relevant Supreme Court caselaw in 1985. In Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), the Supreme Court set forth the standard for analyzing prison medical treatment under the Eighth Amendment’s proscription of cruel and unusual punishment. The Court held that “deliberate indifference to a prisoner’s serious illness or injury,” as well as “the unnecessary and wanton infliction of pain” violates the Eighth Amendment. Id. at 104-05, 97 S.Ct. at 291. The Court also made clear that medical malpractice, such as a physician’s failure to order a diagnostic test, does not offend the Eighth Amendment. “[A] complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment.” Id. at 106, 97 S.Ct. at 292. With respect to a prisoner’s rights to due process, in Vitek v. Jones, 445 U.S. 480, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980), the Court addressed the issue of whether a prisoner had a right to refuse transfer to a state mental hospital and to have procedural protections of that right. The Court concluded that a prisoner does indeed have such rights under the Due Process Clause. A criminal conviction and sentence of imprisonment extinguish an individual’s right to freedom from confinement for the term of his sentence, but they do not authorize the State to classify him as mentally ill and to subject him to involuntary psychiatric treatment without affording him additional due process protections. Id. at 493-94, 100 S.Ct. at 1264. The Court further held that the required due process protections include notice, a hearing, the opportunity to present and cross-examine witnesses, and to have an independent deci-sionmaker. Id. at 494-96, 100 S.Ct. at 1264-65. But in Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982), the Court held that, although a developmentally disabled person who is committed involuntarily to a state hospital retains constitutionally protected liberty interests, the procedural protections of those interests are satisfied by the professional judgment of a mental health professional. Specifically, the Court held that a mental health professional’s decision to place such a person under restraint is “presumptively valid; liability may be imposed only when the decision by the professional is such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment.” Id. at 323, 102 S.Ct. at 2462. Neither Vitek nor Youngberg addressed the precise issue of whether an inmate has a right to refuse antipsychotic drugs. By analogy, Vitek seemed to call for extensive procedural preconditions, but Youngberg appeared to grant presumptive validity to professional judgment. The decisions of the United States Courts of Appeals also failed to establish clearly that the forcible administration of antipsy-chotic drugs to a mentally ill prisoner violated either the Eighth or Fourteenth Amendment. In Bee v. Greaves, 744 F.2d 1387 (10th Cir.1984), cert. denied, 469 U.S. 1214, 105 S.Ct. 1187, 84 L.Ed.2d 334 (1985), the Tenth Circuit held that a pretrial detainee has a constitutionally-derived liberty interest in avoiding unwanted medication with antipsychotic drugs, but that this interest must be balanced against state interests in maintaining security and “prevent[ing] a violent and dangerous mentally ill prisoner from injuring himself and others.” Id. at 1394. The Tenth Circuit further held that, while forcible medication with antipsychotic drugs may be required in an emergency, the decision that an emergency exists “must be the product of professional judgment by appropriate medical authorities, applying acceptable medical standards.” Id. at 1395-96. Similarly, in Rennie v. Klein, 720 F.2d 266, 269 (3d Cir.1983) (en banc) a three-judge plurality of the Third Circuit wrote that “antipsy-chotic drugs may be constitutionally administered to an involuntarily committed mentally ill patient whenever, in the exercise of professional judgment, such an action is deemed necessary to protect the patient from endangering himself or others.” See also id. at 274 (Seitz, C.J., concurring). And in Lojuk v. Quandt, 706 F.2d 1456 (7th Cir.1983), this court addressed the due process requirements of administering elec-tro-convulsive therapy to patients who were voluntarily committed to a Veterans Administration psychiatric facility but had become incompetent to make treatment decisions. While this court declined to define precisely the scope of the liberty interest or the minimum procedures required by the Fifth Amendment’s Due Process Clause, the court did hold that, “under even the most lenient reading of the Due Process Clause,” the decision to administer electro-convulsive therapy must comport with accepted professional practice. Id. at 1467-68. While these decisions of the United States Courts of Appeals share a least common denominator — that the decision to medicate an inmate or psychiatric patient against his will must meet professional standards of judgment — the decisions of the United States District Courts did not even, unanimously agree upon this procedural minimum. In Stensvad v. Reivitz, 601 F.Supp. 128 (W.D.Wis.1985), a district court upheld a Wisconsin statute under which involuntarily committed mental patients had no right to refuse medication and treatment. The plaintiff, who had been committed to a Wisconsin state mental health facility after a jury verdict of not guilty of first degree murder by reason of mental disease or defect, challenged the state law under the Due Process Clause of the Fourteenth Amendment. The district court ruled that, because the statute required the drug to be prescribed by a physician, and because that decision was appeal-able via a grievance procedure which protected an inmate’s right to treatment that “is appropriate for his or her condition,” the statutory scheme taken as a whole was constitutional under the Supreme Court’s Youngberg guidance. Stensvad, 601 F.Supp. at 131. In Gilliam v. Martin, 589 F.Supp. 680 (W.D. Okla.1984), a district court upheld the forced administration of antipsychotic medication to an inmate who had a history of violent, abusive, and destructive behavior whenever he was not under the effects of the medication. The court ruled that any due process rights the inmate had to be free from forcible administration of the drug were adequately protected by the use of trial periods of withdrawal of the medication, which had resulted in repeated regression to a dangerous psychotic condition, and by the use of various tests and examinations over a period of more than nine years. Id. at 682. In Davis v. Hubbard, 506 F.Supp. 915 (N.D.Ohio 1980), a district court struck down a state mental hospital’s practice of freely administering antipsychotic drugs to patients against their will. At the hospital, antipsychotic drugs were prescribed by both licensed and unlicensed physicians for patients they had never seen. The prescriptions were at times to be given PRN, and attendants — without review by the prescribing physician — were allowed to request that a patient be medicated pursuant to such a prescription. Id. at 926-27. The court ruled that, in non-emergency situations, the hospital must provide the patient “some kind of hearing before compelling the patient to take psychotropic drugs.” Id. at 938-39. This hearing must be held before an impartial decisionmaker and the patient must be allowed to present his views. Id. The court ruled, however, that when the hospital has reasonable cause to believe that a patient is “presently violent or self-destructive, and in such condition presents a present danger to himself, other patients or the institution’s staff,” the hospital could forcibly administer antipsychotic drugs. Id. at 935 (emphasis in original). In Sconiers v. Jarvis, 458 F.Supp. 37 (D.Kan.1978), a district court upheld against a First Amendment challenge to the forced administration of antipsychotic drugs to an inmate who had an extensive history of hostile and destructive behavior and had been diagnosed with paranoid schizophrenia. Noting that prison officials have the responsibility to provide proper care for ill inmates as well as the responsibility to protect neighboring inmates, the court concluded that “the forced administration by prison physicians of tranquilizing drugs to an inmate with a medical history such as plaintiff’s is not a violation of federal rights.” Id. at 40. In Nelson v. Heyne, 355 F.Supp. 451 (N.D.Ind.1972), aff'd, 491 F.2d 352 (7th Cir.), cert. denied, 417 U.S. 976, 94 S.Ct. 3183, 41 L.Ed.2d 1146 (1974), a district court struck down a standing order by a physician at a reform school which allowed the custodial staff of the school to ask the staff nurse to administer forcibly antipsy-chotic drugs to residents who became overexcited. The standing order covered all the residents; the physician had not examined or diagnosed any individual resident nor prescribed the drug for a limited number of individuals. The court ruled that because this practice was not part of an on-going psychotherapeutic program, it violated the residents’ Eighth and Fourteenth Amendment rights. Id. at 455. In Peek v. Ciccone, 288 F.Supp. 329 (W.D.Mo.1968), a district court upheld the one-time forced administration of an anti-psychotic drug to an inmate who had a medical history of chronic schizophrenia. The medication was prescribed by a physician for regular administration, and the inmate had regularly taken the drug voluntarily. The physician testified that the drug treatment had improved the inmate’s condition. The court concluded that a onetime forced administration of the drug was not punishment or harm and did not violate the inmate’s constitutional rights. These district court opinions fail to delineate clearly the right of an inmate or psychiatric patient to refuse antipsychotic drugs, beyond the right to have a physician’s examination and to have the medication prescribed as treatment rather than given as punishment. In sum, at the time the defendants acted, it was not clearly established that their actions violated the Due Process Clause of the Fourteenth Amendment. Nor was it established that their actions amounted to the sort of “deliberate indifference” or “unnecessary and wanton infliction of pain” independently proscribed by the Eighth Amendment. Thus, we hold that Nurse Anderson and Dr. Parwatikar are shielded from Mr. Williams’ claim for damages by the doctrine of qualified immunity; neither Nurse Anderson nor Dr. Parwatikar violated any constitutional right that was clearly established at the time of the incident. Recently, the Supreme Court clarified the rights of inmates to refuse antipsy-chotic drugs. In Washington v. Harper, 494 U.S. 210, 110 S.Ct. 1028, 108 L.Ed.2d 178 (1990), the Court made clear that an inmate “possesses a significant liberty interest in avoiding the unwanted administration of antipsychotic drugs under the Due Process Clause of the Fourteenth Amendment,” id. at 221-22, 110 S.Ct. at 1036, and that certain “procedural protections are necessary to ensure that the decision to medicate an inmate against his will is neither arbitrary nor erroneous.” Id. at 228, 110 S.Ct. at 1040. In deciding whether the defendants are entitled to qualified immunity, we need not determine whether the procedures which Nurse Anderson and Dr. Parwatikar undertook prior to administering Haldol to Mr. Williams would violate rights that are clearly established after Washington. C. Request for Injunctive Relief Reading the plaintiff’s complaint charitably, as we must under the circumstances, we proceed on the assumption that Mr. Williams also requested injunctive relief. At oral argument, the parties notified the court that circumstances have changed significantly since the termination of the proceedings in the district court. Apparently, Mr. Williams is no longer in the psychiatric center at Menard, and Dr. Parwatikar’s prescription is no longer in force. It is not clear, however, that these changes are sufficient to moot the request for injunctive relief. In Washington, the Supreme Court held that an inmate’s claim with respect to the administration of anti-psychotic drugs did not become moot when he remained in the prison system and had a medical history that produced a strong likelihood of his return to the prison psychiatric center for further treatment. 494 U.S. at 218-19, 110 S.Ct. at 1035. The record in this case is not as well-developed as that before the Justices in Washington, and we cannot determine definitively whether the administration of antipsychotic drugs to this inmate by these defendants is capable of repetition yet evading review. See Honig v. Doe, 484 U.S. 305, 317-23, 108 S.Ct. 592, 601-04, 98 L.Ed.2d 686 (1988); Murphy v. Hunt, 455 U.S. 478, 482, 102 S.Ct. 1181, 1183, 71 L.Ed.2d 353 (1982) (per curiam). As the Supreme Court pointed out in Washington, this assessment is fact-intensive. 494 U.S. at 218-19, 110 S.Ct. at 1035. Therefore, it is best left to the district court. Conclusion For the foregoing reasons, the district court’s judgment is affirmed in part and vacated and remanded in part. The parties shall bear their own costs in this court. Affirmed in part, Vacated and Remanded in part. . "Antipsychotic drugs, sometimes called 'neuro-leptics’ or ‘psychotropic drugs,’ are medications commonly used in treating mental disorders such as schizophrenia.” Washington v. Harper, 494 U.S. 210, 214, 110 S.Ct. 1028, 1032, 108 L.Ed.2d 178 (1990). . R.23 Ex.A. “PRN" is an abbreviation for pro re nata, a Latin phrase which means "as needed.” . Nurse Anderson and Dr. Parwatikar raise an alternative defense of Eleventh Amendment immunity. Because Mr. Williams sued Nurse Anderson and Dr. Parwatikar personally and is seeking damages from them personally, Mr. Williams' suit is against Nurse Anderson and Dr. Parwatikar in their individual capacities rather than in their official capacities and Eleventh Amendment immunity is therefore unavailable. Kentucky v. Graham, 473 U.S. 159, 165-67, 105 S.Ct. 3099, 3105-06, 87 L.Ed.2d 114 (1985); Walker v. Rowe, 791 F.2d 507, 508 (7th Cir.), cert. denied, 479 U.S. 994, 107 S.Ct. 597, 93 L.Ed.2d 597 (1986). . Federal courts have a duty to interpret charitably pleadings filed by pro se litigants, Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595, 30 L.Ed.2d 652 (1972); Caldwell v. Miller, 790 F.2d 589, 595 (7th Cir.1986), especially when dealing with "the workproduct of an individual with a history of mental health problems, Spencer v. Lee, 864 F.2d 1376, 1385 (7th Cir.1989) (en banc) (Ripple, J., and Flaum, J., concurring in part and dissenting in part), cert. denied, 494 U.S. 1016, 110 S.Ct. 1317, 108 L.Ed.2d 493 (1990). 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 42? Answer with a number. Answer:
songer_amicus
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. Your task is to determine or not there was any amicus participation before the court of appeals. JONES v. COMMONWEALTH OF KENTUCKY. No. 7978. Circuit Court of Appeals, Sixth Circuit. June 8, 1938. Perry B. Miller, of Louisville, Ky. (Perry B. Miller, of Louisville, Ky., and Arthur Rhorer, of Middlesboro, Ky., .on the brief), for appellant. A. E. Funk, of Frankfort, Ky. (Hubert Meredith, of Greenville, Ky., and A. E. Fu'nk, of Frankfort, Ky., on the brief), for appellee. Before HICKS, SIMONS, and ALLEN, Circuit Judges. SIMONS, Circuit Judge. The appellant was convicted of murder and sentenced to death by a Kentucky court. Having exhausted local remedies by way of petition for new trial, appeal, petitions for writ of habeas corpus and for writ of coram nobis, he challenged the manner of conviction as impairment of his right to due process under the Constitution of the United States (Amendment 14) by petition for writ of habeas corpus in the United States District Court. The Attorney General of Kentucky, after “giving the matter more than ordinary consideration,” is “strongly inclined to the view that Tom Jones was convicted on perjured testimony.” The Court of Appeals of Kentucky, suppressing “sympathy for him, because of his unfortunate predicament,” relegated him to his last and final remedy of an appeal for clemency, although we are told, without contradiction, that it is public information that the Governor of the Commonwealth conceives himself bound by a pledge not to exercise the pardoning power. The United States District Judge, now a judge of this court, seemingly convinced that appellant’s constitutional rights were impaired and that his conviction was procured by perjured testimony, questioned the power and propriety of a single district judge to reverse the decision of the highest court of the state, and with commendable restraint, contented himself with the issuance of a certificate of probable cause to permit decision by a court clothed with greater authority. And so, unless there is power here to relieve the appellant from a result the injustice of which is so strongly suggested, and impairment of constitutional rights is so clear as to call for its exercise, the man must die. The appellant was indicted November 4th on the charge of murder for the killing of his wife with a pistol on October 30th. On Friday, November 8th, he was arraigned, pleaded not guilty, counsel was appointed for him, and trial was set for Tuesday, November 12th. Though the case was not reached until Thursday, November 14th, counsel was obliged to remain in court subject to call.' Excluding Sunday, November 10th, three days were thus left for the preparation of the defense. Motion for a ten-day continuance, supported by affidavits, was denied. No one had seen the shooting. The principal witnesses for the commonwealth were a six year old girl, who testified as to a threat of killing by the appellant, and a woman of ill repute, who testified to the slain woman’s dying declaration. The defense was that the pistol was discharged in a scuffle for its possession when the wife threatened her own life. Newly discovered evidence offered to the state courts, in support of the several petitions thereto addressed, casts grave doubt upon the competency and freedom from duress of one and upon the veracity of both of the prosecution’s principal witnesses. The court below, and the Attorney General of Kentucky, who cross-examined the witnesses on the first habeas corpus petition, were obviously impressed by the new evidence. The statement of the latter to the Court of Appeals of Kentucky is printed at length in the margin. Thrice in this court does he repeat his doubt of the justice of the judgment. The Kentucky court did not directly pass upon the newly discovered evidence, basing its denial of the writs of habeas corpus and coram nobis on jurisdictional grounds. Jones v. Commonwealth, 267 Ky. 465, 102 S.W.2d 345; Id., 269 Ky. 772, 108 S.W.2d 812; Id., 269 Ky. 779, 108 S.W.2d 816. It is clear from the record below that none of the new evidence was known to the appellant or his counsel at the time of the trial, and it is likewise clear that much of it would have been discovered had a reasonable continuance been granted for the purpose of preparing a defense and had the trial been held in the division of the judicial district where the crime was alleged to have been committed and where the appellant lived. The writ of habeas corpus in the present case was presented to the court below in pursuance of section 453, T. 28, U.S.C., 28 U.S.C.A. § 453, and the appeal from its denial is entertained under section 466 of the same title, 28 U.S.C.A. § 466. We are not insensible to the extraordinary nature of the writ and the caution that must be exercised in granting it where, as here, the petitioner has been denied relief by the courts of the state. Frank v. Mangum, 237 U.S. 309, 326, 35 S.Ct. 582, 59 L.Ed. 969; Ashe v. United States, 270 U.S. 424, 425, 46 S.Ct. 333, 334, 70 L.Ed. 662; Bard v. Chilton, 6 Cir, 20 F.2d 906. It is not a substitute for appeal, Knewel v. Eagan, 268 U.S. 442, 45 S.Ct. 522, 69 L.Ed. 1036, and errors of law upon the trial are not through it subject to review. Frank v. Mangum, supra. But the complaint here is not the commission of mere error, “but of a wrong so fundamental that it [must make] the whole proceeding a mere pretense of a trial and [render] the conviction and sentence wholly void.” Brown v. Mississippi, 297 U.S. 278, 286, 56 S.Ct. 461, 465, 80 L.Ed. 682; Moore v. Dempsey, 261 U.S. 86, 91, 43 S.Ct. 265, 67 L.Ed. 543. It is true that the trial court recognized its duty to assign counsel as a necessary requisite of due process of law. But “that duty is not discharged by an assignment at such a time or under such circumstances as to preclude the giving of effective aid in the preparation and trial of the case.” Powell v. Alabama, 287 U.S. 45, 71, 53 S.Ct. 55, 65, 77 L.Ed. 158, 84 A.L.R. 527 (the first Scotts-boro case). It is likewise true that three days were available to counsel within which to make an investigation and to prepare for defense. But when we take into consideration that this was a capital case, that the defendant was in jail and unable to himself give assistance, that the trial was to be held at a distance from the place where the crime was committed, and that counsel brought to the attention of the court by motion and supporting affidavits his inability to properly prepare for trial within the time, we think it must be concluded that the constitutional right of the defendant to be heard by counsel as a necessary requisite of due process of law had not been preserved to him. It is, of course, perfectly true, as noted in Powell v. Alabama, supra, that great and inexcusable delay in the enforcement of the criminal law has been a serious evil of the times and has brought the administration of the criminal laws into disrepute. But we progress little if freeing the administration of justice from one evil we permit it to become enmeshed in a second, and in our effort to achieve promptness go forward with such haste as to close the door upon the “calm spirit of regulated justice.” Nor are constitutional safe-guards maintained or respect for the judicial process promoted by convictions secured on perjured testimony. If the new evidence offered in the present case is to be given any credence, and credible it appeared to the chief law officer of Kentucky, who had opportunity to cross-examine the witnesses, and to the United States District -Judge, there' is reason to believe that the conviction here assailed was so secured. This is not in criticism of the Attorney General, for its infirmity was not disclosed to him until after the conviction, though it might well have been discovered had reasonable opportunty for investigation been accorded the defendant and his counsel. The concept of due process as it has become crystallized in the public mind and by judicial pronouncement, is formulated in Mooney v. Holohan, 294 U.S. 103, 112, 55 S.Ct. 340, 341, 342, 79 L.Ed. 791, 98 A.L.R. 406. Its requirement in safe-guarding the liberty of the citizen against deprivation through the action of the state embodies those “fundamental conceptions of justice which lie at the base of our civil and political institutions,” referred to in Hebert v. Louisiana, 272 U.S. 312, 316, 317, 47 S.Ct. 103, 71 L.Ed. 270, 48 A.L.R. 1102. This requirement cannot be satisfied “By mere notice and hearing^ if a state has contrived a conviction through the pretense of a trial which in truth is but used as a means of depriving a defendant of liberty through a deliberate deception of court and jury by the presentation of testimony known to be perjured. Such a contrivance by a state to procure the conviction and imprisonment of a defendant is as inconsistent with the rudimentary demands of justice as is the obtaining of a like result by intimidation.” If it be urged that the concept thus formulated but condemns convictions obtained by the state through testimony known by the prosecuting officers to have been perjured, then the answer must be that the delineated requirement of due process in the Mooney 'Case embraces no more than the facts of that case require, and that “the fundamental conceptions of justice which lie at the base of our civil and political institutions” must with equal abhorrence condemn as a travesty a conviction upon perjured testimony if .later, but fortunately not too late, its falseness is discovered, and that the state in the one case as in the other is required to afford a corrective judicial process to remedy the alleged wrong, if constitutional rights are not to be impaired. „ The judicial processes of the state have here been vainly invoked. The court below stayed its hand until they had been given full opportunity to function. Even then it was thought wiser to have the clearly indicated relief sanctioned by a three judge reviewing court than to have responsibility for setting aside a state court judgment assumed by a single judge of an inferior Federal court. Considerations of delicacy and propriety need no longer deter amelioration. The appellant is not to be sacrificed upon the altar of a formal legalism too literally applied when those who from the beginning sought his life in effect confess error, when impairment of constitutional right may be perceived, and the door to clemency is closed. The order dismissing the writ is set aside, and the cause is remanded to the District Court with instructions to discharge the appellant from custody, without prejudice to the right of the commonwealth to take such other proceedings according to law as are consistent herewith. Reversed. “Hyperteehnical reasons for overruling the petition for rehearing in the instant case might be found and urged with considerable plausibility were we disposed to restrict our inquiry to the narrow bounds of purely technical considerations. With all the difficulty we have experienced in this case, and realizing that a human life is involved, we do not feel disposed to ask for a strict application of narrow and technical rules, but request rather that the ease be considered from the broad standpoint of right and justice. We have been constrained to take this position primarily upon the doubt that we entertain concerning Tom Jones’ guilt which has arisen upon a careful consideration of newly discovered evidence. If this newly discovered evidence is to be believed, then Tom Jones was convicted by perjured testimony. There is no logic or rule of law known to us whereby the infliction of the death penalty, or in fact any other punishment, upon perjured testimony can be justified. It will be remembered that one of the two witnesses whom it is claimed gave manufactured, or perjured, testimony was an infant who contradicted herself in her version of the affair and whom the newly discovered evidence convicted to perjury. “The other was a woman of ill repute and who was not present and did not know of any of the things she testified to, according to the newly discovered evidence. We have found nothing in the record that indicates that the persons who made the affidavits and gave the newly discovered evidence were biased or interested or telling an untruth. They at least stand as fair as the two witnesses whom they contradicted and convict of giving perjured testimony at the trial. Their testimony was' sufficient to convince Judge Hamilton that Tom Jones had been convicted on perjured testimony. Having the knowledge of the record, and the high regard for Judge Hamilton that we have, we are strongly inclined to the view that Tom Jones was convicted on perjured testimony. We may be in error, but this is our feeling after giving the matter more than ordinary consideration; and, feeling this way, we cannot ask the court to let the judgment of conviction stand or to allow the judgment to be carried into execution.” Question: Was there any amicus participation before the court of appeals? A. no amicus participation on either side B. 1 separate amicus brief was filed C. 2 separate amicus briefs were filed D. 3 separate amicus briefs were filed E. 4 separate amicus briefs were filed F. 5 separate amicus briefs were filed G. 6 separate amicus briefs were filed H. 7 separate amicus briefs were filed I. 8 or more separate amicus briefs were filed J. 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. Jeremiah V. O’CONNOR, Plaintiff-Appellant, v. William YEZUKEVICZ, In His Capacity as Superintendent of Maintenance at U.S. Post Office in Brockton, and Richard E. Samuelson, In His Capacity as Postmaster of the U.S. Post Office in Brockton, Defendants-Appellees. No. 78-1138. United States Court of Appeals, First Circuit. Submitted Sept. 7, 1978. Decided Nov. 21, 1978. Jeremiah V. O’Connor, pro se. Edward F. Harrington, U. S. Atty. and Richard Glovsky, Asst. U. S. Atty., Chief, Civil Division, Boston, Mass., on brief, for defendants, appellees. Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges. BOWNES, Circuit Judge. Plaintiff-appellant appeals dismissal of his complaint by the district court for lack of subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). This pro se action was brought against the superintendent of maintenance and the Postmaster of the United States Post Office in Brockton, Massachusetts, in their official capacities. The factual allegations in the complaint must, because of the dismissal, be accepted as true. Walker, Inc. v. Food Machinery, 382 .U.S. 172, 175, 86 S.Ct. 347, 15 L.Ed.2d 247 (1965). These are contained in paragraphs 1 through 5 of the Statement of Facts and can be summarized as follows: Plaintiff had a ninety day contract with the Brockton Post Office as a custodial laborer; defendant Yezukevicz notified him that his work schedule would be changed from the night shift to the day shift; plaintiff protested this change and explained that he was unable to work on the day shift and was informed that, if he could get another employee to work the day shift, he could continue on the night shift; that he obtained such a substitute, but that Yezukevicz would not accept him and “[s]ince Plaintiff was unable to work tour two [the day shift] at that time and defendant Yezukevicz refused to honor his prior agreement with the Plaintiff, the Plaintiff was summarily dismissed without cause.” We are mindful of the rule that pro se pleadings are held “to less stringent standards than formal pleadings drafted by lawyers,” Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972), and it is with this perspective that we examine the allegations as to jurisdiction and cause of action. Jurisdiction was originally asserted “under Article III, Section 2, Clause 1 of the Constitution of the United States and by 15 U.S.C. 1346.” Since 15 U.S.C. § 1346 is non-existent, we assume that plaintiff intended to cite 28 U.S.C. § 1346. In any event, the complaint was amended by asserting jurisdiction under 28 U.S.C. §§ 1339 and 1346. We assume the plaintiff is claiming jurisdiction under 28 U.S.C. § 1346(a)(2), which provides in pertinent part: (a) The district courts shall have original jurisdiction, concurrent with the Court of Claims, of: (2) Any other civil action or claim against the United States, not exceeding $10,000 in amount, founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort. We construe the complaint to predicate four causes of action: (1) breach of contract, (2) a dismissal that violated appellant’s due process rights to a hearing, (3) a deprivation of a property right to “earn an income to support himself,” and (4) an equal protection claim based on the fact that he was dismissed without a hearing “which would be granted to union members.” The relief sought was a temporary restraining order, a preliminary injunction, and a permanent injunction, “enjoining the defendants from continuing to deprive the plaintiff of his right to complete his contract with the United States Post Office.” No money damages were sought. Plaintiff also asked that defendants pay the cost of litigation and that the court “[o]rder such other relief as to this Court seems meet and just.” We turn first to the question of subject matter jurisdiction. As the district court correctly pointed out, 28 U.S.C. § 1339 .requires an independent statutory basis of jurisdiction. Appellant finds this in 39 U.S.C. § 1001(b), which provides in pertinent part: The Postal Service shall establish procedures, in accordance with this title, to assure its officers and employees meaningful opportunities for promotion and career development and to assure its officers and employees full protection of their employment rights by guaranteeing them an opportunity for a fair hearing on adverse actions, with representatives of their own choosing. We agree with the district court that this statute applies only to permanent service employees. The first two sentences of the section clearly support that reading. Officers and employees of the Postal Service (other than those individuals appointed under sections 202, 204, and 1001(c) of this title) shall be in the postal career service, which shall be a part of the civil service. Such appointments and promotions shall be in accordance with the procedures established by the Postal Service. While we find no basis for characterizing the plaintiff a probationary employee as did the district court, it is clear that 39 U.S.C. § 1001(b) is not'applicable to appellant who, by his own statement, had a ninety day contract as a custodial laborer and, therefore, does not come within the meaning of career employee. Nor can we find any other statutory source of jurisdiction that would satisfy the requirements of 28 U.S.C. § 1339. Jurisdiction under 28 U.S.C. § 1346(a)(2) also requires a separate basis; an Act of Congress, regulation of an executive department or the Constitution. Since there is no Act of Congress or executive department regulation basis, we must determine whether a constitutional claim has been alleged. Any such claim must be grounded upon a property interest that appellant has in his continued employment with the Post Office. No other constitutional deprivation has been pleaded either explicitly or by broad inference. There is no suggestion of racial discrimination- as a reason for his termination; nor is there anything in the pleadings that could be interpreted to mean that his reputation has been damaged or that his ability to find other employment has been jeopardized. See Wisconsin v. Constantineau, 400 U.S. 433, 437, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971). The stark fact is that plaintiff has no such property interest in his alleged employment contract as would ground a constitutional claim. In Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972), the Court held: To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it. Appellant’s rights as a temporary employee do not rise as high as that of a probationary employee who does not have the right to a hearing prior to employment termination. Jenkins v. U. S. Post Office, 475 F.2d 1256 (9th Cir.), cert. denied, 414 U.S. 866, 94 S.Ct. 57, 38 L.Ed.2d 86 (1973), Medoff v. Freeman, 362 F.2d 472 (1st Cir. 1966). Reduced to basics, the complaint alleges that plaintiff was hired for ninety days by the defendants, that, after a short time, he was directed to work a different shift, that, after a discussion, defendants told plaintiff he could remain on the original shift if he could get another employee to work the other shift, that, despite plaintiff’s obtaining another employee to take his place on the other shift, defendants insisted that he change shifts and, as a result, he was forced to terminate his employment. While it is understandable that plaintiff might feel he was treated unfairly, he “has not shown that he was deprived of liberty or property protected by the Fourteenth Amendment.” Board of Regents v. Roth, supra, 408 U.S. at 579, 92 S.Ct. at 2710. There is, therefore, no constitutional foundation for jurisdiction under 28 U.S.C. § 1346(a)(2). The remaining question is whether the allegation of a breach of contract is sufficient footing for a claim under 28 U.S.C. § 1346(a)(2). Appellant made no claim for money damages. He requested an injunction to allow him, in effect, to work on the night shift for the balance of the ninety day period for which he was allegedly hired. Such relief is not available under section 1346(a)(2), which is limited to claims for money damages. Hunsucker v. Phinney, 497 F.2d 29, 36 (5th Cir. 1974), cert. denied, 420 U.S. 927, 95 S.Ct. 1124, 43 L.Ed.2d 397 (1975). In his brief, appellant urges us to construe his request for “such other relief as to this Court seems meet and just” as a prayer for monetary damages. If we could see any merit in appellant’s contract claim, we might possibly be persuaded to overlook the failure to ask for damages, which could not have been other than intentional. But the contract claim is so obviously deficient that we feel that appellant should be held to his pleadings. It is one thing to construe pleadings liberally, but quite another to read into them material allegations. The fact that appellant was a law student at the time he filed the complaint raises him a few notches above the usual pro se complainant, and he might as well learn at the outset of his legal career the importance of properly and carefully drawn pleadings. Moreover, there seems no point in needlessly prolonging litigation that is obviously without any legal foundation. The order of the district court dismissing the complaint for lack of subject matter jurisdiction is affirmed. . § 1339. Postal Matters The district courts shall have original jurisdiction of any civil action arising under any Act of Congress relating to the postal service. . The district court evidently based its finding that plaintiff was a probationary employee on plaintiffs statement in the complaint that “probationary employees do not have a right to a grievance procedure.” But, under the allegations of the complaint, the plaintiff could not be considered to bé a probationary employee because that requires service in such a status for one year. 5 C.F.R., Subpart H § 315.801(a). If would appear that plaintiffs employment status would come under 5 C.F.R., Subpart D § 316.401 which provides for temporary limited appointments for one year or less. 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_respond2_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 second 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. NATIONAL LABOR RELATIONS BOARD v. NATIONAL GARMENT CO. et al. No. 13570. Circuit Court of Appeals, Eighth Circuit. Jan. 7, 1948. Rehearing Denied Feb. 5, 1948. Charles K. Hackler, Atty., National Labor Relations Board, of St. Louis, Mo. (David P. Findling, Associate Gen. Counsel, Ruth Weyand, Acting Asst. Gen. Counsel, Fannie M. Boyls and Frederick D. Vincent, Jr., Attys., National Labor Relations Board, all of Washington, D. C., on the brief), for petitioner. Victor Packman, of St. Louis, Mo., for respondent. Before SANBORN, WOODROUGH, and COLLET, Circuit Judges. WOODROUGH, Circuit Judge. This case is before the court on petition of the National Labor Relations Board pursuant to Section 10(e) of the National Labor Relations Act, 49 Stat. 449, 29 U.S.C.A. § 151 et seq., for enforcement of its order issued against respondents on August 6, 1946 (69 N.L.R.B. 1208). The petition was filed in this court in'May 1947, some three months prior to August 22, 1947, the effective date of the Act to amend the National Labor Relations Act. The answers of respondents to the petition were filed here in June 1947 and the brief of the Board was filed in October, 1947. The proceedings before the Board culminating in the issuance of the order now before the court were initiated by the filing of charges on March 3, 1945, by the International Ladies Garment Workers Union, AFL, herein called the union, alleging that respondent National Garment Company, herein called National, at its Wellsville, Missouri, plant had engaged in certain acts violative of Section 8(1) and (3) of the Act. On July 12, 1945, National leasedi this entire plant and equipment to Wells-Wear Company, herein called Wells-Wear, which continued operation of the plant without change in personnel or in manner of doing business. Thereafter, on August 17, 1945, the union filed a first amended charge with the Board alleging that National and Wells-Wear had engaged in unfair labor practices within the meaning of Section 8(1), (3) and (5) of the Act. After the usual proceedings under Section 10 of the Act, in which both National and Wells-Wear fully participated, the Board issued its decision and order, which may be summarized briefly as follows: 1. The applicability of the Act to respondents’ operations. — The respondent National is a Missouri corporation engaged in the manufacture of wearing apparel, chiefly boys’ shirts. At the time of the occurrences hereinafter discussed, it operated plants in St. Louis and Chaffee, as well as in Wellsville, Missouri, where the unfair labor practices occurred. Material cut at National’s St. Louis plant was sent to the Wellsville plant for assembly and thence returned to the St. Louis plant where it was commingled with other merchandise for sale and distribution. During 1944, National purchased raw materials of a value greater than $80,000, more than 90 percent of which was received from points outside the State of Missouri. During the same period, National manufactured finished products of a value greater than $100,000, more than 50 per cent of which was shipped through intermediary Missouri wholesale companies to points outside the state. During 1945 up to the date of the hearing in September about 50 per cent of the raw materials purchased by National came from outside the state and a substantial amount of its total sales of about $750,-000 was shipped outside the state. As in 1944, the sales were made to Missouri wholesale firms which distributed the merchandise, commingled with merchandise from other sources, to customers both inside and outside the state. On July 5, 1945, respondent Wells-Wear, also a Missouri corporation, commenced operating National’s Wellsville plant. The plant’s function in the integrated scheme of production by National did not change. Wells-Wear continued to operate as a processing plant for material received from National’s St. Louis plant. At the time of the hearing Wells-Wear had not engaged in production for any concern except National. Upon these facts, which were undisputed, the Board concluded that the operations of both National and Wells-Wear affected commerce within the meaning of the Act. 2. The unfair labor practices. — The Board found that National, by threatening and coercive speeches to its employees, by inquiries into their organizational activities and the procuring of affidavits from them in regard to such activities, and by the lay-off of its Wellsville employees, interfered with, restrained, and coerced its employees and discriminated against them within the meaning of Section 8(1) and (3) of the Act. It found also that by refusing to bargain with the union as the representative of the employees at Wellsville within an appropriate bargaining unit, National violated Section 8(5) and (1) of the Act. The Board further found that Wells-Wear, which succeeded to and continued to operate the Wellsville plant with the same management and personnel and as a branch or adjunct to National, must necessarily be regarded as identical and inseparable from National for the purpose of safeguarding the statutory rights of the Wellsville employees; and that by refusing to bargain with the union, and by otherwise failing to remedy the unfair labor practices commenced by National, Wells-Wear engaged in unfair labor practices within the meaning of Section 8(1) (3) and (5) of the Act. 3. The Board’s order. — The Board ordered National and its officers, agents, successors, and assigns to make whole the employees whom it had discriminatorily laid off for any loss in pay suffered by them as a result of the lay-off; and ordered both National and Wells-Wear and their officers, agents, successors, and assigns to cease and desist from the unfair labor practices found; upon demand, to bargain collectively with the union; upon application of employee Abbie Ruth Cobb, to reinstate her, and if they refuse to reinstate her, to make her whole for loss of wages which she may suffer as the result of such refusal; and to post appropriate notices. After the Board filed its petition in this court for the enforcement of its order against respondents, respondents petitioned this court for leave to adduce additional evidence for the purpose of showing that the operation of National’s Wellsville plant had again changed hands, that this time the plant was leased by National to and was being operated by persons unconnected with respondents and that consequently parts of the Board’s order were unenforceable. The Board opposed respondents’ motion to adduce such additional evidence and this court, on June 23, 1947, after oral argument of the parties, denied the motion. The respondents resist the enforcement of the Board’s order on the grounds: (1) That the 1947 amendments to the National Labor Relations Act have voided all those orders of the Board, including the order here in question, which were rendered but not enforced prior to the effective date of the amending Act; (2) that the changes in ownership which have occurred in respect to the plant at Wellsville since the occurrence there of unfair labor practices found by the Board render the order moot and compliance impossible; (3) that the finding of violation of Section 8(3) is not supported by evidence; (4) because the order for back pay to be made to the employees (with one exception) was not coupled with an order for the reinstatement of the employees (as to the one exception, Abbie Ruth Cobb, it is contended that there was no evidence to support the Board’s order) ; (5) because the order does not contain findings that it is to effectuate the policies of the Act; (6) because the order is void for vagueness, uncertainty and lack of specificity. 1'. Effect of 1947 Amendments. Section 3(a) of the Act, effective August 22, 1947, 29 U.S.C.A. § 153(a), provides that “the National Labor Relations Board (hereinafter called the ‘Board’) created by this Act prior to its amendment by the Labor Management Relations Act, 1947, is continued as an agency of the United States, except that the Board shall consist of five instead of three members, * * * ” and on October 24th of this year the Board, constituted as required by the amending Act, was confronted in the case of Marshall and Bruce Company, etc., No. 10-C-1792, with the question as to the effect if any of the amendatory legislation on the Board’s power to adjudicate unfair labor practice controversies which arose prior thereto. The Board stated: “In our opinion, this question is authoritatively answered in the general savings statute enacted by Congress in 1871, which sets forth ‘Rules for the Construction’ of amendatory and repealing legislation. This statute provides as follows: “ ‘The repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing Act shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action .or prosecution for the enforcement of such penalty, forfeiture or liability.’ “The general savings statute is now Section 29 of Title I of the United States Code [1 U.S.C.A. § 29], a title promulgating rules applicable to all federal statutes, and is therefore generally applicable to the legislation here under consideration. “The term ‘liability’ as used in the general savings statute has been broadly construed by the courts to comprehend all obligations arising out of any breach of a statutory duty. The obligations of employers arising out of violations of the National Labor Relations Act are clearly ‘liabilities’ within the meaning of the general savings statute, as it has been consistently interpreted. Under that statute such liabilities continue to have binding effect, notwithstanding the passage of the amendment, unless Congress manifested therein an intention to extinguish such liability. But clearly Congress made no provision in the amendment for absolving employers of liability for unfair labor practices committed prior to such amendment. Indeed, the legislative history indicates a contrary intent, for Congress expressly considered and rejected a proposal which would have had the effect of prohibiting entry by the Board or enforcement by the courts of any order based on prior unfair labor practices unless the conduct involved continued to be an unfair labor practice under the amending statute. To this extent therefore, the new law does not operate retroactively. “In view of the foregoing, we are of the opinion that the general savings statute must be held to preserve ‘all liabilities’ arising under the National Labor Relations Act prior to amendment. Accordingly, the Board unanimously concludes and finds as a matter of law that the enactment of the recent amendments does not impair our power to adjudicate the present case, or any other case which may have arisen prior to such amendments, and to issue an appropriate order therein.” We do not disagree with the quoted conclusions of the Board. Comparison of the provisions of the old Act with those of the 1947 Amendments has convinced that nothing in the Labor Management Relations Act has deprived this court of its jurisdiction in this case over “the proceeding and of the question determined therein” or of its “power * * * to grant relief * * * and enter decree enforcing in whole or in part * * * the order of the Board.” The Board has heard and made its determination upon charges of breaches of statutory duty by respondents, prescribed the resultant obligations of respondents and fixed the liability incurred by respondents under the old Act to the extent of its powers. The obligations imposed upon respondents by the Board’s order are “liabilities” within the meaning of the general saving statute, 1 U.S.C.A. § 29, and Congress manifested no intention in the amendments to release or extinguish any such obligations. They continue therefore to have binding effect upon respondents subject to the jurisdiction of this court to grant or deny enforcement of the Board’s order. Insofar as Congress amended certain procedural provisions of the Act it reflected no intention to reach back and nullify procedural steps already taken. Those steps already taken, pleadings, and all things done under the old law must stand. Procedural changes operate in the future. 2. The Changes in Ownership. Although the charges of unfair labor practices in this case were first made against respondent National Garment Company alone, respondent Wells-Wear was included by amended charges before the case was brought on for hearing and the evidence supports the Board’s finding that: “Under all the circumstances, particularly the unified and integrated nature of the operations conducted by National and Wells-Wear and the common control of Rothbarth over the labor policies of both respondents, we are convinced and find that National is in a position to, and does virtually control, Wells-Wear; that Wells-Wear functions in effect'merely as a branch or adjunct to National; that National, Wells-Wear and Rothbarth are joint employers at the Wellsville plant, within the meaning of Section 2(2) of the Act; and that both corporate entities (National and Wells-Wear) must necessarily be regarded as identical and inseparable for the purpose of safeguarding the statutory rights of the employees at the Wellsville plant. We further find that Wells-Wear, as well as National, is responsible for the unfair labor practices committed at the Wellsville plant and that to effectuate the policies of the Act it is necessary for both respondents to remedy such unfair labor practices.” The Board’s direction of its order to both respondents is in accord with this court’s decision in N. L. R. B. v. Adel Clay Products Co., 8 Cir., 134 F.2d 342. The contentions of respondents that further changes in the ownership of the Wellsville plant occurring since the issuance of the Board’s order have rendered this case moot and their compliance with the order impossible are not considered in this opinion. The duty of this court to rule and act upon applications of the Board for enforcement orders must be discharged, notwithstanding the rights which plant owning employers have to divest themselves of their relationship to the properties. Our refusal to remand the case to the Board to take additional evidence was in the exercise of discretion and the Board’s petition for enforcement is ruled on in this opinion as of the date of issuance of the order. 3. The Sufficiency of the Evidence. The findings of the Board that respondents engaged in unfair labor practices within the meaning of Section 8(1) (3) and (5) of the Act are supported by substantial evidence in that there was such evidence that they laid off the employees and coerced, threatened and intimidated them to hinder and prevent them from acting collectively in labor union organization. The contention of respondents that they did not discriminate against the employees because they laid off all employees, both union and non-union, may not be sustained. They discriminated against all employees by treating them differently than they would have treated them had some of them not joined the union within the plain intendment of Sections 7 and 8(1) (3), “It shall be an unfair labor practice for an employer * * * to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7 [of self organization in labor unions] (3) by discrimination in regard to * * * tenure of employment.” N. L. R. B. v. Cape County Milling Co., 8 Cir., 140 F.2d 543, 152 A.L.R. 144; N. L. R. B. v. Somerset Shoe Co., 1 Cir., 111 F.2d 681; N. L. R. B. v. National Motor Bearing Co., 9 Cir., 105 F.2d 652, 657, 658. 4. Back Pay Without Reinstatement. The respondents contend that the back pay ordered by the Board may not be enforced because the workers resumed their employment before the case came to the Board and therefore no order for their reinstatement was coupled with the back pay order. They cite N. L. R. B. v. Carlisle Lumber Co., 9 Cir., 99 F.2d 533. This court ruled contrary to the contention long after the decision in the Carlisle Lumber Co. case, in N. L. R. B. v. Skinner & Kennedy Stationery Co., 8 Cir., 113 F.2d 667, 669, and we think our ruling is in accord with Phelps Dodge Corp. v. N. L. R. B., 313 U.S. 177, 197-200, 61 S.Ct. 845, 85 L.Ed. 1271, 133 A.L.R. 1217, and N. L. R. B. v. Link-Belt Co., 311 U.S. 584, 61 S.Ct. 358, 85 L.Ed. 368, The contention is not sustained. As to the employee Abbie Ruth Cobb, we find the order of the Board is sustained by the evidence. 5. Findings as to Effectuating the Policies of the Act. On this point respondents cite and rely on Phelps Dodge Corp. v. N. L. R. B., 313 U.S. 177, 196, 200, 61 S.Ct. 845, 853, 85 L.Ed. 1271, 133 A.L.R. 1217, where it appeared to the court that the Board has “determined only the dry legal question of its power, which we sustain; it did not consider whether in employing that power the policies of the Act would be enforced,” but examination of the Board’s decision and order here disclose no analogous situation. Here the Board declared that: “we are convinced that the policies of the Act can only be effectuated by requiring Wells-Wear as well as National to remedy the unfair labor practices found to exist at the Wellsville plant”; “Upon the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, the National Labor Relations Board hereby orders”; “the respondents * * * their officers, agents, successors and assigns, shall take the following affirmative action which the Board finds will effectuate the policies of the Act”; and from the context considered with the declarations it is clear that the Board’s order was based on its determination that the order would effectuate the policies of the Act. 6. The Certainty of the Order. The record before us does not show on its face that any of the things ordered or forbidden are insufficiently defined or incapable of performance and the order is in the form sanctioned by long usage. It is sustained as to form. Examination of the whole record has convinced that the evidence presented to the Board an unusual clear instance of infringement on the part of the employer of the requirements of the Act in respect to the right of his employees to self organization and refusal to bargain and that enforcement should be ordered as prayed. Enforcement ordered. On Petition for Rehearing and Objections of Respondents to Proposed Decree. PER CURIAM. This court has determined that the order of the National Labor Relations Board, under review, was a valid order and that the Board is entitled to have it enforced. A proposed decree has been submitted. The respondents assert that much of the Board’s order, because of changed conditions, is unenforceable, and apparently believe that this court, before entering a decree, must ascertain to what extent the respondents will be able to comply with the order. Obviously, the respondents cannot be compelled to do the impossible. It is our opinion, however, that it will be for the Board initially to determine how far compliance reasonably can be exacted under present conditions. The petition for rehearing is denied, and the objections to the proposed decree are overruled. “ Act of February 25, 1871, 16 Stat. 431, 1 U.S.C.A. § 29. This statute changed the then existing federal common law rule that the repeal of a prior statute had the effect of extinguishing all liabilities thereunder. See United States v. Tynen, 11 Wall. 88, 95, 20 L.Ed. 153. “ On March 22, 1944, Congress amended this statute to add the following sentence, c.123, 58 Stat. 118, 1 U.S.C.A. § 29: ‘The expiration of a temporary statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the temporary statute shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture or liability.’ The term has been interpreted to include ‘liability to be imprisoned’ arising out of a violation of a criminal statute (United States v. Reisinger, 128 U. S. 398, 403, 9 S.Ct. 99, 32 L.Ed. 480); liability to pay inheritance taxes resulting from the death of the testator prior to repeal of the tax law (Hertz v. Woodman, 218 U.S. 205, 218, 30 S.Ct. 621, 54 L.Ed. 1001); liability after repeal of the Eighteenth Amendment to pay tax on alcohol diverted to beverage purposes imposed in the Revenue Act of 1926 (United States v. United States Industrial Alcohol Co., D.C.Md., 8 F.Supp. 179); ‘liability’ of a creditor who had received property from his debtor under circumstances constituting an unlawful preference under the Bankruptcy Act, to refund it to the Assignee of the debtor in bankruptcy (Tinker v. Van Dyke, C.C.Mich., 1876, Fed.Cas.No.14,058; and ‘liability’ to forfeiture of imported goods knowingly entered by means of a false invoice (United States v. Four Cases of Lastings, D.C.N.Y., 1879, Fed.Cas.No. 15,145. See also Warren v. Garber, C.C.Va., 1877, Fed.Cas.No.17,196; Bradbury v. Galloway, D.C.Cal., 1877, Fed. Cas.No.1,764; De Four v. United States, 9 Cir., 260 F. 596, 599, certiorari denied, 253 U.S. 487, 40 S.Ct. 485, 64 L. Ed. 1026; Goublin v. United States, 9 Cir., 261 F. 5; Lang v. United States, 7 Cir., 133 F. 201; United States v. Krupnick, D.C.N.J., 51 F.Supp. 982, 989; United States v. Auerbach, D.C.Cal., 68 F.Supp. 776-778-780; Peters v. Felber, 66 Cal.App.2d Supp. 1011, 1012, 1013, 152 P.2d 42. “ See Great Northern Ry. Co. v. United States, 208 U.S. 452, 465, 28 S.Ct. 313, 52 L.Ed. 567; United States v. Chicago, St. P., M. & O. Ry. Co., D.C., 151 F. 84, 93, 94, affirmed 8 Cir., 162 F. 835, certiorari denied, 212 U.S. 579, 29 S.Ct. 689, 53 L.Ed. 659; Lang v. United States, 7 Cir., 133 F. 201, 206, 207; Ex parte Lamar, 2 Cir., 274 F. 160, 172, affirmed per curiam 260 U.S. 711, 43 S.Ct. 251, 67 L.Ed. 476; Maceo v. United States, 5 Cir., 46 F.2d 788, 789. “ See Section 102(e) of the H. R. 3020, 80th Congress 1st Sess.; Conf. Report p. 61, House Report No. 510, 80th Congress 1st Session.” Question: This question concerns the second 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_r_nonp
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 "groups and associations". 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. ESTATE STOVE CO. v. GRAY & DUDLEY CO. No. 5236. Circuit Court of Appeals, Sixth Circuit. June 13, 1930. F. M.- Bass, of Nashville, Tenn. (Greer Mareehal, of Dayton, Ohio, Fyke Farmer and Bass, Berry & Sims, all of Nashville, Tenn., and Drury W. Cooper, of New York City, on the brief), for appellant. K. T. MeConnieo and C. P. Hatcher, both of Nashville, Tenn. (Pitts, MeConnieo & Hatcher, of Nashville, Tenn., on the brief), for appellee. Before DENISON, MACK, and MOOR-MAN, Circuit Judges. ' DENISON Circuit Judge The plaintiff below, appellant here, is a long-established manufacturer of stoves, Prior to 1921, it and many other manufaeturers had made heaters consisting of what was essentially a stove surrounded with a easing and providing an intervening air jacket. Air was taken in near the floor, passed upward as it was heated, and discharged through gratings at the top, thus providing a circulatory heating system for a room. Also prior to 1921, the phonograph or vietrola cabinet had' come to be a common article of room furnishing, and different styles and makes had a fairly typical and common appearanee. At this time, plaintiff had wha,t turned out to be a happy thought — making its circulating heater in the similitude of one of these cabinets, using therefor the size, form, and imitation of wood finish appropriate to accomplish the resemblance. Plaintiff named this article “Heatrola,” and this name, in connection with the plaintiff’s name, was prominently displayed^ on the front, Following this adoption, plaintiff advertised its Heatrola very extensively and, as the District Judge said, in every conceivable manner. Undoubtedly^ before 1925 its appearanee and ^identifying name had become familiar to a substantial part of the stove-purchasing public the country over. In the last named year the defendant, also a stove manufacturer, put upon the market a similar article. Its general resemblance to the conventional music cabinet was very obvious, and for the same reason it strongly resembled plaintiff’s Heatrola. In 1926 this suit was brought alleging unfair competition. The District Court dismissed the bill. It is .clear enough, we think, that any manufacturer of articles for household use is primarily free to east Ms product in the form, as near as may be, of some other household article. Such an imitation or adaptation may be very appealing and load to a large demand; hut where no mechanical invention is involved the law provides no means for giving monopoly to the one who first gets the idea, except as such means may be found in a design patent. The ease is substantially parallel with that of one who takes a descriptive word and uses it as the name of his commercially new article. The familiar form of an article of furniture, like the descriptive word, is open to appropriation and use or imitation by any one; the first user can acquire quasi exclusive rights only by use long enough and exclusive enough to give the word a secondary meaning, so that to that part of the public espethe word, or the form, indicates the ongm of the article. Whether the record in this case justifies the conclusion that in 1925 a room heater in the form of a music cabinet had come to be publicly thought of, ipso facto, as the Heatrola of plaintiff, is much controverted, and the right conclusion is certainly not easy to bo drawnt For the purposes of this opinion, assume that the claimed secondary meanjng was then fairly established. The result would be that defendant could not put out its stove in this mnsic-cabinet form without so differentiating its product as to neutralize the otherwise natural public confusion. This the defendant says it undertook to do. Its article name, “Washington Home Furnace,” an¿ its own name it displayed prominently enough, not on the outside front of the eabinet as plaintiff did, but upon the doors which immediately inclosed the firepot and which were seen as soon as the outside casing doors were opened. If this marking had been upon fog outside, it would hardly be denied that Qie differentiation was sufficient; but whether S1lch a nonexterior marking is likewise en0Ug}i when in some less obvious position must depend, we think, upon the nature of £jjg article and the reasonable certainty that mark will be seen and appreciated by the ordinary purchaser. Misleading of the dealers 0f course, not involved; they would gurdy understand that they were buying £rom plaintiff’s competitor. We think the nature 0f this article and its natural handling in the stores are such that the ordinary purchaser would understand that he was not buying a Heatrola. Considering the class of purchasers who would be the normal customers for such an article, it would not often be purchased merely from an advertisement or from a hasty glance at one on display, hut it would naturally be somewhat carefully examined by the purchaser. He would be curious about its operation. He would examine to see how the fuel was put in, where it was burned, how the ashes were taken out, etc.; and a sale made without opening the outside casing and being confronted by defendant’s name as the maker and by defendant’s adopted trade name of the article, would be so far unusual as to negative any inference of probable misleading. Doubtless there are many articles as to wMeh the. maker, adopting an external resemblance to another’s product, ought to give “the antidote with the bane,” and display his own marks prominently on the outside, because sales would be made upon a first impression of identity; but we cannot so classify this heater; sales would-not be so made. The principles to he applied are, sufficiently discussed jn our opinions in Globe Wernicke Co. v. Macey (C. C. A.) 119 F. 696, 703; Merriam v. Scalfield (C. C. A.) 238 F. 1; Upjohn v. Merrell Co. (C. C. A.) 269 F. 209; and Moline Co. v. Dayton Co. (C. C. A.) 30 F.(2d) 16. See also Cheney v. Doris (C. C. A. 2) 35 F.(2d) 279. In one respect defendant transgressed the limits of fair competition. Plaintiff advertised in national periodicals with a colored print of its article, accompanied by the phrase (called the slogan), “No, this is not a phonograph.” Defendant advertised with a very similar print of its article, accompanied by the “slogan,” “No, this is- not a Vietrola.” ’ It would be the inevitable,. and therefore it must be thought the intended, result that this close imitation of plaintiff’s picture and slogan would he confusing. Those who had been familiar with plaintiff’s characteristic advertising and inclined to buy from plaintiff, and then had this desire promoted by plaintiff’s advertising, might open up a correspondence with defendant without noticing that defendant was not plaintiff. This advertising was dearly wrongful and subject to injunction. It is true that this was not long continued, but plaintiff- was ’ not obliged to rely upon defendant’s discontinuance. It was entitled to injunction. Walker on Patents (6th Ed.) § 741. However, we think it dear that it would be impossible ta trace to this single element of forbidden unfair competition any distinct damage; the substantial thing to which plaintiff’s loss of trade was due was the general resemblance, and we have held that this was not, under the circumstances, forbidden; for the damage caused for this too closely imitated advertising,, plaintiff is not entitled to an accounting. Ludington v. Leonard (C. C. A. 2) 127 F. 155, 157; I. T. S. Co. v. Tee Pee Co. (C. C. A. 6) 288 F. 794, 798; W. A. Gaines v. Rock Spring Co. (C. C. A.) 226 F. 531, reversed (246 U. S. 312, 38 S. Ct. 327, 62 L. Ed. 738), but not on this point. The decree below should he modified so as to award an injunction to the extent indicated by this opinion, and not otherwise; appellant should recover the costs of - this court; and the relief to be granted in the court below, being only partial and perhaps relatively unimportant, the costs of that court will be awarded, or divided, according to the discretion of that court. Question: What is the total number of respondents in the case that fall into the category "groups and associations"? Answer with a number. 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. BABBITT, GOVERNOR OF ARIZONA, et al. v. UNITED FARM WORKERS NATIONAL UNION et al. No. 78-225. Argued February 21, 1979 — Decided June 5, 1979 White, J., delivered the opinion for the Court, in which Burger, C. J., and Stewart, BlackmuN, Powell, Rehnquist, and SteveNS, JJ., joined. BrenNAN, J., filed an opinion concurring in part and dissenting in part, in which Marshall, J., joined, post, p. 314. Rex E. Lee, Special Assistant Attorney General of Arizona, argued the cause for appellants. With him on the briefs were Robert Corbin, Attorney General, John A. LaSota, Jr., former Attorney General, Charles E. Jones, Jon L. Kyi, and John B. Weldon, Jr. Jerome Cohen argued the cause for appellees. With him on the brief was James Rutkowski ;Joseph Herman filed a brief for the Agricultural Producers Labor Committee et al. as amici curiaé urging reversal. Briefs of amici curiae urging affirmance were filed by Mark D. Rosen-baum, Fred Okrand, and Dennis M. Perluss for the American Civil Liberties Union Foundation of Southern California et al.; and by J. Albert Woll and Laurence Gold for the American Federation of Labor and Congress of Industrial Organizations. Marvin J. Brenner and Ellen Lake filed a brief for the Agricultural Labor Relations Board as amicus curiae. Mr. Justice White delivered the opinion of the Court. In this case we review the decision of a three-judge District Court setting aside as unconstitutional Arizona’s farm labor statute. The District Court perceived particular constitutional problems with five provisions of the Act; deeming these provisions inseparable from the remainder of the Act, the court declared the entire Act unconstitutional and enjoined its enforcement. We conclude that the challenges to two of the provisions specifically invalidated did not present a case or controversy within the jurisdiction of a federal court and hence should not have been adjudicated. Although the attacks on two other provisions were justiciable, we conclude that the District Court should have abstained from deciding the federal issues posed until material, unresolved questions of state law were determined by the Arizona courts. Finally, we believe that the District Court properly reached the merits of the fifth provision but erred in invalidating it. Acordingly, we reverse the judgment of the District Court. I In 1972, the Arizona Legislature enacted a comprehensive scheme for the regulation of agricultural employment relations. Arizona Agricultural Employment Relations Act, Ariz. Rev. Stat. Ann. §§23-1381 to 23-1395 (Supp. 1978). The statute designates procedures governing the election of employee bargaining representatives, establishes various rights of agricultural employers and employees, proscribes a range of employer and union practices, and establishes a civil and criminal enforcement scheme to ensure compliance with the substantive provisions of the Act. Appellees — the United Farm Workers National Union (UFW), an agent of the UFW, named farmworkers, and a supporter of the UFW — commenced suit in federal court to secure a declaration of the unconstitutionality of various sections of the Act, as well as of the entire Act, and an injunction against its enforcement. A three-judge District Court was convened to entertain the action. On the basis of past instances of enforcement of the Act and in light of the provision for imposition of criminal penalties for “violation of] any provision” of the Act, Ariz. Rev. Stat. Ann. § 23-1392 (Supp. 1978), the court determined that appellees’ challenges were presently justiciable. Reaching the merits of some of the claims, the court ruled unconstitutional five distinct provisions of the Act. Specifically, the court disapproved the section specifying election procedures, § 23-1389, on the ground that, by failing to account for seasonal employment peaks, it precluded the consummation of elections before most workers dispersed and hence frustrated the associational rights of agricultural employees. The court was also of the view that the Act restricted unduly the class of employees technically eligible to vote for bargaining representatives and hence burdened the workers’ freedom of association in this second respect. The court, moreover, ruled violative of the First and Fourteenth Amendments the provision limiting union publicity-directed at consumers of agricultural products, § 23-1385 (B)(8), because as it construed the section, it proscribed innocent as well as deliberately false representations. The same section was declared infirm for the additional reason that it prohibited any consumer publicity, whether true or false, implicating a product trade name that “may include” agricultural products of an employer other than the employer with whom the protesting labor organization is engaged in a primary dispute. The court also struck down the statute’s criminal penalty provision, § 23-1392, on vagueness grounds, and held unconstitutional the provision excusing the employer from furnishing to a labor organization any materials, information, time, or facilities to enable the union to communicate with the employer’s employees. § 23-1385 (C). The court thought that the latter provision permitted employers to prevent access by unions to migratory farmworkers residing on their property, in violation of the guarantees of free speech and association. Finally, the court disapproved a provision construed as mandating compulsory arbitration, § 23-1393 (B), on the ground that it denied employees due process and the right to a jury trial, which the District Court found guaranteed by the Seventh Amendment. The remainder of the Act fell “by reason of its inseparability and inoperability apart from the provisions found to be invalid.” 449 F. Supp. 449, 467 (Ariz. 1978). Appellants sought review by this Court of the judgment below. Because of substantial doubts regarding the justicia-bility of appellees’ claims, we postponed consideration of our jurisdiction to review the merits. 439 U. S. 891 (1978). We now hold that, of the five provisions specifically invalidated by the District Court, only the sections pertaining to election of bargaining representatives, consumer publicity, and imposition of criminal penalties are susceptible of judicial resolution at this time. We further conclude that the District Court should have abstained from adjudicating appellees’ challenge to the consumer publicity and criminal penalty provisions, although we think the constitutionality of the election procedures was properly considered even lacking a prior construction by the Arizona courts. We are unable to sustain the District Court’s declaration, however, that the election procedures are facially unconstitutional. II We address first the threshold question whether appellees have alleged a case or controversy within the meaning of Art. Ill of the Constitution or only abstract questions not currently justiciable by a federal court. The difference between an abstract question and a “case or controversy” is one of degree, of course, and is not discernible by any precise test. See Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U. S. 270, 273 (1941). The basic inquiry is whether the “conflicting contentions of the parties... present a real, substantial controversy between parties having adverse legal interests, a dispute definite and concrete, not hypothetical or abstract.” Railway Mail Assn. v. Corsi, 326 U. S. 88, 93 (1945); see Evers v. Dwyer, 358 U. S. 202, 203 (1958); Maryland Casualty Co. v. Pacific Coal & Oil Co., supra. A plaintiff who challenges a statute must demonstrate a realistic danger of sustaining a direct injury as a result of the statute’s operation or enforcement. O’Shea v. Littleton, 414 U. S. 488, 494 (1974). But “[o]ne does not have to await the consummation of threatened injury to obtain preventive relief. If the injury is certainly impending that is enough.” Pennsylvania v. West Virginia, 262 U. S. 553, 593 (1923); see Regional Rail Reorganization Act Cases, 419 U. S. 102, 143 (1974); Pierce v. Society of Sisters, 268 U. S. 510, 526 (1925). When contesting the constitutionality of a criminal statute, “it is not necessary that [the plaintiff] first expose himself to actual arrest or prosecution to be entitled to challenge [the] statute that he claims deters the exercise of his constitutional rights.” Steffel v. Thompson, 415 U. S. 452, 459 (1974); see Epperson v. Arkansas, 393 U. S. 97 (1968); Evers v. Dwyer, supra, at 204. When the plaintiff has alleged an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder, he “should not be required to await and undergo a criminal prosecution as the sole means of seeking relief.” Doe v. Bolton, 410 U. S. 179, 188 (1973). But “persons having no fears of state prosecution except those that are imaginary or speculative, are not to be accepted as appropriate plaintiffs.” Younger v. Harris, 401 U. S. 37, 42 (1971); Golden v. Zwickler, 394 U. S. 103 (1969). When plaintiffs “do not claim that they have ever been threatened with prosecution, that a prosecution is likely, or even that a prosecution is remotely possible,” they do not allege a dispute susceptible to resolution by a federal court. Younger v. Harris, supra, at 42. Examining the claims adjudicated by the three-judge court against the foregoing principles, it is our view that the challenges to the provisions regulating election procedures, consumer publicity, and criminal sanctions — but only those challenges — present a case or controversy. As already noted, appellees’ principal complaint about the statutory election procedures is that they entail inescapable delays and so preclude conducting an election promptly enough to permit participation by many farmworkers engaged in the production of crops having short seasons. Appellees also assail the assert-edly austere limitations on who is eligible to participate in elections under the Act. Appellees admittedly have not invoked the Act’s election procedures in the past nor have they expressed any intention of doing so in the future. But, as we see it, appellees’ reluctance in this respect does not defeat the justiciability of their challenge in view of the nature of their claim. Appellees insist that agricultural workers are constitutionally entitled to select representatives to bargain with their employers over employment conditions. As appellees read the statute, only representatives duly elected under its provisions may compel an employer to bargain with them. But appellees maintain, and have adduced evidence tending to prove, that the statutory election procedures frustrate rather than facilitate democratic selection of bargaining representatives. And the UFW has declined to pursue those procedures, not for lack of interest in representing Arizona farmworkers in negotiations with employers, but due to the procedures’ asserted futility. Indeed, the UFW has in the past sought to represent Arizona farmworkers and has asserted in its complaint a desire to organize such workers and to represent them in collective bargaining. Moreover, the UFW has participated in nearly 400 elections in California under procedures thought to be amenable to prompt and fair elections. The lack of a comparable opportunity in Arizona is said to impose a continuing burden on appellees’ associational rights. Even though a challenged statute is sure to work the injury alleged, however, adjudication might be postponed until “a better factual record might be available.” Regional Rail Reorganization Act Cases, supra, at 143. Thus, appellants urge that we should decline to entertain appellees’ challenge until they undertake to invoke the Act’s election procedures. In that way, the Court might acquire information regarding how the challenged procedures actually operate, in lieu of the predictive evidence that appellees introduced at trial. We are persuaded, however, that awaiting appellees’ participation in an election would not assist our resolution of the threshold question whether the election procedures are subject to scrutiny under the First Amendment at all. As we regard that question dispositive to appellees’ challenge — as elaborated below — we think there is no warrant for postponing adjudication of the election claim. Appellees’ twofold attack on the Act’s limitation on consumer publicity is also justiciable now. Section 23-1385 (B) (8) makes it an unfair labor practice “[t]o induce or encourage the ultimate consumer of any agricultural product to refrain from purchasing, consuming or using such agricultural product by the use of dishonest, untruthful and deceptive publicity.” And violations of that section may be criminally punishable. § 23-1392. Appellees maintain that the consumer publicity provision unconstitutionally penalizes inaccuracies inadvertently uttered in the course of consumer appeals. The record shows that the UFW has actively engaged in consumer publicity campaigns in the past in Arizona, and appellees have alleged in their complaint an intention to continue to engage in boycott activities in that State. Although appellees do not plan to propagate untruths, they contend— as we have observed — that “erroneous statement is inevitable in free debate.” New York Times Co. v. Sullivan, 376 U. S. 254, 271 (1964). They submit that to avoid criminal prosecution they must curtail their consumer appeals, and thus forgo full exercise of what they insist are their First Amendment rights. It is urged, accordingly, that their challenge to the limitation on consumer publicity plainly poses an actual case or controversy. Appellants maintain that the criminal penalty provision has not yet been applied and may never be applied to commissions of unfair labor practices, including forbidden consumer publicity. But, as we have noted, when fear of criminal prosecution under an allegedly unconstitutional statute is not imaginary or wholly speculative a plaintiff need not “first expose himself to actual arrest or prosecution to be entitled to challenge [the] statute.” Steffel v. Thompson, 415 U. S., at 459. The consumer publicity provision on its face proscribes dishonest, untruthful, and deceptive publicity, and the criminal penalty provision applies in terms to “[a]ny person... who violates any provision” of the Act. Moreover, the State has not disavowed any intention of invoking the criminal penalty provision against unions that commit unfair labor practices. Appellees are thus not without some reason in fearing prosecution for violation of the ban on specified forms of consumer publicity. In our view, the positions of the parties are sufficiently adverse with respect to the consumer publicity provision proscribing misrepresentations to present a case or controversy within the jurisdiction of the District Court. Section 23-1385 (B) (8) also is said to limit consumer appeals to those directed at products with whom the labor organization involved has a primary dispute; as appellees construe it, it proscribes “publicity directed against any trademark, trade name or generic name which may include agricultural products of another producer or user of such trademark, trade name or generic name” Appellees challenge that limitation as unduly restricting protected speech. Ap-pellees have in the past engaged in appeals now arguably prohibited by the statute and allege an intention to continue to do the same. For the reasons that appellees’ challenge to the first aspect of the consumer publicity provision is justiciable, we think their claim directed against the second aspect may now be entertained as well. We further conclude that the attack on the criminal penalty provision, itself, is also subject to adjudication at this time. Section 23-1392 authorizes imposition of criminal sanctions against “'[a]ny person... who violates any provision” of the Act. Appellees contend that the penalty provision is unconstitutionally vague in that it does not give notice of what conduct is made criminal. Appellees aver that they have previously engaged, and will in the future engage, in organizing, boycotting, picketing, striking, and collective-bargaining activities regulated by various provisions of the Act. They assert that they cannot be sure whether criminal sanctions may be visited upon them for pursuing any such conduct, much of which is allegedly constitutionally protected. As we have noted, it is clear that appellees desire to engage at least in consumer publicity campaigns prohibited by the Act; accordingly, we think their challenge to the precision of the criminal penalty provision, itself, was properly entertained by the District Court and may be raised here on appeal. If the provision were truly vague, appellees should not be expected to pursue their collective activities at their peril. Appellees’ challenge to the access provision, however, is not justiciable. The provision, § 23-1385 (C), stipulates that “[n]o employer shall be required to furnish or make available to a labor organization... information, time, or facilities to enable such... labor organization... to communicate with employees of the employer, members of the labor organization, its supporters, or adherents.” Appellees insist, and the District Court held, that this provision deprives the Arizona Employment Relations Board — charged with responsibility for enforcing the Act — -of any discretion to compel agricultural employers to furnish materials, information, time, or facilities to labor organizations desirous of communicating with workers located on the employers’ property and that the section for this reason violates the First and Fourteenth Amendments to the Constitution. It may be accepted that the UFW will inevitably seek access to employers’ property in order to organize or simply to communicate with farmworkers. But it is conjectural to anticipate that access will be denied. More importantly, appellees’ claim depends inextricably upon the attributes of the situs involved. They liken farm labor camps to the company town involved in Marsh v. Alabama, 326 U. S. 501 (1946), in which the First Amendment was held to operate. Yet it is impossible to know whether access will be denied to places fitting appellees’ constitutional claim. We can only hypothesize that such an event will come to pass, and it is only on this basis that the constitutional claim could be adjudicated at this time. An opinion now would be patently advisory; the adjudication of appellees’ challenge to the access provision must therefore await at least such time as appellees can assert an interest in seeking access to particular facilities as well as a palpable basis for believing that access will be refused. Finally, the constitutionality of the allegedly compulsory arbitration provision was also improperly considered by the District Court. That provision specifies that an employer may seek and obtain an injunction “upon the filing of a verified petition showing that his agricultural employees are unlawfully on strike or are unlawfully conducting a boycott, or are unlawfully threatening to strike or boycott, and that the resulting cessation of work or conduct of a boycott will result in the prevention of production or the loss, spoilage, deterioration, or reduction in grade, quality or marketability of an agricultural commodity or commodities for human consumption in commercial quantities.” § 23-1393 (B). If an employer invokes a court’s jurisdiction to issue a temporary restraining order to enjoin a strike, the employer “must as a condition thereto agree to submit the dispute to binding arbitration as the means of settling the unresolved issues.” And if the parties cannot agree on an arbitrator, the court must appoint one. On the record, before us, there is an insufficiently real and concrete dispute with respect to application of this provision. Appellees themselves acknowledge that, assuming an arguably unlawful strike will occur, employers may elect to pursue a range of responses other than seeking an injunction and agreeing to arbitrate. Moreover, appellees have never contested the constitutionality of the arbitration clause. They declare that “[t]he three judge court below on its own motion found the binding arbitration provision of § 1393 (B) viola-tive of substantive due process and the Seventh Amendment.” Brief for Appellees 71 n. 153. Appellees, instead, raised other challenges to the statute’s civil enforcement scheme, which we do not consider on this appeal. See n. 10, supra. It is clear, then, that any ruling on the compulsory arbitration provision would be wholly advisory. Ill Appellants contend that, even assuming any of appellees’ claims are justiciable, the District Court should have abstained from adjudicating those claims until the Arizona courts might authoritatively construe the provisions at issue. We disagree that appellees’ challenge to the statutory election procedures should first be submitted to the Arizona courts, but we think that the District Court should have abstained from considering the constitutionality of the criminal penalty provision and the consumer publicity provision pending review by the state courts. As we have observed, “'[ajbstention... sanctions... escape [from immediate decision] only in narrowly limited “special circumstances.” ’ ” Kusper v. Pontikes, 414 U. S. 51, 54 (1973), quoting Lake Carriers’ Assn. v. MacMullan, 406 U. S. 498, 509 (1972). “The paradigm of the'special circumstances’ that make abstention appropriate is a case where the challenged state statute is susceptible of a construction by the state judiciary that would avoid or modify the necessity of reaching a federal constitutional question.” Kusper v. Pontikes, supra, at 54; see Zwickler v. Koota, 389 U. S. 241, 249 (1967); Harrison v. NAACP, 360 U. S. 167, 176-177 (1959); Railroad Comm’n v. Pullman Co., 312 U. S. 496 (1941). Of course, the abstention doctrine “contemplates that deference to state court adjudication only be made where the issue of state law is uncertain.” Harman v. Forssenius, 380 U. S. 528, 534 (1965). But when the state statute at issue is “fairly subject to an interpretation which will render unnecessary or substantially modify the federal constitutional question,” id., at 535, abstention may be required “in order to avoid unnecessary friction in federal-state relations, interference with important state functions, tentative decisions on questions of state law, and premature constitutional adjudication,” id., at 534. We think that a state-court construction of the provision governing election procedures would not obviate the need for decision of the constitutional issue or materially alter the question to be decided. As we shall discuss, our resolution of the question whether the statutory election procedures are affected with a First Amendment interest at all is dispositive of appellees’ challenge. And insofar as it bears on that matter, the statute is pointedly clear. Accordingly, we perceive no basis for declining to decide appellees’ challenge to the election procedures, notwithstanding the absence of a prior state-court adjudication. We conclude, however, that the District Court should have postponed resolution of appellees’ challenge to the criminal penalty provision. That section provides in pertinent part that “[a]ny person... who violates any provision of [the Act] is guilty of a... misdemeanor.” § 23-1392. Ap-pellees maintain that the penalty provision leaves substantial doubt regarding what activities will elicit criminal sanctions. The District Court so concluded, observing that “[ considering the enormous variety of activities covered by the Act, [the penalty section] is clearly a statutory provision so vague that men of common intelligence can only guess at its meaning.” 449 F. Supp., at 453. The court elaborated: “There is no way for anyone to guess whether criminal provisions will apply to any particular conduct, in advance, and it is clear that the statute is unconstitutionally vague and does not adequately define prohibited conduct and is, therefore, in violation of the due process clause of the Fourteenth Amendment.” Ibid. Appellants, themselves, do not argue that the criminal penalty provision is unambiguous. Indeed, they insist that until the provision is enforced “it is impossible to know what will be considered a 'violatio[n]’ of the Act.” Brief for Appellants 37. Appellants submit that various unfair labor practices, for example, have not been treated as yet as criminal violations. It is possible, however, that the penalty provision might be construed broadly as applying to all sections of the Act that affirmatively proscribe or command courses of conduct. In terms it reaches “[a]ny person... who violates any provision of” the Act. Alternatively, the Arizona courts might conclude that only limited portions of the Act are susceptible of being “violated” and thus narrowly define the reach of the penalty section. In either case, it is evident that the statute is reasonably susceptible of constructions that might undercut or modify appellees’ vagueness attack. It may be that, if construed broadly, the penalty provision would operate in conjunction with substantive provisions of the Act to restrict unduly the pursuit of First Amendment activities. But it is at least evident that an authoritative construction of the penalty provision may significantly alter the constitutional questions requiring resolution. We have noted, of course, that when “extensive adjudications, under the impact of a variety of factual situations, [would be required in order to bring a challenged statute] within the bounds of permissible constitutional certainty,” abstention may be inappropriate. Baggett v. Bullitt, 377 U. S. 360, 378 (1964). But here the Arizona courts may determine in a single proceeding what substantive provisions the penalty provision modifies. In this case, the “uncertain issue of state law [turns] upon a choice between one or several alternative meanings of [the] state statute.” Ibid. Accordingly, we think the Arizona courts should be “afforded a reasonable opportunity to pass upon” the section under review. Harrison v. NAACP, supra, at 176. The District Court should have abstained with respect to appellees’ challenges to the consumer publicity provision as well. Appellees have argued that Arizona’s proscription of misrepresentations by labor organizations in the course of appeals to consumers intolerably inhibits the exercise of their First Amendment right freely to discuss issues concerning the employment of farm laborers and the production of crops. Appellants submit, however, that the statutory ban on untruthful consumer publicity might fairly be construed by an Arizona court as proscribing only misrepresentations made with knowledge of their falsity or in reckless disregard of truth or falsity. As that is the qualification that appellees insist the prohibition of misstatements must include, a construction to that effect would substantially affect the constitutional question presented. It is reasonably arguable that the consumer publicity provision is susceptible of the construction appellants suggest. Section 23-1385 (B) (8) makes it unlawful “[t]o induce or encourage the ultimate consumer of any agricultural product to refrain from purchasing, consuming or using such agricultural product by use of dishonest, untruthful and deceptive publicity.” (Emphasis added.) On its face, the statute does not forbid the propagation of untruths without more. Rather, to be condemnable, consumer publicity must be “dishonest” and “deceptive” as well as untruthful. And the Arizona courts may well conclude that a “dishonest” and “untruthful” statement is one made with knowledge of falsity or in reckless disregard of falsity. To be sure, the consumer publicity provision further provides that “[permissible inducement or encouragement... means truthful, honest and nondeceptive publicity... (Emphasis added.) That phrase may be read to indicate that representations not having all three attributes are prohibited under the Act. But it could be held that the phrase denotes only that “truthful, honest and nondeceptive publicity” is permissible, not that any other publicity is prohibited. When read in conjunction with the prohibitory clause preceding it, the latter phrase thus introduces an ambiguity suitable for state-court resolution. In sum, we think adjudication of appellees’ attack on the statutory limitation on untruthful consumer appeals should await an authoritative interpretation of that limitation by the Arizona courts. We further conclude that the District Court should have abstained from adjudicating appellees’ additional contention that the consumer publicity provision unconstitutionally precludes publicity not directed at the products of employers with whom the protesting labor organization has a primary dispute. We think it is by no means clear that the statute in fact prohibits publicity solely because it is directed at the products of particular employers. As already discussed, § 23-1385 (B) (8) declares it an unfair labor practice to induce or encourage the ultimate consumer of agricultural products to refrain from purchasing products “by the use of dishonest, untruthful and deceptive publicity.” The provision then stipulates: “Permissible inducement or encouragement within the meaning of this section means truthful, honest and non-deceptive publicity which identifies the agricultural product produced by an agricultural employer with whom the labor organization has a primary dispute. Permissible inducement or encouragement does not include publicity directed against any trademark, trade name or generic name which may include agricultural products of another producer or user of such trademark, trade name or generic name.” The section nowhere proscribes publicity directed at products of employers with whom a labor organization is not engaged in a primary dispute. It indicates only that publicity ranging beyond a primary disagreement is not ¡ accorded affirmative statutory protection The Arizona courts might reasonably determine that the language in issue does no more than that and might thus ameliorate appellees’ concerns. Moreover, § 23-1385 (B) (8) might be construed, in light of §23-1385 (C), to prohibit only threatening speech. The latter provision states in pertinent part that ‘‘[t]he expressing of any views, argument, opinion or the making of any statement... or the dissemination of such views whether in written, printed, graphic, visual or auditory form, if such expression contains no threat of reprisal or force or promise of benefit, shall not constitute or be evidence of an unfair labor practice...On its face, § 23-1385 (C) would appear to qualify § 23-1385 (B) (8), as the latter identifies “an unfair labor practice for a labor organization or its agents.” Were the consumer publicity provision interpreted to intercept only those expressions embodying a threat of force, the issue of its constitutional validity would assume a character wholly different from the question posed by appellees’ construction. Thus, we conclude that the District Court erred in entertaining all aspects of appellees’ challenge to the consumer publicity section without the benefit of a construction thereof by the Arizona courts. We are sensitive to appellees’ reluctance to repair to the Arizona courts after extensive litigation in the federal arena. We nevertheless hold that in this case the District Court should not have adjudicated substantial constitutional claims with respect to statutory provisions that are patently ambiguous on their face. IV The merits of appellees’ challenge to the statutory election procedures remain to be considered. Appellees contend, and the District Court concluded, that the delays assertedly attending the statutory election scheme and the technical limitations on who may vote in unit elections severely curtail appellees’ freedom of association. This freedom, it is said, entails the liberty not only to join or sustain a labor union and collectively to express a position to an agricultural employer, but also to create or elect an organization entitled to invoke the statutory provision requiring an employer to bargain collectively with the certified representative of his employees. As we see it, however, these general complaints that the statutory election procedures are ineffective are matters for the Arizona Legislature and not the federal courts. Accepting that the Constitution guarantees workers the right individually or collectively to voice their views to their employers, see Givhan v. Western Line Consolidated School Dist., 439 U. S. 410 (1979); cf. Madison School Dist. v. Wisconsin Employment Relations Comm’n, 429 U. S. 167, 173-175 (1976), the Constitution does not afford such employees the right to compel employers to engage in a dialogue or even to listen. Accordingly, Arizona was not constitutionally obliged to provide a procedure pursuant to which agricultural employees, through a chosen representative, might compel their employers to negotiate. That it has undertaken to do so in an assertedly niggardly fashion, then, presents as a general matter no First Amendment problems. Moreover, the Act does not preclude voluntary recognition of a labor organization by an agricultural employer. Thus, in the event that an employer desires to bargain with a representative chosen by his employees independently of the statutory election procedures, such bargaining may readily occur. The statutory procedures need be pursued only if farm-workers desire to designate exclusive bargaining representatives and to compel their employer to bargain — rights that are conferred by statute rather than the Federal Constitution. Accordingly, at this time, we are unable to discern any First Amendment difficulty with the Arizona statutory election scheme, whether or not the procedures are as fair or efficacious as appellees would like. Reversed and remanded. The complaint asserted that the Act as a whole was invalid because it was pre-empted by the federal labor statutes, imposed an impermissible burden on commerce, denied appellees equal protection, and amounted to a bill of attainder. In addition, various constitutional challenges were made to one or more parts of 15 provisions of the Act. The District Court did not analyze section by section why a case or controversy existed with respect to each of the challenged sections. Rather, from instances of private and official enforcement detailed in a stipulation filed by the parties, the court concluded that the ease was not “hypothetical, abstract, or generalized.” 449 F. Supp. 449, 452 (Ariz. 1978). It did, however, focus specifically on § 23-1392. That provision makes it a crime to violate any other provision of the Act; and although the District Court deemed this section severable from the rest of the Act, it relied heavily on its conclusion that it had jurisdiction to adjudicate the validity of this section to justify its considering the constitutionality of other sections of the Act. See 449 F. Supp., at 454. In proceeding to do so, it ruled that evidence would be considered only in connection with § 23-1389 dealing with the election of bargaining representatives and with respect to §23-1385 (C) limiting union access to employer properties, although evidence was introduced at trial relative to other provisions. The court did not explain the basis for selecting from all of the challenges presented the five provisions on which it passed judgment. Section 23-1389 declares that representatives selected by a secret ballot for the purpose of collective bargaining by the majority of agricultural employees in an appropriate bargaining unit shall be the exclusive representatives of all agricultural employees in such unit for the purpose of collective bargaining. And it requires the Agricultural Employment Relations Board to ascertain the unit appropriate for purposes of collective bargaining. The section further provides that the Board shall investigate any petition alleging facts specified in § 23-1389 indicating that a question of representation exists and schedule an appropriate hearing when the Board has reasonable cause to believe that a question of representation does exist. If the hearing establishes that such a question exists, the Board is directed to order an election by secret ballot and to certify the results thereof. Section 23-1389 details the manner in which an election is to be conducted. The section further provides for procedures by which an employer might challenge a petition for an election. Additionally, § 23-1389 stipulates that no election shall be directed or conducted in any unit within which a valid election has been held in the preceding 12 months. Section 23-1389 also sets down certain eligibility requirements regarding participation in elections conducted thereunder. And it imposes obligations on employers to furnish information to the Board, to be made available to interested unions and employees, concerning bargaining-unit employees qualified to vote. Finally, the section specifies procedures whereby agricultural employees may seek to rescind the representation authority of a union currently representing those employees. The election provision contemplates voting by “agricultural employees,” §23-1389 (A), which is defined in §23-1382 (1) so as to exclude workers having only a brief history of employment with an agricultural employer. Section 23-1385 (B) (8) makes it an unfair labor practice for a labor organization or its agents: “To induce or encourage the ultimate consumer of any agricultural product to refrain from purchasing, consuming or using such agricultural product by the use of dishonest, untruthful and deceptive publicity. Permissible inducement or encouragement within the meaning of this section means truthful, honest and nondeceptive publicity which identifies the agricultural product produced by an agricultural employer with whom the labor organization has a primary dispute. Permissible inducement or encouragement does not include publicity directed against any trademark, trade name or generic name which may include agricultural products of another producer or user of such trademark, trade name or generic name.” Section 23-1392 provides: “Any person who knowingly resists, prevents, impedes or interferes with any member of the board or any of its agents or agencies in the performance of duties pursuant to this article, or who violates any provision of this article is guilty of a class 1 misdemeanor. The provisions of this section shall not apply to any activities carried on outside the state of Arizona.” Section 23-1385 (C) provides in part: “No 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_respond2_1_4
B
What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "financial institution". Your task is to determine what subcategory of business best describes this litigant. William E. OYLER, Plaintiff-Appellant, v. NATIONAL GUARD ASSOCIATION OF the UNITED STATES, et al., Defendants-Appellees. No. 83-1529. United States Court of Appeals, Seventh Circuit. Argued Feb. 9, 1984. Decided Sept. 10, 1984. Fairchild, Senior Circuit Judge, concurred and filed opinion. Larry T. Frantz, Peoria, Ill., for plaintiff-appellant. William R. Kohlhase, Davis & Morgan, Michael J. O’Leary, Asst. U.S. Atty., Peoria, Ill., Fredric D. Tannenbaum, Asst. Atty. Gen., Civil Appeals Div., Chicago, Ill., for defendants-appellees. Before PELL and COFFEY, Circuit Judges, and FAIRCHILD, Senior Circuit Judge. COFFEY, Circuit Judge. On March 2, 1977, the plaintiff, William E. Oyler, filed suit against the Insurance Company of North America in the Circuit Court of Peoria County, Illinois, alleging that certain disability insurance benefits had been wrongly withheld. On April 5, 1979, Oyler amended his complaint, adding defendants Cole, Hamilton and Sandell, along with the National Guard Association of the United States and the National Guard Association of the United States Insurance Trust, alleging that all of the defendants had conspired to defraud him of insurance benefits. As defendants Cole and Hamilton were federal employees, on March 4,1980, the case was removed to the United States District Court for the Central District of Illinois. On February 2, 1982, the defendants Cole and Hamilton filed a motion for summary judgment on the basis of official immunity, running of the statute of limitations, and laches. The defendant Sandell filed a similar motion on February 5, 1982. The district court granted both summary judgment motions and dismissed the complaints against the defendants Cole, Hamilton and Sandell, ruling that all three were immune from suit. The plaintiff filed a motion for reconsideration of the summary judgment on February 8, 1983, which was denied on February 17, 1983. The plaintiff then filed a motion to alter or amend the judgment on February 28, 1983, which was also denied by the district court on March 15, 1983. On March 18, 1983, a notice of appeal was filed with this court. The district court’s grant of summary judgment as to defendants Cole, Hamilton and Sandell is affirmed. On March 4, 1980, plaintiff attempted service upon the National Guard Association of the United States Insurance Trust (“Trust”) by personally serving Major General Francis S. Greenlief as a registered agent of the Trust. On March 5, 1980, the plaintiff attempted to serve the National Guard Association of the United States (“Association”) and/or the Trust by personally delivering a summons and complaint to the Secretary of a Lavern Weber, an agent for the Association. On March 24, 1980, the defendants Association and Trust filed an uncontested motion to dismiss. The district court granted the defendants’ motion to dismiss on September 5, 1980. To gain proper jurisdiction over the defendants Trust and Association, the plaintiff subsequently attempted to serve agents of the Trust and/or Association. Accordingly, on October 3, 1980 and on May 26, 1981, the plaintiff served defendants Edward R. Fry, Richard A. Miller, William J. McCadden, Francis S. Greenlief, Francis J. Higgins and Leo C. Goodrich by certified mail. On July 13, 1981, all of these defendants filed a motion to dismiss arguing that service by certified mail was not proper. The district court granted the motion to dismiss on July 28, 1981, insofar as service of process was quashed for such defendants. We affirm the district court’s dismissal of the action as to the defendants Trust and Association. The appellant essentially raises three main issues on appeal: I. Were the defendants Trust and Association properly served making the district court’s dismissal of the action as to those defendants inappropriate? II. Did the district court properly grant summary judgment to the defendants Cole and Hamilton on the basis of immunity? III. Did the district court properly grant summary judgment to the defendant Sandell on the basis of immunity? For the reasons herein stated, we affirm the district court’s dismissal of the action as to the defendants Trust and Association as well as the district court’s grant of summary judgment to defendants Cole, Hamilton and Sandell. FACTS As indicated in the previous summary of the procedural history, the facts of this case are somewhat convoluted. On September 15, 1973, the plaintiff re-enlisted in the Illinois Air National Guard only to be honorably discharged one year and three months later on December 15, 1974. On that same day, the plaintiff enlisted in the Illinois Army National Guard and was appointed to the position of administrative supply technician, a federal National Guard technician working for the Illinois Army National Guard. While serving in the Army National Guard the plaintiff’s commanding officer was the defendant Ernest Sandell, a captain in the Illinois National Guard. It was part of Captain Sandell’s duties to supervise the plaintiff in his work as an administrative supply technician. Captain San-dell’s supervisor, defendant John F. Hamilton, a colonel in the Illinois National Guard and a federal National Guard technician, was likewise involved in supervising Oy-ler’s activities. Defendant Jackie Cole, a colonel in the Illinois Army National Guard, a federal National Guard technician, was the technician personnel officer for the Illinois Army and Air National Guard having had the responsibility of administering personnel matters involving technician personnel such as the plaintiff. Because of their positions as federal National Guard technicians, both defendants Cole and Hamilton were federal employees under 32 U.S.C. § 709. Defendants Sandell and Hamilton became dissatisfied with the plaintiffs work as an administrative supply technician shortly after his (Oyler’s) appointment to that position. In April of 1975, during a counseling session with the plaintiff regarding his job performance, Oyler suggested that his resignation from his administrative supply technician position would be best for all concerned, and at that time he (Oyler) requested that the resignation papers be prepared. On May 4, 1975, while the plaintiff was in the hospital, the defendants Sandell and Hamilton brought the resignation papers to him for his signature. The plaintiff signed the resignation papers, but requested that defendants Hamilton and Sandell withhold the processing of his resignation papers until he was discharged from the hospital. Although the plaintiff failed to advise either defendant Sandell or Hamilton when he was released from the hospital, he did call the technician personnel office to arrange for sick leave during his convalescence. At that time Oyler spoke with the defendant Cole wherein he confirmed his intention to resign from his position as a technician, but to remain in the Illinois National Guard. Defendant Cole originally rejected the plaintiff’s resignation when it was received in the technician personnel office on May 27, 1975, because it was not in plaintiff’s handwriting, was not dated, and did not specify the effective date of or reason for resignation. The plaintiff thereupon submitted another resignation form which was received by the personnel office on June 3, 1975. On this form, the plaintiff stated in his own handwriting that his reason for resignation was “to seek other full time employment.” The resignation was accomplished on June 3, 1975 with an effective date of May 30, 1975. The plaintiff was advised of his right to apply for a refund of his retirement contributions on June 3, 1975, and was informed that his pay deduction authorization for disability and other insurance coverages were canceled effective May 31, 1975. Furthermore, he was advised of the requirements necessary to convert and continue his insurance programs. Almost a year later, during the month of April, 1976, the National Guard became aware that the plaintiff was seeking disability compensation. At that time, the plaintiff called the technician personnel office and requested information concerning Civil Service Disability Retirement and also requested and received the address of the National Guard Association Trust. The appropriate information and forms for applying for civil service disability retirement were mailed to him. Sometime after April of 1976 but prior to June 9, 1976, the plaintiff filed a claim for disability benefits with the Insurance Company of North America. When the technician personnel office received the claim forms for processing on June 9, 1976, they were forwarded to the plaintiff for completion. The personnel office received Oyler’s completed forms on June 29, 1976 and forwarded them to the Insurance Trust on July 24, 1976. After having been unsuccessful in his efforts to recover disability benefits from the Insurance Trust, on March 2, 1977, the plaintiff filed suit against the Insurance Company of North America in the Circuit Court of Peoria County, Illinois. In his complaint, the plaintiff alleged that the Insurance Company of North America was improperly refusing to pay out the proceeds of the policy. Note that the defendants Cole, Hamilton, or Sandell were not named in the original complaint, nor did that complaint allege any conspiracy. On April 5, 1979, the plaintiff amended his complaint to allege a conspiracy among all of the defendants (including the defendants Trust, Association, Cole, Hamilton and Sandell) to defraud him of his benefits under the terms of his insurance policy with the Insurance Company of North America. In the amended complaint, the plaintiff alleged that the defendants Cole, Hamilton and Sandell procured the plaintiff’s resignation of his administrative supply technician position by means of coercion, duress and pressure while the plaintiff was hospitalized and under medication; prevented the plaintiff’s discharge from the National Guard knowing that he was ineligible for membership because of his physical condition; falsified plaintiff’s military records to indicate that he was present at drills and other functions when he was not; forged plaintiff’s military records to indicate his absence with permission from drills when no excused absence request was made by the plaintiff; and failed to process the plaintiff’s mandatory discharge from the National Guard when they knew he should be discharged immediately. Additionally, in his answers to Cole’s and Hamilton’s interrogatories, the plaintiff alleged that the defendants Cole and Hamilton failed to process him for discharge from the Guard as required by Army regulations and failed to follow the procedures of the Federal Personnel Manual in forcing his resignation from the administrative supply technician position. The defendants in their affidavits in support of their motion for summary judgment asserted that the actions taken by them with regard to the plaintiff were performed within the scope of their official duties and Sandell additionally averred essentially that he acted in good faith. The plaintiff failed to file a response in opposition to the motion for summary judgment and also failed to submit any affidavits contradicting the defendants’ affidavits. SERVICE OF THE DEFENDANTS TRUST AND ASSOCIATION Initially, we hold that the plaintiff’s service on the respective defendants, the Trust and the Association, was defective since, as unincorporated associations, they were not subject to suit under a common name and thus were not subject to service under Federal Rule of Civil Procedure 4(d)(3). Thus, their dismissal from this action was proper. Under Federal Rule 4(d)(3), service may not be made upon an unincorporated association unless such an association “is subject to suit under a common name.” It is clear that the defendant Association is an “unincorporated association” and we accept the defendant’s argument that the defendant Trust is also an “unincorporated association” for the purpose of Federal Rule 4(d)(3). The defendants Trust and Association are not subject to suit under a common name as required by Federal Rule 4(d)(3). Federal Rule of Civil Procedure 17(b) delineates when a party has the capacity to sue or be sued: “The capacity of an individual, other than one acting in a representative capacity, to sue or be sued shall be determined by the law of his domicile. The capacity of a corporation to sue or be sued shall be determined by the law under which it was organized. In all other cases capacity to sue or be sued shall be determined by the law of the state in which the district court is held, except (1) that a partnership or other unincorporated association, which has no such capacity by the law of such state, may sue or be sued in its common name for the purpose of enforcing for or against it a substantive right under the Constitution or laws of the United States____” As it relates to this case, Federal Rule 17(b) provides that an unincorporated association has the capacity to be sued in its own name if such capacity is provided for under state law or if the action is based upon constitutional rights or the laws of the United States. Because the plaintiff has not sought relief under the laws of the United States or the Constitution (because his action sounds in state common law fraud), the 17(b)(1) exception is not applicable, and we must therefore determine whether the defendants Trust and Association have a right to sue or be sued under Illinois law. It is well-settled under Illinois law that an unincorporated association may not sue or be sued in its own name for any remedy at law. In American Fed. of Tech. Eng., Local 144 v. La Jeunesse, 63 Ill.2d 263, 347 N.E.2d 712 (1976), the court held that an unincorporated association is not a juridical person and therefore may not sue in its own name. Accordingly, the defendants Association and Trust, as unincorporated associations, may not sue or be sued in their own names. See also City of Chicago v. Chicago Fire Fighters, 99 Ill.App.3d 583, 54 Ill.Dec. 854, 425 N.E.2d 1071 (1981). Because both the Trust and Association are not subject to suit in their common names under Illinois law, such defendants could not be serviced under Rule 4(d)(3). We also hold that service of the individual defendants, McCadden, Higgins, Fry, Miller, Greenlief and Goodrich, was properly quashed. When the plaintiff first amended his complaint to include allegations of conspiracy to defraud against Hamilton, Cole, Sandell, the Trust and Association, it attempted service on representatives of the Trust and Association; however, these were quashed by the district court, without protest from the plaintiff. The plaintiff then served the defendants listed above who were all trustees of the Trust and Association. He amended only the heading of his complaint to include these same individuals, but the substance of the complaint, including the allegations concerning the conspiracy to defraud, still alleged that only Hamilton, Cole, Sandell, the Trust and Association were involved in the conspiracy to defraud. Further, there was no evidence submitted during the litigation leading to this appeal implicating any of these persons individually. We point out these facts only to show that the plaintiff obviously joined all of these defendants in their pleadings as representatives of the Trust and Association and failed to join them as individuals participating in the alleged conspiracy to defraud. Since we have held that the Association and Trust were not amenable to service and suit in Illinois at the time of this action, attempts to reach the till of these unincorporated associations through the “back door” by joining their representatives must also fail. Thus, we hold that it was proper for the district court to quash service of process against these defendants and dismiss them from the action. IMMUNITY OF COLE AND HAMILTON In claiming that the district court incorrectly granted summary judgment to the defendants Cole and Hamilton, the plaintiff initially argues that the actions complained of were beyond the outer perimeter of their official duties and therefore no immunity arises, and second, that under the qualified immunity test utilized by the Supreme Court in Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), no purpose is served in granting lower echelon officials immunity from civil ae-tions. We find neither of the plaintiffs arguments for reversal convincing. With regard to the plaintiffs first argument, we do not understand how the allegedly wrongful actions on the part of the defendants Cole and Hamilton — failing to expeditiously process the plaintiffs discharge from the Illinois Army National Guard, failing to follow the procedures of the Federal Personnel Manual, failing to properly maintain the plaintiffs service record, and improperly obtaining and processing the plaintiffs resignation papers— could logically be found to be beyond the outer perimeter of their (Cole’s and Hamilton’s) official duties. As noted in the discussion of the facts, the essence of the plaintiff’s complaint centers around the defendants’ processing of military records or resignation papers, and the failure on the part of the defendants to properly discharge the plaintiff from Illinois Army National Guard. As supervisors of the plaintiff, it was the precise duty of the defendants Cole and Hamilton to oversee the resignation or discharge of the plaintiff. Allegations of the defendants’ impropriety in carrying out such tasks are without question within the scope of their official duties. Moreover, in their uncontested affidavits the defendants state that they acted within the scope of their federal employment in their respective positions. Accordingly, we hold that any alleged actions on the part of the defendants Cole and Hamilton that form the basis of this suit were well within the outer perimeters of their official duties. The plaintiff’s second argument is that, at most, only a qualified or “good faith” immunity applies in this case under the Supreme Court’s recent decision in Harlow. We disagree. As the complaint cannot fairly be read to allege the deprivation of rights arising out of the Constitution or any federal statute, but rather sounds in common law fraud, we hold that the defendants Cole and Hamilton possess absolute immunity from the plaintiff’s claim since we have already determined that they were acting within the scope of their duties. Although the plaintiff cites Harlow and Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978), as evidence of the extent to which absolute immunity has eroded under present judicial scrutiny, we find those cases clearly distinguishable from the facts herein. Both Harlow and Butz involved actions against public officials alleging violations of federal constitutional rights. Indeed, in the majority opinion in Harlow, Justice Powell specifically stated that in cases alleging violation of an individual’s constitutional rights, it is the recognition that an action against a public official may be the only redress available to the plaintiff which has prompted a limitation on the traditional absolute immunity doctrine: “In situations of abuse of office, an action for damages may offer the only realistic avenue for vindication of constitutional guarantees____ It is this recognition that has required the denial of absolute immunity to most public officers.” Harlow, 457 U.S. at 814, 102 S.Ct. at 2736 (citations omitted). This distinction was also recognized in Butz where the court stated, when discussing the absolute immunity provided in Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959), that: “Accepting this extension of immunity with respect to state tort claims, however, we are confident that Barr did not purport to protect an official who has not only committed a wrong under local law, but also violated those fundamental principles of fairness embodied in the Constitution.” Butz, 438 U.S. at 495, 98 S.Ct. at 2905 (footnote omitted). Significantly, in this ease, the plaintiff has not alleged that the defendant violated his constitutional or federal statutory rights. Because the present action finds its roots in common law, the absolute immunity doctrine enunciated by the Supreme Court in Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959), applies in this case. In Barr, the Supreme Court determined that the protection of governmental officers from harassment founded upon vindictive or ill-founded damage suits outweigh the interest involved in the protection of the individual citizen against pecuniary damage caused by oppressive actions on the part of such officials. Accordingly, the Court held that absolute immunity applies to federal officials in cases involving common law actions. Our application of absolute immunity to the defendants in this case is undertaken with the same confidence expressed by the Supreme Court-some twenty-five years ago: “It seems to us wholly chimerical to suggest that what hangs in the balance here is the maintenance of high standards of conduct among those in the public service. To be sure, as with any rule of law which attempts to reconcile fundamentally antagonistic social policies, there may be occasional instances of actual injustice which will go unredressed, but we think that price a necessary one to pay for the greater good. And there are of course other sanctions than civil tort suits available to deter the executive official who may be prone to exercise his functions in an unworthy and irresponsible manner.” Id. at 576, 79 S.Ct. at 1342. Although we recognize that one avenue of redress is being closed in applying the absolute imndu-nity doctrine in cases based upon common law, we note that such immunity does not necessarily protect a public official where the act committed is an especially grievous one, because such conduct may very well be found to be beyond the outer perimeter of his or her official duties. The plaintiff also emphasizes that the defendants Cole and Hamilton are only “lower echelon” officials with no “broad policy-making powers or authority” and thus should not come under the veil of absolute immunity protection in this action. This distinction was clearly rejected by the Supreme Court in Barr: “The privilege is not a badge or emolument of exalted office, but an expression of a policy designed to aid in the effective functioning of government. The complexities and magnitude of governmental activity have become so great that there must of necessity be a delegation and redelegation of authority as to many functions, and we cannot say that these functions become less important simply because they are exercised by officers of lower rank in the executive heir-archy. “To be sure, the occasions upon which the acts of the head of an executive department will be protected by the privilege are doubtless far broader than in the case of an officer with less sweeping functions. But that is because the higher the post, the broader the range of responsibilities and duties, and the wider the scope of discretion, it entails. It is not the title of his office but the duties with which the particular officer sought to be made to respond in damages is entrusted — the relation of the act complained of to ‘matters committed by law to his control or supervision,’ Spalding v. Vilas, [161 U.S. 483, 498, 16 S.Ct. 631, 637, 40 L.Ed. 780 (1896)] — which must provide the guide in delineating the scope of the rule which clothes the official acts of the executive officer with immunity from civil defamation suits.” Id. 360 U.S. at 572-74, 79 S.Ct. at 1340-41 (footnote omitted). So also in this case, we do not find the rank of the public official to be the controlling mark. Rather, we recognize that the breadth of the immunity afforded depends on the scope of the duties entrusted to the official in question. In this case, the record clearly reflects that defendants Cole and Hamilton were entrusted with the duty of supervision over the plaintiff; indeed it is just this supervision, or at least the plaintiff’s allegation of their improper use of it, which is the basis of this lawsuit. Since the actions forming the basis of this lawsuit patently fall within the scope of the defendants’ duties, the absolute immunity afforded by Barr clearly applies. Our position that the qualified immunity recognized in Harlow and Butz applies only to actions alleging a violation of the plaintiff’s statutory or constitutional rights underlies our holding that the traditional absolute immunity recognized by the Supreme Court in Barr continues to apply in actions grounded in common law, such as the present suit against the defendants Hamilton and Cole. Accordingly, we affirm the district court’s grant of summary judgment for defendants Cole and Hamilton. IMMUNITY OF SANDELL The plaintiff argues, without citing authority, that even if immunity is extended to Cole and Hamilton as federal officials, such immunity may not be applied to San-dell since, as the plaintiff asserts, “the record is devoid of any evidence giving the defendant such status.” That summation is precisely the problem in determining Sandell’s liability. The plaintiff stated in his complaint that Cole, Hamilton and San-dell were members of the United States National Guard. In their motion in support of their summary judgment, Cole and Hamilton pleaded that they were immune from liability because they were federal employees. Sandell’s motion incorporated all of the arguments presented by Hamilton and Cole. The plaintiff, for what reasons we are unable to discern, failed to file a motion in opposition to the summary judgment motion; thus summary judgment was entered against the plaintiff in favor of all three defendants. In this court’s review of the record, in an attempt to solve the many questions left unanswered by the parties’ briefs, it became apparent that the district court judge may have granted summary judgment for Sandell and the other defendants mistakenly believing each one of them to be federal employees. Ten months later, when the plaintiff belatedly filed affidavits in support of his motion to reconsider the district court’s ruling, he failed to mention to the court that Sandell was not a federal employee. This is apparent from the district court’s answer to plaintiff’s motion where it stated that it would not reconsider the judgment since plaintiff had not introduced any new evidence that would change the “official immunity of federal officers in the performance of their duties.” Although the plaintiff may not be exactly sure which governmental agency, state or federal, employed the defendant Sandell, the Attorney General of Illinois admits in its brief to this court that Sandell was in fact a state employee. It is from this point that we proceed. Initially, it should be noted that this court has jurisdiction over this common law claim against a state employee since this action was removed from state court pursuant to 28 U.S.C. § 1442(a)(1), giving this court ancillary jurisdiction over the claim against Sandell. See, e.g., IMFC Professional, Etc. v. Latin Am. Home Health, 676 F.2d 152, 158-59 (5th Cir.1982). Since this is a common law action against a state official, this court is reluctant to accept Sandell’s invitation to extend the absolute immunity rule of Barr v. Matteo to cover common law claims against state officials, especially where we have been unable to discover nor have we been presented with any case extending such immunity, while the state of Illinois in fact provides its own immunity standards for its state officials. Since the claim against Sandell rests upon the ancillary jurisdiction of this court, we refuse to expand the federal doctrine of immunity to cover Illinois state officials. Any other conclusion would obviously constitute an unwarranted interference by this court with the substantive law of Illinois. The scope of immunity for state officials in Illinois is not as broad as it is for federal officials under the Barr decision. Illinois law provides two avenues of immunity. First, if the action is against the state or could subject the state to liability, then the suit is deemed to be one against the state wherein exclusive jurisdiction to hear the claim rests with the Illinois Court of Claims, Ill.Rev.Stat., ch. 37, § 439.8 (1982); see e.g., Ritchey v. Maksin, 49 Ill.App.3d 974, 7 Ill.Dec. 842, 365 N.E.2d 127 (1977). Immunity is also provided for state officials who are being sued personally for discretionary acts taken within the scope of their duty. See, e.g., Watson v. St. Annes Hospital, 68 Ill.App.3d 1048, 25 Ill.Dec. 411, 386 N.E.2d 885 (1979). However, we do not reach the immunity issue since a review of the record demonstrates that the evidence fails to substantiate any claim of conspiracy to defraud the plaintiff. The district court indirectly touched upon this issue when it stated that the defendants’ actions were not beyond the scope of their authority or duties. It is within this court’s power to examine the record and affirm the district court on other grounds when we determine that the grant of summary judgment was proper. See e.g., Winter v. Local Union No. 639, 569 F.2d 146, 151 (D.C.Cir.1977). While evidence in the record may reflect that the defendants may have been negligent in not timely filing the plaintiff’s discharge papers, their actions or lack thereof fall far short of supporting a theory of conspiracy to defraud. The plaintiff, in his complaint and the affidavits submitted in his motion to reconsider summary judgment, attempts to establish that a conspiracy existed among all of the defendants to force him to resign and to defraud him of his benefits. The record, however, fails to support this conclusion. The record discloses that the plaintiff’s continued employment as an administrative supply technician was conditioned upon his performance during a six-month probationary period of employment. During this six-month period his supervisors noted, and a co-worker’s affidavit produced by the plaintiff demonstrates, that he was having difficulty keeping up with his workload. The defendants claimed it was Oyler who suggested that he resign. Oyler, however, alleged that his resignation was procured by coercion and duress while he was confined in the hospital in early May of 1975. The evidence discloses that a resignation form was signed by the plaintiff in the hospital; however, it was not processed, pursuant to the plaintiff’s request, until his discharge from this hospital. It was after the plaintiff was discharged from the hospital that the form was reviewed for processing and found to be incomplete. On June 3, 1975, the Guard contacted him at his home and requested that he sign another form. He went to the National Guard auxiliary post and filled out and signed a second resignation form. The lack of any other evidence in the record supporting his theory of forced resignation along with the plaintiff’s actions in signing a second resignation form demonstrate an absence of coercion and duress. The plaintiff also apparently asserts that at the time of his resignation it was San-dell’s and the other defendants’ responsibility to discharge him since, as a result of his hospital stay, they knew he was suffering from arthritis and was unfit, and thus ineligible, to serve in the Guard as a reserve. Sandell, however, stated in his affidavit that the plaintiff expressed a desire to remain in the Guard as a reserve even though he would no longer be a full-time employee. The plaintiff’s actions support this contention. Even though his resignation from employment took effect on May 31, 1975, he was present at the June meeting and went so far as to request a leave of absence for the summer training seminar, which was subsequently denied. However, since the defendants were aware of his medical condition and his continued pattern of absences from monthly meetings after the summer of 1975, the plaintiff continues to argue that they were required at this point to process his discharge pursuant to Guard regulations and by not discharging him after his continued absences, the defendants intended to defraud him of the benefits. When the plaintiff requested the disability form for filing with the insurance company in the spring of 1976 it recited that, while he was no longer an employee, he was still a member of the Guard as he had not as of that time applied for a discharge. It was sometime after this period, in 1977, that the initial legal proceedings were commenced against the Insurance Company of North America to collect the benefits. The record is barren of any evidence that the plaintiff contacted the Guard during this period to inform them that he desired a discharge for medical reasons. It is apparent that neither side took the initiative to process the appropriate paperwork. Although we do not reach the issue of immunity under Illinois law, we do note that if this was in fact the Guard’s responsibility it might have conceivably constituted negligence on its part and the Illinois rules on immunity might not have protected Sandell from a possible negligence claim. See, e.g., Watson v. St. Annes Hospital, 68 Ill.App.3d 1048, 25 Ill. Dec. 411, 386 N.E.2d 885 (1979) (stating that in Illinois, immunity for state officials is not available where they negligently performed their ministerial duties). The record, however, falls far short of supporting the contention that a legal question exists as to whether the defendants conspired to defraud the plaintiff of his benefits. The plaintiff pleaded and merely attempted to prove a conspiracy to defraud. We hold that the record demonstrates only vague allegations that fail to rise to the level required to withstand a motion for summary judgment when conspiracy to defraud is alleged. Thus, the district court’s granting of the summary judgment motion was proper. . The defendant “Trust” refers to the National Guard Association of the United States Insurance Trust, and the defendant "Association” refers to the National Guard Association of the United States. . Defendants Cole and Hamilton additionally argue that the district court’s grant of summary judgment was proper based on the applicable statute of limitations and laches. Because we affirm the district court’s grant of summary judgment as to these defendants on federal immunity grounds, we need not address the statute of limitation or laches issues. . The Insurance Policy with the Insurance Company of North America provided in part: "If a covered individual, while insured for coverage B is unable to meet the physical requirements necessary to retain his status as a Technician in the National Guard, and as a result thereof, he is separated from both his employment as a technician and... his membership in The Army National Guard or Air National Guard, the company will pay.” (emphasis added). The gist of plaintiff's allegations against Cole, Hamilton and Sandell is that by wrongfully preventing his discharge from the National Guard by not timely filing his discharge papers they thereby precluded him from recovering under the policy because permanent separation from membership in the National Guard was a condition precedent to collection. . Note that the plaintiff admits in his brief to this court that both the defendant Association and the defendant Trust are unincorporated associations. Since this issue is not in dispute and there is no evidence in the record to the contrary, we have accepted this classification as correct for purposes of this opinion. . As pointed out at oral argument, effective January 1, 1984, voluntary unincorporated associations are subject to suit in Illinois. Ill.Rev.Stat. ch. 110, § 2-209.1 (1984). This change does not avail the plaintiff, however, since it was obviously not in effect at the time service was attempted on the defendants Trust and Association. . Since the Trustees were served by mail, the National Guard Association of the United States Insurance Trust and the National Guard Association of the United States argue that the local district court "standing order on service” rule which provides, "[t]he Marshal may serve a summons or other civil process upon all persons within the purview of Rule 4(d)(1) and (3) of the Federal Rules of Civil Procedure by certified or registered mail” is inconsistent with Fed.R.Civ.P. 4(d)(1), which states that service shall be made “[u]pon an individual... by delivering a copy of the summons and of the complaint to him personally or by leaving copies thereof at his dwelling house____” Fed.R.Civ.P. 83 allows district courts to make their own rules governing the civil practice in' their courts, so long as the local rules are "not inconsistent with these [Federal] rdles." (Explanation added). Because we held that the service upon the individual Trustees was properly quashed by the district court, we will not decide at this time whether this local rule is valid. However, we do harbor doubts as to the local rule’s viability in light of Fed.R.Civ.P. 4(d)(1) which requires that service of the summons and complaint be made in person. . Plaintiff has also cited Lawrence v. Acree, 665 F.2d 1319 (D.C.Cir.1981), in support of the proposition that the test of absolute immunity depends upon the particular conduct and circumstances giving rise to the claim of liability. It should be noted, however, that the action involved in Lawrence was based specifically upon a federal tort action provided for in 42 U.S.C. § 1985(1). Indeed, the court noted in a footnote that the established dichotomy between Constitutional and common law actions remains a valid one, and that the non-constitutional nature of the action involved is still relevant in determining whether absolute immunity exists. Id. at 1327 n. 12. . Assuming arguendo that only qualified immunity applied, we are confident the defendants would still be entitled to summary judgment based on their uncontested affidavits which demonstrate that they did not violate clearly established statutory or constitutional rights of which a reasonable person would have known. See Harlow, 457 U.S. at 818, 102 S.Ct. at 2738, for discussion of the qualified immunity test. . Sandell asserts that the Eleventh Amendment protects him from suit in federal court. The Eleventh Amendment would prevent this court from exercising jurisdiction if Sandell was a nominal party while the state of Illinois was the real party in interest. See Ford Motor Co. v. Dept. of Treasury, 323 U.S. 459, 65 S.Ct. 347, 89 L.Ed. 389 (1945). This would Question: This question concerns the second listed respondent. 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:
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". MORROW v. TILLINGHAST, Commissioner of Immigration. Circuit Court of Appeals, First Circuit. October 17, 1929. No. 2352. James H. Kenney, of Boston, Mass., for appellant. John W. Sehenek, Asst. U. S. Atty., of Boston, Mass. (Frederick H. Tarr, U. S. Atty., of Boston, Mass., on the brief), for appellee. Before BINGHAM, ANDERSON, and WILSON, Circuit Judges. PER CURIAM. In the District Court for Massachusetts the appellant’s petition for a writ of habeas corpus was denied for want of jurisdiction. The immigration authorities found that at the time of her entry into the United States the appellant was mentally deficient; that her mental impairment was such as then to render her liable to become a public charge; and ordered her deported. There was substantial evidence to warrant these findings. They are therefore final.. Appeal dismissed. 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_oththres
A
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the trial court level. These issues are only considered to be present if the court of appeals is reviewing whether or not the litigants should properly have been allowed to get a trial court decision on the merits. That is, the issue is whether or not the issue crossed properly the threshhold to get on the district court agenda. The issue is: "Did the court refuse to rule on the merits of the appeal because of a threshhold issue other than lack of jurisdiction, standing, mootness, failure to state a claim, exhaustion, timeliness, immunity, frivolousness, or nonjusticiable political question?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". CUMMINGS v. MOORE. No. 4476. United States Court of Appeals Tenth. Circuit. Feb. 4, 1953. Rehearing Denied March 20, 1953. Milton W. Hardy, Tulsa, Okl. (Hardy & Hardy, Tulsa, Okl., were with him on the brief), for appellant. Jack N. Hays, Tulsa, Okl. (G. Ellis Gable and Charles P. Gotwals, Jr., Tulsa, Okl., were with him on the brief), for ap-pellee. Before PHILLIPS, Chief Judge, and BRATTON and MURRAH, Circuit Judges. BRATTON, Circuit Judge. This was an action instituted in the United States Court for Northern Oklahoma by W. D. Moore against William G. Cummings for a declaratory judgment determining and adjudicating that plaintiff was not infringing Letters Patent No. 2,496,381, issued to defendant, and relating to a brush for the application of tool joint dressing in oil field drilling operations. It was alleged in the complaint that both parties to the action were citizens of Oklahoma, and that the cause of action was one arising under the laws of the United States, namely 28 U.S.C. §§ 1338, 2201. It was further alleged that defendant claimed to be the owner of the patent; that he asserted infringement on the part of plaintiff; that plaintiff — not defendant — was the inventor of the brush covered by the patent; and that plaintiff was the equitable owner of the patent and therefore could not be guilty of infringing it. And it was further alleged that defendant had been an employee of plaintiff; that defendant’s duties as such employee were to sell and promote the sale of products of W. D. Moore Company in the oil field business; that in accordance with his duties, defendant called to the attention of plaintiff the need for a brush with which to apply tool joint dressing in drilling operations; that thereupon plaintiff developed and worked out a brush devised for such purpose; that shortly after developing such brush, plaintiff began its manufacture; that it was advertised and sold under the name of W. D. Moore Company, defendant actively engaging in the sale thereof; that defendant secretly and in derogation of his duties as employee of plaintiff applied for a patent on the brush in his name; that the application resulted in the issuance of the patent in suit; that defendant had communicated with customers of plaintiff and W. D. Moore Company stating that he was the inventor and owner of the patent and that plaintiff was infringing it; that customers of plaintiff and W. D. Moore Company had become confused by such statements; that in reliance upon such statements, a number of such customers had stopped ordering such brushes from plaintiff and W. D. Moore Company; that the confusion and loss of sales had caused damage to plaintiff for which he had no adequate remedy at law; and that a controversy existed between the parties in respect to defendant’s claim of infringement. The prayer was that plaintiff be declared and decreed to be the lawful owner of the patent; that plaintiff be declared not guilty of infringing the patent; that defendant be declared and decreed to have no right in the patent; that defendant be required to convey and assign the patent to plaintiff; that defendant be enjoined from interfering with plaintiff’s production and sale of the brush; that defendant be further enjoined from manufacturing, producing, selling, and distributing the brush; and that defendant be required to account to plaintiff for profits derived from the sale of the brush. Defendant answered, admitting citizenship of the parties as alleged in the complaint; admitting issuance of the patent and his assertion of infringement on the part of plaintiff; pleading that all other matters and allegations contained in the complaint were compromised and settled by written agreement of the parties, a copy of the agreement being attached to the answer; pleading that there was another action between the parties arising out of the same subject matter pending in the state court and that precedence in the trial of the two cases should be accorded the state court; and pleading that the court was without jurisdiction of the alleged cause of action set forth in the complaint and of the parties to the action. The court found that the defendant claimed to be the sole inventor of the brush; that he had charged plaintiff with the infringement of the patent; and that defendant was not the sole inventor of the brush referred to in the patent. The court concluded that the action was one for a declaratory judgment under the patent laws of the United States; that the court had' jurisdiction of the subject matter of the action and of the parties thereto; that since defendant was not the sole inventor of the brush, the patent was void and conferred no rights; and that an invalid patent may not be infringed. Judgment was entered accordingly, and defendant appealed. For convenience, continued reference will be made to the parties as plaintiff and defendant, respectively. The jurisdiction of the trial court of the subject matter of the action is challenged. It is argued that a complaint alleging breach of confidential relation in patent matters, without alleging diversity of citizenship and the requisite amount in controversy, fails to state a cause of action of which a United States Court has jurisdiction under the patent laws or under the Declaratory Judgment Act. In the absence of diversity of citizenship with the requisite amount in controversy, a United States Court does not have jurisdiction under the patent laws of an action in which the gravamen of the claim pleaded in the complaint is that a confidential relation existed between plaintiff and defendant; that in wrongful disregard of the relation defendant obtained a patent upon the invention of plaintiff; that defendant is trustee ex maleficio for plaintiff in respect to the ownership of the patent; and that defendant should be required to deliver o to plaintiff an assignment of such patent. The general equitable right of plaintiff in an action solely and exclusively of that nature is independent of the patent laws. Becher v. Contoure Laboratories, Inc., 279 U.S. 388, 49 S.Ct. 356, 73 L.Ed. 527; Eckert v. Braun, 7 Cir., 155 F.2d 517. Defendant places strong reliance upon that general principle to defeat jurisdiction of the court; but for reasons presently apparent, it has no application here. It is essential to the validity of a patent that it be issued upon the application of the one who is the original inventor. A patent issued upon the application of one who is not the original inventor is unauthorized by law, is void, and does not confer any right or title upon the patentee. Atlantic Works v. Brady, 107 U.S. 192, 2 S.Ct. 225, 27 L.Ed. 438; Kennedy v. Hazelton, 128 U.S. 667, 9 S.Ct. 202, 32 L.Ed. 576. And an invalid patent cannot be infringed. M. Swift & Sons v. W. H. Coe Manufacturing Co., 1 Cir., 102 F.2d 391; Cridlebaugh v. Rudolph, 3 Cir., 131 F.2d 795, certiorari denied, 318 U.S. 799, 63 S.Ct. 855, 87 L.Ed. 1147; International Carbonic Engineering Co. v. Natural Carbonic Products, D.C., 57 F.Supp. 248, affirmed, 9 Cir., 158 F.2d 285; Miehle Printing Press 6 Manufacturing Co. v. Publication Corp., 7 Cir., 166 F.2d 615. In the course of pre-trial conferences and at the beginning of the trial, plaintiff effectively abandoned the allegations of his complaint concerning a confidential relation between the parties, concerning a breach of such relation on the part of defendant in seeking and obtaining the patent, concerning plaintiff’s equitable ownership of the patent and his right to an assignment of it, and concerning the liability of defendant in damages. By statements too plain for misunderstanding, plaintiff made it clear that he merely sought a declaratory judgment of non-infringement of the patent for the reason that defendant was not the original inventor of the brush and therefore the patent could not be infringed, together with injunctive relief restraining defendant from continued injury to the business of plaintiff by assertions of ownership of the patent and its infringement. The allegations not abandoned and remaining in the complaint that the patent issued to defendant was void and not capable of being infringed for the reason that defendant was not the original inventor; that defendant wrongfully asserted infringement on the part of plaintiff; and that wrongful assertion of infringement made to customers and prospective customers of plaintiff had injured and was continuing to injure the business of plaintiff and of W. D. Moore Company with resulting damage, stated a justiciable cause of action arising under the patent laws of the United States for which the court was clothed with jurisdiction to grant appropriate relief under the Declaratory Judgment Act, even though there was a lack of diversity of citizenship. Grip Nut Co. v. Sharp, 7 Cir., 124 F.2d 814; Aralac, Inc. v. Hat Corporation of America, 3 Cir., 166 F.2d 286; Hook v. Hook & Ackerman, 3 Cir., 187 F.2d 52. The sufficiency of the evidence to support the finding of the trial court that defendant was not the original inventor of the brush is challenged. The grant of letters -patent raised a prima facie presumption that defendant was the inventor of the brush, and the burden rested upon plaintiff to show otherwise by evidence which was clear, strong, and convincing. It would not serve any useful purpose to detail the evidence at .length. It is enough to say that a painstaking review of the record leaves little room for doubt that the evidence adduced upon the trial met in full measure the exacting requirements in a case of this kind. Certain settlement proceedings are relied upon as constituting a recognition of rights in the defendant to the manufacture and sale of the brush prior and paramount to any rights of plaintiff. Four proposed drafts of an agreement of settlement were prepared by one or the other of the attorneys then representing the parties, respectively, but the authorship or source of each document as distinguished from the others is not entirely clear. Three of the proposed drafts were not executed by either party. The fourth was signed by both of them and it became effective. The attorney who then represented defendant testified that in the negotiations had in connection with the preparation of the several drafts of agreement, the brush was discussed; that it was the understanding that in return for the release of certain claims being asserted by defendant, plaintiff released any interest he had in the brush; and that in the absence of such release on the part of the plaintiff, defendant would not have executed the agreement. The attorney representing plaintiff testified differently. The agreement signed by the parties did not contain any provision recognizing any right of defendant in the manufacture and sale of the brush which was prior and paramount to the right of plaintiff. It did not contain any provision subordinating, releasing, surrendering, or extinguishing any right of plaintiff in the manufacture and sale of the brush. The instrument will be searched in vain for any provision of that kind. The contention that the settlement proceedings constituted a recognition of rights in defendant superior to those of plaintiff relating to the manufacture and sale of the brush finds no support in the record. Defendant seeks to invoke the doctrine of estoppel. He asserts that previous litigation between the parties estops plaintiff from attacking the validity of the patent. In its answer, defendant pleaded that a certain case was pending in the state court; that it was instituted prior to the filing of this action; and that'precedence in the trial of the two cases should be accorded the state court. But estoppel was not pleaded.* The answer was completely silent in respect to such an issue. Estoppel is an affirmative defense which must be pleaded. And if not pleaded, it is waived. Zeligson v. Hartmen-Blair, Inc., 10 Cir., 135 F.2d 874; Bowles v. Capitol Packing Co., 10 Cir., 143 F.2d 87; Tornello v. Deligiannis Brothers, 7 Cir., 180 F.2d 553. Other contentions advanced by defendant have been examined, and we think they are without merit. The judgment is affirmed. Question: Did the court refuse to rule on the merits of the appeal because of a threshhold issue other than lack of jurisdiction, standing, mootness, failure to state a claim, exhaustion, timeliness, immunity, frivolousness, or nonjusticiable political question? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_genresp2
I
What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the second listed respondent. If there are more than two respondents and at least one of the additional respondents has a different general category from the first respondent, then consider the first respondent with a different general category to be the second respondent. UNITED STATES of America v. Arminio SCALEGGERI et al., Appellants. SAME v. Giovanni MAGLIO et al., Appellants. SAME v. Fortunato DE GREGORI et al., Appellants. SAME v. Ottavio MAURI et al., Appellants. SAME v. Carlo BONATI et al., Appellants. SAME v. Romano TOMICICH et al., Appellants. Nos. 7813-7817 and 7849. Circuit Court of Appeals, Third Circuit. Argued Dec. 19, 1941. Decided April 14, 1942. Homer L. Loomis, of New York City, for all appellants. Paul W. Knox, of Philadelphia, Pa., on the brief, for appellants in No. 7849. William C. Gottshalk, of Camden, N. J., on the brief, for appellants in Nos. 7813-7817. Thorn Lord, of Trenton, N. J. (Charles M. Phillips, U. S. Atty., of Trenton, N. J., on the brief), for appellee in Nos. 7813-7817. J. Barton Rettew, Jr., of Philadelphia Pa. (Gerald A. Gleeson, U. S. Atty., of Philadelphia, Pa., on the brief), for appellee in No. 7849. Before BIGGS, MARIS, and JONES, Circuit Judges. PER CURIAM. All of the questions involved in these appeals have been fully discussed and decided by the Circuit Court of Appeals for the Fifth Circuit in Marchese v. United States, 5 Cir., 1942, 126 F.2d 671. We find ourselves in entire agreement with the reasoning of the court in that case and with the conclusions there reached. The same conclusions upon substantially similar facts were reached by the Circuit Court of Appeals for the Fourth Circuit in Bersio v. United States, 4 Cir., 1941, 124 F.2d 310. The judgments here appealed from are affirmed upon the authority of those cases. 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_opinstat
B
What follows is an opinion from a United States Court of Appeals. Your task is to identify whether the opinion writter is identified in the opinion or whether the opinion was per curiam. Ferd Walter GERWULF, Appellant, v. UNITED STATES of America. No. 16275. United States Court of Appeals Eighth Circuit. June 30, 1959. Ferd Walter Gerwulf, pro se. Roy L. Stephenson, U. S. Atty., Des Moines, Iowa, for appellee. PER CURIAM. Motion of appellee to docket and dismiss appeal sustained and appeal from District Court docketed and dismissed. Question: Is the opinion writer identified in the opinion, or was the opinion per curiam? A. Signed, with reasons B. Per curiam, with reasons C. Not ascertained Answer:
songer_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. George E. PENLAND, Jr., et al., Plaintiffs, Vernon Ward, Plaintiff-Appellant, v. WARREN COUNTY JAIL; Billy Delaney, in his official capacity as Sheriff of Warren County, Tennessee; and H.T. Pelham, in his official capacity as County Executive of Warren County, Tennessee, Defendants-Appellees. No. 85-5439. United States Court of Appeals, Sixth Circuit. Argued April 15, 1986. Decided August 1, 1986. David Kozlowski (argued), Legal Services of South Central Tennessee, Inc., Tullahoma, Tenn., for plaintiff-appellant. Robert W. Boyd, Jr. (argued), McMinnville, Tenn., for defendants-appellees. Before LIVELY, Chief Judge, MERRITT and JONES, Circuit Judges. MERRITT, Circuit Judge. Plaintiffs appeal the District Court’s order denying certification of their proposed class action and the magistrate’s adverse ruling on two substantive issues in their prisoner civil rights action over conditions in a small county jail on the Cumberland plateau in Tennessee. Plaintiffs George Penland and Jimmy Earls filed this action pro se while serving time at the Warren County Jail in Tennessee. Later, able counsel filed an amended complaint in their action, stating a claim under 42 U.S.C. § 1983 (1982) and addressing eight issues: prisoner idleness, health care, mail, discipline, fire safety, food, access to courts, and visitation. The plaintiffs also sought, under Fed.R.Civ.P. 23(b)(2), certification of a class composed of all present and future prisoners at the Warren County Jail (and a subclass composed of all pretrial detainees held at the jail). District Judge Taylor denied plaintiffs' motion for class certification. The parties consented, under 28 U.S.C. § 636(c)(1) (1982), to have the action heard by a magistrate. Penland and Earls were released from jail before their case was tried, but plaintiff Vernon Ward then intervened. The magistrate ruled in plaintiffs’ favor on all substantive issues except prisoners’ access to courts and their visitation conditions. Plaintiffs appealed to the District Court, under 28 U.S.C. § 636(c)(4), and Judge Hull affirmed the magistrate’s order. The defendants did not appeal the District Court’s order, and their counsel states that they are taking measures to comply with the magistrate’s opinion. Plaintiffs wished to appeal, but, because the parties had agreed that the magistrate should try the case and that appeal of right would be to the District Court under 28 U.S.C. § 636(c)(1) & (4), plaintiffs could not appeal to the Court of Appeals as of right. Rather, they moved the Sixth Circuit for leave to appeal under 28 U.S.C. § 636(c)(5). The Court heard the matter en banc, and Judge Contie writing for the Court granted plaintiffs’ motion for leave to appeal on questions of class certification, access to the courts, and prisoner visitation rights. Pen-land v. Warren County Jail, 759 F.2d 524 (6th Cir.1985) {en banc). Judge Contie’s opinion holds that the two substantive issues were “substantial and important question^] of law that ha[d] not directly been addressed by this court,” 759 F.2d at 531, but he stated no holding on any of the issues. This appeal followed. On plaintiffs’ motion to certify the proposed class action, the District Court found that all the requirements of Fed.R.Civ.P. 23(a) were met: (1) the members of the proposed class are so numerous that joinder would be impracticable, (2) questions of law or fact are common to the proposed class, (3) the proposed named representatives’ claims would be typical of the claims of class members generally, and (4) the named representatives, and their counsel, would fairly and adequately protect the interests of the class. Nevertheless, Judge Taylor denied certification on grounds that certifying a class action was “neither necessary to protect the interests of the desired class, nor is it a superior method for providing the relief asked for in this type of lawsuit.” The Judge held that any declaratory or injunctive relief ordered in a non-class-action suit would “likely inure to the benefit of other similarly situated individuals,” so there was no need for the action to go forward as a class action. (Quoting Inmates, Washington City Jail v. England, 516 F.Supp. 132 (E.D.Tenn. 1980)). Despite Judge Taylor’s denial of class certification, this suit has been treated as a class action almost from its inception. Judge Contie, speaking for our en banc Court, criticized the denial of class certification: The “superior method” criterion has been held relevant, however, only to class actions sought to be certified under F.R. C.P. 23(b)(3). Moreover, this court has specifically held that notice to class members is not required in all F.R.C.P. 23(b)(2) class actions, although notice may be given in a particular case under F.R.C.P. 23(d)(2) if any of the interests listed therein merit protection. Thus, there exists a substantial likelihood that the class certification issue was decided on a ground inconsistent with a decision of this court. Whether the district court and the magistrate actually failed to follow precedent is a question that we leave to the panel assigned to hear this case. 759 F.2d at 531 (emphasis added, citations omitted). Since all the named plaintiffs in this action have been released from jail, under normal procedure we must either dismiss the action as moot or certify it as a class action. We agree with the en banc Court’s criticism of the procedure followed below and we reverse the District Court’s refusal to certify this suit as a class action under Fed.R.Civ.P. 23(b)(2). See also Johnson v. City of Opelousa, 658 F.2d 1065, 1069-70 (5th Cir.1981). Moving to the substantive points of this appeal, plaintiffs argue that conditions in the Warren County Jail concerning prisoners’ visitation and prisoners’ access to courts or legal representation violate the first amendment rights of the prisoners and of their visitors. This jail is located in a rural Tennessee county, and we note that measures that are achievable in larger institutions may not be reasonable in the smallest of local jails. The first amendment, as construed, sets up a balancing test in these situations and requires an examination of reasonable alternatives available. See Bounds v. Smith, 430 U.S. 817, 830, 97 S.Ct. 1491, 1499, 52 L.Ed.2d 72 (1977) (held, in prisoner’s right of access to courts suit, that the first amendment is satisfied if the goal of meaningful access is achieved by any of the alternative means available); accord, Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 581, 100 S.Ct. 2814, 2829-30, 65 L.Ed.2d 973 (1980) (Justice Burger, in a plurality opinion, exhorts trial judge to consider reasonable alternatives to barring press from criminal trial). The record is completely lacking in evidence concerning alternative methods of access to courts and visitation. The record lacks complete information detailing present jail conditions in relation to prisoners’ access to courts, to legal representation, and to legal resource material and conditions concerning prisoners’ visitation rights and facilities. Therefore, we remand this matter to the District Court for the court to assess present jail conditions relative to plaintiffs’ claims in comparison with reasonable alternatives. . We are informed by counsel that plaintiff Ward was released from the jail while the matter was still pending, and that the District Court informed defendants that it would not entertain any motions to dismiss on mootness 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_r_nonp
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 "groups and associations". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL, LOCAL 823, Respondent. No. 5092. United States Court of Appeals Tenth Circuit. Nov. 12, 1955. Franklin C. Milliken, Washington, D. C. (Theophil C. Kammholz, Gen. Counsel, Chicago, Ill., David P. Findling, Associate General Counsel, Marcel MalletPrevost, Asst. Gen. Counsel, and Elizabeth W. Weston, Washington, D. C., were with him on the brief), for petitioner. Daniel J. Leary, Joplin, Mo., for respondent. Before PHILLIPS, Chief Judge, HUXMAN, Circuit Judge, and SAVAGE, District Judge. HUXMAN, Circuit Judge.- This is a petition by the National Labor Relations Board under Section 10 (e) of the National Labor Relations Act, 29 U.S.C.A. § 160(e), for enforcement of an order issued by it in its usual proceedings under the Act. From the evidence before it in the hearing, the Board found both the employer, Roadway Express, Inc., and Teamster’s Union, Local No. 823, guilty of unfair labor practices under Section 8 of the Act, 29 U. S.C.A. § 158. The employer has undertaken to comply with the order and hence no relief is sought against it. The Union alone resists enforcement of the order. Both the employer and the Union were found guilty of unfair labor practices. The unfair labor practices with which they were charged arose primarily out of the discharge of two employees, Walter C. Buxton and Jess E. Cawthorn. The Board found that these two employees were discriminatorily discharged in violation of Section 8(a) (3) and in violation of Section 8(b) (1) (2) of the Act. Since -the employer dries not resist enforcement of the order reference to it need not be made. So far as the Union is concerned, the Board ordered it to cease and desist from such unfair labor practices. Affirmatively it ordered the employer and the Union jointly and severally to make the -two discharged employees whole because of their discharge. It further required the Union to post notices, mail copies to the Regional Director showing compliance, and to notify the employer in writing that it had no objection to the -reinstatement and that it formally requested the reinstatement of the two employees. Other portions of the order are not involved and need not be set out. The first contention by the Union is that there is no evidence to support the Board’s finding of unfair labor practices in causing the unlawful discharge of the two employees in question. Reciting in detail the evidence which causes us to conclude that the Board’s findings in this respect are amply supported by competent evidence would add nothing of value to the opinion. Neither would it add anything of value to the body of the law as a guide in succeeding cases, because each case is controlled by its own peculiar facts. There are no facts in this case the recital of which would aid in the decision of future controversies. In the interest of brevity and in order not to unnecessarily encumber legal publications, we content ourselves by stating that a perusal of the record supports the findings of unfair labor practices on the part of both the employer and the Union. It is further contended that the order requiring the Union to notify the company in writing that it not only had no objections but formally requested the reinstatement of the two employees is not warranted by the undisputed record. The requested letter was written and sent June 5, 1954, by the Union, with an express reservation of the right to argue the validity or propriety of that portion of the order. The Union contends that this part of the order was not justified because on August 19, 1953, its attorney orally notified a representative of the General Counsel of the Board that it had no objection to the reinstatement of the two employees, or in any event because on October 19, 1953, it filed a written statement to that effect in answer to the Board’s complaint. It is argued that the requirement of a formal writing to the employer requesting reinstatement of the employees, when the local Union at least on these two occasions has made its position clear, was punitive and not remedial and hence beyond the power of the Board. Section 10(c) of the Act places in £he Board powers to forcé the offending party to take such affirmative action as will effectuate the policies of this Act. Of course, the Board has no right under this Section to promulgate orders which are essentially punitive in nature. It has often been held that the Board may require the posting of notices advising employees of the offender’s readiness to comply with the order. A requirement that an employer mail to each of its employees a notice that it would not engage in the conduct from which it was ordered to cease and desist has been upheld. The mere fact that the Union’s attorney orally notified representatives of the General Counsel of the Board that it had no objection to the reinstatement of the employees, or that in its answer to the Board’s complaint it reiterated this statement, does not mean that the Board’s order is arbitrary. That is not such a statement to the employer as to give it positive assurance that further Union trouble will not be forthcoming if the employees are taken back on the payroll. In its answer in which it stated that it had no objection to their reemployment, it denied the charge of unfair labor practices. Obviously, had it been successful in establishing this defense, the employer might have been warranted in concluding that the statement in the answer that it did not object to the reemployment of these men no longer stood. We feel that under all the facts of this case there was a basis for the Board’s requirement that the Union notify the employer in writing that it had no objection to the reemployment of these two employees and that it requested their reemployment. The Board’s order will be enforced. . Herein referred to as the Board. . Herein referred to as the Employer. . Herein referred to as the Union. . Republic Steel Corp. v. National Labor Relations Board, 311 U.S. 7, 61 S.Ct. 77, 85 L.Ed. 6. . E. g., National Labor Relations Board v. Express Publishing Co., 312 U.S. 426, 61 S.Ct. 693, 85 L.Ed. 930. . National Labor Relations Board v. American Laundry Machinery Co., 2 Cir., 152 F.2d 400. Question: What is the total number of respondents in the case that fall into the category "groups and associations"? Answer with a number. Answer:
sc_caseorigin
122
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. SUNAL v. LARGE, SUPERINTENDENT, FEDERAL PRISON CAMP. NO. 535. Argued April 1, 1947. Decided June 23, 1947. No. 535. No. 840. Irving S. Shapiro argued the cause for petitioner in No. 840 and respondent in No. 535. With him on the briefs were Acting Solicitor General Washington and Robert S. Erdahl. Frederick Bernays Wiener was also on the brief in No. 840. Hayden C. Covington argued the cause and filed briefs for respondent in No. 840 and petitioner in No. 535. Mr. Justice Douglas delivered the opinion of the Court. Sunal and Kulick registered under the Selective Training and Service Act of 1940, 54 Stat. 885, 57 Stat. 597, 50 U. S. C. App. § 301, et seq. Each is a Jehovah’s Witness and each claimed the exemption granted by Congress to regular or duly ordained ministers of religion. § 5 (d). The local boards, after proceedings unnecessary to relate here, denied the claimed exemptions and classified these registrants as I-A. They exhausted their administrative remedies but were unable to effect a change in their classifications. Thereafter they were ordered to report for induction — Sunal on October 25, 1944, Kulick on November 9, 1944. Each reported but refused to submit to induction. Each was thereupon indicted, tried and convicted under § 11 of the Act for refusing to submit to induction. Sunal was sentenced on March 22, 1945, Kulick on May 7, 1945, each to imprisonment for a term of years. Neither appealed. At the trial each offered evidence to show that his selective service classification was invalid. The trial courts held, however, that such evidence was inadmissible, that the classification was final and not open to attack in the criminal trial. On February 4, 1946, we decided Estep v. United States and Smith v. United States, 327 U. S. 114. These cases held on comparable facts that a registrant, who had exhausted his administrative remedies and thus obviated the rule of Falbo v. United States, 320 U. S. 549, was entitled, when tried under § 11, to defend on the ground that his local board exceeded its jurisdiction in making the classification — for example, that it had no basis in fact. 327 U. S. pp. 122-123. It is plain, therefore, that the trial courts erred in denying Sunal and Kulick the defense which they tendered. Shortly after the Estep and Smith cases were decided, petitions for writs of habeas corpus were filed on behalf of Sunal and Kulick. In each case it was held that habeas corpus was an available remedy. In Sunal’s case the Circuit Court of Appeals for the Fourth Circuit held that there was a basis in fact for the classification and affirmed a judgment discharging the writ. 157 F. 2d 165. In Kulick’s case the Circuit Court of Appeals for the Second Circuit reversed a District Court holding that there was evidence to support the classification, 66 F. Supp. 183, and ruled, without examining the evidence, that since Kulick had been deprived of the defense he should be discharged from custody without prejudice to further prosecution. 157 F. 2d 811. The cases are here on petitions for writs of certiorari, which we granted because of the importance of the questions presented. The normal and customary method of correcting errors of the trial is by appeal. Appeals could have been taken in these cases, but they were not. It cannot be said that absence of counsel made the appeals unavailable as a practical matter. See Johnson v. Zerbst, 304 U. S. 458, 467. Defendants had counsel. Nor was there any other barrier to the perfection of their appeals. Cf. Cochran v. Kansas, 316 U. S. 255. Moreover, this is not a situation where the facts relied on were dehors the record and therefore not open to consideration and review on appeal. See Waley v. Johnston, 316 U. S. 101, 104; United States ex rel. McCann v. Adams, 320 U. S. 220, 221. And see Adams v. United States ex rel. McCann, 317 U. S. 269, 274-275. The error was of record in each case. It is said, however, that the failure to appeal was excusable, since under the decisions as they then stood — March 22, 1945, and May 7, 1945— the lower courts had consistently ruled that the selective service classification could not be attacked in a prosecution under § 11. See Estep v. United States, supra, p. 123, n. 15. It is also pointed out that on April 30, 1945, we had denied certiorari in a case which sought to raise the same point, and that Estep v. United States, supra, and Smith v. United States, supra, were brought here and decided after Sunal’s and Kulick’s time for appeal had passed. The argument is that since the state of the law made the appeals seem futile, it would be unfair to those registrants to conclude them by their failure to appeal. We put to one side comparable problems respecting the use of habeas corpus in the federal courts to challenge convictions obtained in the state courts. See New York v. Eno, 155 U. S. 89; Tinsley v. Anderson, 171 U. S. 101, 104-105; United States ex rel. Kennedy v. Tyler, 269 U. S. 13; Ex parte Hawk, 321 U. S. 114, 116-117. So far as convictions obtained in the federal courts are concerned, the general rule is that the writ of habeas corpus will not be allowed to do service for an appeal. Adams v. United States ex rel. McCann, supra, p. 274. There have been, however, some exceptions. That is to say, the writ has at times been entertained either without consideration of the adequacy of relief by the appellate route or where an appeal would have afforded an adequate remedy. Illustrative are those instances where the conviction was under a federal statute alleged to be unconstitutional, where there was a conviction by a federal court whose jurisdiction over the person or the offense was challenged, where the trial or sentence by a federal court violated specific constitutional guaranties. It is plain, however, that the writ is not designed for collateral review of errors of law committed by the trial court — the existence of any evidence to support the conviction, irregularities in the grand jury procedure, departure from a statutory grant of time in which to prepare for trial, and other errors in trial procedure which do not cross the jurisdictional line. Cf. Craig v. Hecht, 263 U. S. 255. Yet the latter rule is not an absolute one; and the situations in which habeas corpus has done service for an appeal are the exceptions. Thus where the jurisdiction of the federal court which tried the case is challenged or where the constitutionality of the federal statute under which conviction was had is attacked, habeas corpus is increasingly denied in case an appellate procedure was available for correction of the error. Yet, on the other hand, where the error was flagrant and there was no other remedy available for its correction, relief by habeas corpus has sometimes been granted. As stated by Chief Justice Hughes in Bowen v. Johnston, 306 U. S. 19, 27, the rule which requires resort to appellate procedure for the correction of errors “is not one defining power but one which relates to the appropriate exercise of power.” That rule is, therefore, “not so inflexible that it may not yield to exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent.” Id. p. 27. That case was deemed to involve “exceptional circumstances” by reason of the fact that it indicated “a conflict between state and federal authorities on a question of law involving concerns of large importance affecting their respective jurisdictions.” Id. p. 27. The Court accordingly entertained the writ to examine into the jurisdiction of the court to render the judgment of conviction. The same course was followed in Ex parte Hudgings, 249 U. S. 378, where petitioner was adjudged guilty of contempt for committing perjury. The Court did not require the petitioner to pursue any appellate route but issued an original writ and discharged him, holding that perjury without more was not punishable as a contempt. That situation was deemed exceptional in view of “the nature of the case, of the relation which the question which it involves bears generally to the power and duty of courts in the performance of their functions, of the dangerous effect on the liberty of the citizen when called upon as a witness in a court which might result if the erroneous doctrine upon which the order under review was based were not promptly corrected ....’’ Id. p. 384. Cf. Craig v. Hecht, supra. The Circuit Courts of Appeals thought that the facts of the present cases likewise presented exceptional circumstances which justified resort to habeas corpus though no appeals were taken. In their view the failure to appeal was excusable, since relief by that route seemed quite futile. But denial of certiorari by this Court in the earlier case imported no expression of opinion on the merits. House v. Mayo, 324 U. S. 42, 48, and cases cited. The same chief counsel represented the defendants in the present cases and those in the Estep and Smith cases. At the time these defendants were convicted the Estep and Smith cases were pending before the appellate courts. The petition in the Smith case was, indeed, filed here about two weeks before Kulick’s conviction and about a month after Sunal’s conviction. The same road was open to Sunal and Kulick as the one Smith and Estep took. Why the legal strategy counseled taking appeals in the Smith and Estep cases and not in these we do not know. Perhaps it was based on the facts of these two cases. For the question of law had not been decided by the Court; and counsel was pressing for a decision here. The case, therefore, is not one where the law was changed after the time for appeal had expired. Cf. Warring v. Colpoys, 122 F. 2d 642. It is rather a situation where at the time of the convictions the definitive ruling on the question of law had not crystallized. Of course, if Sunal and Kulick had pursued the appellate course and failed, their cases would be quite different. But since they chose not to pursue the remedy which they had, we do not think they should now be allowed to justify their failure by saying they deemed any appeal futile. We are dealing here with a problem which has radiations far beyond the present cases. The courts which tried the defendants had jurisdiction over their persons and over the offense. They committed an error of law in excluding the defense which was tendered. That error did not go to the jurisdiction of the trial court. Congress, moreover, has provided a regular, orderly method for correction of all such errors by granting an appeal to the Circuit Court of Appeals and by vesting us with certiorari jurisdiction. It is not uncommon after a trial is ended and the time for appeal has passed to discover that a shift in the law or the impact of a new decision has given increased relevance to a point made at the trial but not pursued on appeal. Cf. Warring v. Colpoys, supra. If in such circumstances, habeas corpus could be used to correct the error, the writ would become a delayed motion for a new trial, renewed from time to time as the legal climate changed. Error which was not deemed sufficiently adequate to warrant an appeal would acquire new implications. Every error is potentially reversible error; and many rulings of the trial court spell the difference between conviction and acquittal. If defendants who accept the judgment of conviction and do not appeal can later renew their attack on the judgment by habeas corpus, litigation in these criminal cases will be interminable. Wise judicial administration of the federal courts counsels against such course, at least where the error does not trench on any constitutional rights of defendants nor involve the jurisdiction of the trial court. An endeavor is made to magnify the error in these trials to constitutional proportions by asserting that the refusal of the proffered evidence robbed the trial of vitality by depriving defendants of their only real defense. But as much might be said of many rulings during a criminal trial. Defendants received throughout an opportunity to be heard and enjoyed all procedural guaranties granted by the Constitution. Error in ruling on the question of law did not infect the trial with lack of procedural due process. As stated by Mr. Justice Cardozo in Escoe v. Zerbst, 295 U. S. 490, 494, “When a hearing is allowed but there is error in conducting it or in limiting its scope, the remedy is by appeal. When an opportunity to be heard is denied altogether, the ensuing mandate of the court is void, and the prisoner confined thereunder may have recourse to habeas corpus to put an end to the restraint.” It is said that the contrary position was indicated by the following statement in Estep v. United States, supra, pp. 124-125, “But if we now hold that a registrant could not defend at his trial on the ground that the local board had no jurisdiction in the premises, it would seem that the way would then be open to him to challenge the jurisdiction of the local board after conviction by habeas corpus. The court would then be sending men to jail today when it was apparent that they would have to be released tomorrow.” We were there examining the alternative pressed on us— that the classification could not be attacked at the trial. If we denied the defense, we concluded that habeas corpus would lie the moment after conviction.' For one convicted of violating an illegal order of a selective service board, like one convicted of violating an unconstitutional statute, should be afforded an opportunity at some stage to establish the fact. And where no other opportunity existed, habeas corpus would be the appropriate remedy. But that was an additional reason for allowing the defense in the criminal trial, not a statement that defendants prosecuted under § 11 had an alternative of'defending at the trial on the basis of an illegal classification or resorting to habeas corpus after conviction. These registrants had available a method of obtaining the right to defend their prosecutions under § 11 on that ground. They did not use it. And since we find no exceptional circumstances which excuse their failure, habeas corpus may not now be used as a substitute. Accordingly Sunal v. Large will be affirmed and Alexander v. Kulick will be reversed. So ordered. Mr. Justice Burton concurs in the result. Sunal in 1942 was classified as a conscientious objector and ordered to report for work of national importance. On his failure to do so he was convicted under the Act and a fine and term of imprisonment were imposed. The events with which we are now concerned relate to his classification after his discharge from prison. The Smith case was decided by the Circuit Court of Appeals on April 4, 1945, 148 F. 2d 288; the petition for certiorari was filed April 25, 1945, and granted May 28, 1945. 325 U. S. 846. The Estep case was decided by the Circuit Court of Appeals on July 6, 1945, 150 F. 2d 768; the petition for certiorari was filed August 3, 1945, and granted October 8, 1945. 326 U. S. 703. We therefore lay to one side cases such as Bridges v. Wixon, 326 U. S. 135, Duncan v. Kahanamoku, 327 U. S. 304, and Eagles v. United States ex rel. Samuels, 329 U. S. 304, where the order of the agency under which petitioner was detained was not subject to judicial review. Rinko v. United States, 325 U. S. 851. We also denied certiorari in Flakowicz v. United States, 325 U. S. 851; but it, like Falbo v. United States, supra, was one where the administrative remedies had not been exhausted, there being an additional examination which the registrant had not taken. See Gibson v. United States, 329 U. S. 338. See note 2, supra. Ex parte Siebold, 100 U. S. 371; Ex parte Curtis, 106 U. S. 371; Ex parte Yarbrough, 110 U. S. 651; In re Coy, 127 U. S. 731; Matter of Heff, 197 U. S. 488; Matter of Gregory, 219 U. S. 210; Baender v. Barnett, 255 U. S. 224. Ex parte Watkins, 3 Pet. 193; Ex parte Parks, 93 U. S. 18; Bowen v. Johnston, 306 U. S. 19. Ex parte Lange, 18 Wall. 163 (double jeopardy); In re Snow, 120 U. S. 274 (same); In re Nielsen, 131 U. S. 176 (same); Counselman v. Hitchcock, 142 U. S. 547 (self-incrimination); Ex parte Wilson, 114 U. S. 417 (requirement of indictment); Ex parte Bain, 121 U. S. 1 (same); Callan v. Wilson, 127 U. S. 540 (jury trial); Johnson v. Zerbst, supra (right to counsel); Walker v. Johnston, 312 U. S. 275 (same); Waley v. Johnston, supra (coerced plea of guilty). Harlan v. McGourin, 218 U. S. 442. Ex parte Harding, 120 U. S. 782; Kaizo v. Henry, 211 U. S. 146. McMicking v. Schields, 238 U. S. 99. The rule is even more strict where habeas corpus is sought before trial. See Johnson v. Hoy, 227 U. S. 245. In re Lincoln, 202 U. S. 178; Toy Toy v. Hopkins, 212 U. S. 542; Glasgow v. Moyer, 225 U. S. 420. Tinsley v. Treat, 205 U. S. 20 (removal case). In removal cases habeas corpus is available not to weigh the evidence to support the accusation but to determine whether there is an entire lack of evidence to support it. Hyde v. Shine, 199 U. S. 62, 84. It is also available to determine whether removal to the district in question violates a constitutional right of the accused, Haas v. Henkel, 216 U. S. 462, or whether the court before which it is proposed to take and try the accused has jurisdiction over the offense. Salinger v. Loisel, 265 U. S. 224. But habeas corpus will not be entertained to pass on the question of jurisdiction where it involves consideration of many facts and seriously controverted questions of law. Rodman v. Pothier; 264 U. S. 399; Henry v. Henkel, 235 U. S. 219. The remedy of habeas corpus extends to a ease where a person “is in custody in violation of the Constitution or of a law ... of the United States ...” R. S. § 753,28 U. S. C. § 453. 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:
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. FIRST FEDERAL SAVINGS & LOAN ASSOCIATION OF BOSTON et al. v. TAX COMMISSION OF MASSACHUSETTS et al. No. 77-334. Argued March 21, 1978 Decided June 15, 1978 Stevens, J., delivered the opinion of the Court, in which BurgeR, C. J., and BRENNAN, Stewart, White, Marshall, Powell, and Rehnquist, JJ., joined. Blackmun, J., filed an opinion concurring in part and dissenting in part, post, p. 263. Chester M. Howe argued the cause for appellants. With him on the briefs was Maxwell D. Solet. S. Stephen Rosenfeld, Assistant Attorney General of Massachusetts, argued the cause for appellees. With him on the brief were Francis X. Bellotti, Attorney General, and John E. Bowman, Jr., and Margot Botsford, Assistant Attorneys General. Solicitor General McCree, Assistant Attorney General Ferguson, Stuart A. Smith, and David English Carmack filed a brief for the United States as amicus curiae urging reversal. Mr. Justice Stevens delivered the opinion of the Court. This appeal challenges the power of the State of Massachusetts to impose a tax on federal savings and loan associations. Relying on a federal law forbidding States to tax federal associations more heavily than “similar” state institutions, appellants contend that the State’s tax discriminates against federal associations because: (1) the state institutions subject to the tax are allowed a larger deduction for required additions to reserves than federal associations, and (2) the state tax does not apply to credit unions, which appellants believe to be “similar” to federal savings and loan associations. In the Home Owners’ Loan Act of 1933, Congress authorized the creation of federally chartered savings and loan associations. 48 Stat. 128. Section 5 (h) of that Act, as amended, 76 Stat. 984, 12 U. S, 0. § 1464 (h) (1976 ed.), provides: “No State, county, municipal, or local taxing authority shall impose any tax on such associations or their franchise, capital, reserves, surplus, loans, or income greater than that imposed by such authority on other similar local mutual or cooperative thrift and' home financing institutions.” As enacted in 1966, the Massachusetts statute imposed an excise tax, measured by deposits and income, on state cooperative banks, state savings banks, and state and federal savings and loan associations. 1966 Mass. Acts, ch. 14, § 11. In 1973, the deposits aspect of the tax was invalidated as discriminatory. United States v. State Tax Comm’n, 481 F. 2d 963 (CA1 1973). See n. 3, infra. The present case, brought in state court in 1975, challenges the income aspect of the tax. It was presented on stipulated facts to the Supreme Judicial Court of Massachusetts, which upheld the statute. 372 Mass. 478, 363 N. E. 2d 474 (1977). We affirm. I The state tax statute allows a financial institution to deduct from its taxable income any “minimum additions ... to its guaranty fund or surplus required by law or the appropriate federal and state supervisory authorities.” Mass. Gen. Laws Ann., ch. 63, § 11 (6) (West Supp. 1977). As might be expected, the reserves required by state and federal regulators are not precisely the same. Before 1970, each federal association was required to adopt a charter providing for a minimum reserve equal to 10% of the association’s capital. See 12 CFR §544.1 (1977). This reserve was as large as, or larger than, the reserves that Massachusetts required its institutions to maintain. In 1970, federal associations were allowed to delete the reserve provision from their charters, a change that dropped their reserve requirement to 5% of checking and savings account balances. 35 Fed. Reg. 4044 (1970); 12 CFR §§544.8 (c)(1), 563.13 (1977); 12 U. S. C. § 1726 (b) (1976 ed.). More than three-quarters of the federal associations in Massachusetts adopted the change within a few months of the new regulation, and all but four have now amended their charters. The new requirement is lower than those set for state institutions. For this reason, the federal associations argue, their tax deductions are smaller than those of state institutions; they contend that this disparity in deductions is the sort of discrimination that has been proscribed by federal law. Section 5 (h) of the Home Owners’ Loan Act of 1933 “unequivocally bars discriminatory state taxation of the Federal Savings and Loan Associations.” Laurens Federal Savings & Loan Assn. v. South Carolina Tax Comm’n, 365 U. S. 517, 523. It is one of several laws passed by Congress to protect federally chartered financial institutions from “unequal and unfriendly competition” caused by state tax laws favoring state-chartered institutions. On its face, however, Massachusetts’ tax scheme is not unfriendly or discriminatory. It applies a single neutral standard to state and federal institutions alike. The amount of the deduction depends on varying regulatory practices, but a tax is not invalid because it recognizes that state and federal regulations may differ. There is no reason to believe that § 5 (h) was intended to force state and federal regulation into the same mold. Notwithstanding its neutral language, the federal associations argue that the tax is discriminatory in fact. They have not, however, established that it is unfairly burdensome in “practical operation.” Michigan Nat. Bank v. Michigan, 365 U. S. 467, 476. The record does not indicate that federal associations have suffered a significant handicap in competing with state institutions, or that any other federal policies have been thwarted. The lower reserve requirement, by making more funds available for dividends, may well give the associations a competitive advantage, despite the tax. Certainly the associations’ rush to amend their charters in 1970 lends support to that conclusion. Any suggestion of discriminatory purpose is foreclosed by the fact that the tax was enacted when federal reserve requirements were as high as state requirements. II Massachusetts does not impose its tax on credit unions. Arguing that credit unions in Massachusetts are “similar” to federal savings and loan associations, the associations claim entitlement to the credit unions’ exemption. There are indeed similarities between these two kinds of financial institutions. For example, both are characterized by mutual ownership and control; 12 CFR § 544.1 (1977); Mass. Gen. Laws Ann., ch. 171, §§ 10, 13, and 24 (West 1971 and Supp. 1977); and both are empowered to make loans secured by real estate. 12 U. S. C. § 1464 (c) (1976 ed.); Mass. Gen. Laws Ann., ch. 171, § 24 (West Supp. 1977). But the institutions are far from identical. Congress has long treated federally chartered credit unions differently from federally chartered savings and loan associations, giving the credit unions, but not the savings and loan associations, an exemption from state taxes. See 12 U. S. C. § 1768 (1976 ed.). In establishing insurance programs to protect members’ deposits, Congress distinguished state and federal credit unions from state and federal savings and loan associations. See 12 U. S. C. §§ 1726 (a) and 1781 (a) (1976 ed.). Moreover, courts in other jurisdictions have generally rejected the claim that credit unions are “similar” under § 5 (h) to federal savings and loan associations. The distinctions found in those jurisdictions have validity in Massachusetts as well. By law, Massachusetts credit unions must give preference to small personal loans, Mass. Gen. Laws Ann., ch. 171, §24 (West Supp. 1977), while the primary-lending role of federal savings and loan associations is “to provide for the financing of homes.” 12 U. S. C. § 1464 (a) (1976 ed.). Massachusetts credit unions may lend only to members, Mass. Gen. Laws Ann., ch. 171, § 24 (West Supp. 1977), while federal associations are not so limited. And, despite individual exceptions, there are major differences between the actual lending practices of state credit unions as a class and federal associations as a class. Of greater importance than these differences, however, is the fact that Massachusetts credit unions are not the federal associations’ closest state-chartered competitors. Massachusetts savings banks and cooperative banks have much more in common with federal associations than do state credit unions; their business is unquestionably similar to that of the federal associations. These institutions are an important segment of Massachusetts’ financial community. Any favoritism shown to Massachusetts credit unions falls as harshly on them as on the federal associations. Nonetheless, the Massachusetts Legislature has concluded that credit unions are not similar to state cooperative and savings banks or to state and federal savings and loan associations. When Congress required that federal savings and loan associations be placed in the same classification as “similar” state institutions, it certainly did not assume that every local and mutual or cooperative thrift and home-financing institution is similar to a federal association. See 12 U. S. C. § 1464 (h) '(1964 ed.). It recognized that States might classify their own institutions in various ways. Massachusetts has excluded credit unions from a large classification that includes the institutions most closely resembling federal savings and loan associations. The composition of the class in which Massachusetts has placed the federal associations satisfies the federal statute’s central purpose of protecting federal associations from discriminatory treatment. We conclude that Massachusetts has not imposed a greater tax on the federal associations than that imposed on other “similar” institutions. Accordingly, the judgment of the Supreme Judicial Court is affirmed. So ordered. Massachusetts savings banks must set aside 7%% of deposits. Mass. Gen. Laws Ann., ch. 168, § 58 (West 1971). State cooperative banks must reserve 10% of their assets. Ch. 170, § 38. The reserve requirement for state savings and loan associations is not spelled out by statute. Cf. ch. 93, § 34 (West Supp. 1977). Mercantile Bank v. New York, 121 U. S. 138, 155. See 12 U. S. C. § 548 (1976 ed.) (national banks); 12 U. S. C. § 627 (1976 ed.) (corporations federally authorized to engage in foreign banking). Indeed, the federal statute protects federal associations from being forced into the state regulatory mold. The deposits aspect of the tax was invalidated partly because its apparently neutral provisions were calculated to impose state regulatory requirements on federal associations. The statute permitted an institution to take a deduction for loans secured by out-of-state real estate but only if the property was within 50 miles of the institution’s home office. Mass. Gen. Laws Ann., ch. 63, § 11 (West Supp. 1977). This limit reflected state restrictions on making out-of-state loans more than 50 miles from the home office. United States v. State Tax Comm’n, 481 F. 2d 963, 968-969, n. 6 (CA1 1973). But federal associations are empowered by federal law to make such loans up to 100 miles from home. 12 U. S. C. § 1464 (c) (1976 ed.). By treating the state and federal institutions as though they were subject to the same regulatory limits, the statute exacted a higher tax from federal associations and tended at the same time to force federal associations to follow state rather than federal regulations. It is difficult to conceive of a nondiscriminatory reason for the 50-mile limit on deductions. For these reasons, the Court of Appeals for the First Circuit held the tax discriminatory under § 5 (h). 481 F. 2d, at 970. Cf. n. 3, supra. The sparse evidence introduced on this point by the associations is ambiguous at best. For example, in three of the seven years from 1968 to 1975, federal associations put a larger proportion of their assets into required reserves than did state savings banks, which are the dominant state mutual institutions. From 1970 through 1973, federal associations made smaller contributions to surplus than state savings banks, but in these years the federal associations may have been simply consuming reserves built up under the stringent requirements of their pre-1970 charters. See Manchester Federal Savings & Loan Assn. v. State Tax Comm’n, 105 N. H. 17, 191 A. 2d 529 (1963); First Federal Savings & Loan Assn. v. Connelly, 142 Conn. 483, 115 A. 2d 455 (1955), appeal dismissed, 350 U. S. 927; State v. Minnesota Federal Savings & Loan Assn., 218 Minn. 229, 15 N. W. 2d 568 (1944). As the Supreme Judicial Court noted: “In 1972, . . . credit unions placed 30.1% of their total investments (in dollars) in real estate mortgages. Federal savings and loan associations had 87.7% of their total investments (in dollars) in real estate mortgages. . . . Federal savings and loan associations had almost 98% of their total loans in real estate mortgages .... Credit unions, on the other hand, had only about 42% of their total loans in real estate mortgages.” 372 Mass. 478, 493-494, 363 N. E. 2d 474, 484 (1977). See, e. g., Commissioner of Corporations & Taxation v. Flaherty, 306 Mass. 461, 28 N. E. 2d 433 (1940); Springfield Institution for Savings v. Worcester Federal Savings & Loan Assn., 329 Mass. 184, 107 N. E. 2d 315 (1952). Massachusetts cooperative banks had more than 97% of their total loans in real estate mortgages in 1972, while state savings banks had 95% of their loans in real estate mortgages. Federal associations had almost 98% of their loans in real estate mortgages. Cooperative banks had 80.4% of their total dollar investments in real estate mortgages, and savings banks had 65.3% in such mortgages. The figure for federal associations was 87.7%. See 372 Mass., at 493, 363 N. E. 2d, at 484. Their assets greatly exceed those of state credit unions. State savings banks had assets of almost $18.5 billion in 1973; cooperative banks had almost $3 billion in assets; federal associations had almost $2.5 billion; and credit unions had over $1 billion. App. 131-132; Annual Report of the Commissioner of Banks, Commonwealth of Massachusetts, Division of Banks and Loan Agencies, Sec. B (Credit Unions), iv (1973). Only two of the associations’ remaining attacks on the statute deserve mention. They claim that Massachusetts’ tax is not one of the enumerated taxes approved by § 5 (h), which allows a nondiscriminatory “tax on [federal] associations or their franchise, capital, reserves, surplus, loans, or income.” 12 U. S. C. § 1464 (h) (1976 ed.). Whether or not this tax may be characterized as a “franchise” or an “income” tax, it is certainly a tax “on” federal associations and therefore within the ambit of § 5 (h). The federal associations also argue that the state statute violates the Commerce Clause by creating a risk of multiple taxation. They claim that some neighboring State may at some time in the future attempt to tax the income from loans secured by property in that State. This argument is wholly speculative and unsupported by evidence in the record. Question: What is the ideological direction of the decision? A. Conservative B. Liberal C. Unspecifiable Answer:
songer_applfrom
A
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court). KELLER v. HALL. No. 9195. Circuit Court of Appeals, Ninth Circuit. April 12, 1940. Faries & McDowell, David R. Faries, and Leonard S. Janofsky, all of Los An-geles, Cal., for appellant. Otto E. Myrland, of Tucson, Ariz., for appellee. Clifford R. McFall, of Tucson, Ariz., amicus curiae. Before WILBUR, DENMAN, and MATHEWS, Circuit Judges. WILBUR, Circuit Judge. This suit was before this court on a former appeal. Then, as now, the appellant was H. W. Keller, who, acting on behalf of Las Mercedes Copper Mining Company and San Manuel Mines Company, two corporations organized under the laws of the Republic of Mexico, had entered into a contract with the- appellee, James M. Hall, for the operation and exploitation of certain mining properties in Mexico. That contract provided in part that Hall was to take possession of the properties, erect a mill thereon, and pay a guaranteed royalty. This suit was brought by the appellant against the appellee for an alleged breach of the contract. Damages aggregating $119,500 were claimed on account of unpaid royalties, of a failure to erect the mill as agreed, • and for other minor breaches of the contract. An accounting was sought as to alleged liens and encumbrances due to appellee’s failure to pay claims for labor. Appellant also prayed for a decree that appellee deliver possession and execute reconveyances to the corporations. The appellee filed an answer and a cross-complaint, alleging in each that the corporations represented by appellant did not have title to the properties covered by the contract entered into by appellant in their behalf and for that reason the ap-pellee had been prevented from mining thereon for fear of violating the criminal laws' of Mexico applicable thereto. The cross-complaint sought to recover the sum of $353,434.88 for damages resulting from the alleged failure of title. The court below treated the case as a suit in equity and for that reason it will be .so considered here. On November 3, 1936, that court entered a decree dismissing the complaint and awarding appellee the sum of $15,500 upon his cross-complaint on the theory that because of failure of title the contract was void for lack of consideration. The appellant perfected an appeal from the judgment and during the pendency of the appeal entered into a number of written contracts with appellee relating to the matter including a stipulation for a judgment of reversal and for retrial. The agreement for a reversal of the judgment was signed by the parties personally and also by their attorneys in the case. These contracts and the stipulation resulting therefrom purported to be a settlement of all the claims of the appellee against the appellant but of none of the claims of appellant against the appellee. Contemporaneously therewith appellee assigned to J. C. Argue, appellant’s nominee, the decree entered by the district court against appellant on November 3, 1936, “together with any and all claims which he may now hereafter have against said H. W. Keller and against Las Mercedes Copper Mining Company, S. A. and San Manuel Mining Company, S. A., and/or any of them in any way arising out of that certain agreement executed on November 13, 1933, at Los Angeles, California, between the aforementioned companies as parties of the first part and the undersigned as party of the second part. * * It is further understood that nothing herein contained in any way affects the claims of plaintiff herein against the undersigned or constitutes any admission on the part of the undersigned that he is in any way indebted to the plaintiff herein under the terms of the contract of November 13, 1933, hereinbefore referred to.” Thereafter, the appellant presented this stipulation for a reversal to this court and moved that this court make its order reversing the decree of the district court “and make its order remanding the said cause to the said United States District Court for a new trial, each party to bear his own costs on appeal.” In accordance with stipulation and motion of the appellant this court made its order reversing the judgment of the district court and remanding the cause for a new trial. Prior to the new trial the appellant filed a supplement to his answer to the cross complaint in which he alleged that by reason of the stipulations and contracts above referred to the claim of the appellee Hall set up in the cross complaint had been settled. The trial court proceeded with a retrial of the case and heard the evidence offered by both parties but concluded that the assignment of the appellee’s judgment “to the plaintiff's said nominee pending said appeal extinguished said judgment. * * * That on said assignment the plaintiff became the owner of both sides of the litigation the issues in which were raised by the pleadings of the respective parties, and the defendant was not thereafter a party to said appeal or to a dismissal thereof.” The trial court overlooked the fact .that its jurisdiction to proceed further in the case was a result of the reversal of its former judgment by this court and of our order remanding the case for a new trial. If the order for a new trial was void because there were no adverse parties to the appeal, as the trial court held, so also was the reversal of the judgment. But assuming that this court had jurisdiction the validity of the order of this court was not a question for the consideration of the trial court. Its duty was to follow the plain mandate of this court and to proceed with a new trial of the issues. Moreover, the judgment theretofore rendered in the case, after it was reversed, was “without any validity, force, or effect”. Butler v. Eaton, 141 U.S. 240, 11 S.Ct. 985, 987, 35 L.Ed. 713. It could not be the basis for a claim of estoppel or res judicata. It is clear that this court had jurisdiction to reverse the judgment and remand the case for a new trial. Prior to the assignment of the judgment this court had obtained jurisdiction of the appeal and of the parties. It did not lose that jurisdiction because of the assignment. Cf. South Spring Gold Co. v. Amador Gold Co., 145 U.S. 300, 12 S.Ct. 921, 36 L.Ed. 712. The decree rendered herein must be reversed and the case again remanded for a new trial. The agreements of the parties subsequent to the judgment did not deal exclusively with the first judgment but covered other matters material to the rights of the parties. All questions arising therefrom may be presented to the trial court upon the new trial by supplemental pleadings relating to the partial settlement of the controversy between them, raising such issues as the parties may desire. Leave should be given to file such supplemental pleadings if requested. Reversed and remanded for a new trial. Cf. Cutler v. Cook, 9 Cir., 78 F.2d 863, 866; Twist et al. v. Prairie Oil & Gas Co., 274 U.S. 684, 47 S.Ct. 755, 71 L.Ed. 1297. The contract of September 29, 1937, in that regard, provided as follows: “(2) Party of the second part has recovered judgment against II. W. Keller in the action last hereinabove described in the sum of $15,500.00 together with interest and costs, does hereby agree that he will concurrently herewith assign the said judgment and all thereof to J. C. Argue, the nominee of the said I-I. W. Keller and the parties of the first part in consideration of the sum of ten ($10.00) dollars, receipt of which is hereby acknowledged. * * * “(6) As consideration for the execution by the party of the second part of the assignment of his claims against H. W. Keller and the parties of the first part, the parties of the first part do hereby agree that the party of the second part may work said mining claims at his own expense provided that he do so in a diligent and workmanlike manner without unnecessary waste and he shall be entitled to take all the net profits to be derived from the operation of said property until he" shall have received the sum of $9250.00.” The agreement of September 29, 1937, after referring to the contract for the exploitation of the mine executed November 13, 1933, contained the following stipulation: “Now, therefore, it is hereby agreed by and between the parties hereto that: (1) This agreement is not and shall never be construed as a release by the parties of the first part of any of their claims against the party of the second part in any way arising out of the contract of November 13, 1933, hereinbe-fore referred to nor of the claims asserted by H. W. Keller in the case of H. W. Keller v. James M. Hall, filed in the District Court of the United States for the District of Arizona, at Tucson, Arizona, under No. E-236.” Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)? A. Trial (either jury or bench trial) B. Injunction or denial of injunction or stay of injunction C. Summary judgment or denial of summary judgment D. Guilty plea or denial of motion to withdraw plea E. Dismissal (include dismissal of petition for habeas corpus) F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict) G. Appeal of post settlement orders H. Not a final judgment: interlocutory appeal I. Not a final judgment: mandamus J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment K. Does not fit any of the above categories, but opinion mentions a "trial judge" L. Not applicable (e.g., decision below was by a federal administrative agency, tax court) Answer:
songer_two_issues
B
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there are two issues in the case. By issue we mean the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. HOFFMAN v. F. H. DUEHAY, Inc. No. 5643. Court of Appeals of the District of Columbia. Submitted Feb. 13, 1933. Decided May 29, 1933. Jacob N. Halper, of Washington, D. C., for appellant. W. W. MeCaslin and Jean M. Boardman, both of Washington, D. C., for appellee. Before MARTIN, Chief Justice, and VAN ORSDEL, HITZ, and GRONER, Associate Justices. HITZ, Associate Justice. Appellant — defendant below — appeals from an equity decree of the District Supreme Court requiring him to pay the amount found by the court to be due by him to ap-pellee — plaintiff below — on a contract of lease. In June, 1927, the parties entered into a written contract of lease of certain office rooms in the Farragut building, in Washington. In consideration of appellant’s leasing the rooms for three years, appellee agreed, at a cost of a thousand dollars or more, to remodel the rooms to make them suitable for the use of appellant in his practice as a physician. The lease was to commence as of August 1, 1927, and prior to that date the remodeling was completed and appellant entered into possession and occupied the rooms and paid the rent until October, 1929, when he quit and refused to pay for the balance of the term, contending the lease was void and of no effect because not under seal as required by the provision of the Code (D. C. Code 1929, title 25, c. 6, § 116). Plaintiff brought suit in equity for the specific performance of the contract. The theory of the suit is that a court of equity will decree specific performance notwithstanding the provisions of the statute of frauds where the terms of the contract are clearly proved and a sufficient part performance is made out to show that fraud and injustice would be done if the contract was held to be inoperative. The trial court entered a decree for the plaintiff, and defendant now insists that the effect of this decree is to abrogate the provisions of the Code in relation to leases for more than a year. But we think the decree is a recognition of the established jurisdiction of equity to specifically enforce a contract invalid under the statute of frauds, where the complaining party on the faith of the contract has so altered his position as to commend his ease to the discretion of the chancellor (Kresge v. Crowley, 47 App. D. C. 13). The rule now universally applied was stated by Justice Clifford as follows: “Where one of the two contracting parties has been induced or allowed to alter his position on the faith of such contract, to such an extent that it would be fraud on the part of the other party to set up its invalidity, courts of equity hold that the olear proof of the contract and of the acts of part performance will take the case ont of the operation of the statute.” Williams v. Morris, 95 U. S. 444, 457, 24 L. Ed. 360. And this, as has been often said, is to preserve the statute from furthering fraud instead of preventing it. Counsel suggests that no eases have come to his notice where such relief has been granted to landlords, but the transposition of the parties litigant is the only difference between this case and Kresge v. Crowley. And in that difference we find no distinction. • As was said by the Supreme Court of Wisconsin, in a ease where even the alignment of the parties was the same: “It is self-evident that this equitable relief must be mutual.” Seaman v. Aschermann, 51 Wis. 682, 8 N. W. 818, 820, 37 Am. Rep. 849. The plaintiff expended a thousand, dollars in altering the rooms to meet the defendant’s peculiar needs, on the faith of the defendant’s agreement, winch is not only fully proved over the defendant’s signature, but is not denied, and to sanction the defendant’s repudiation thereof would work a grave injustice to the plaintiff. Purcell v. Miner, 4 Wall. 513, 18 L. Ed. 435; Williams v. Morris, 95 U. S. 444, 24 L. Ed. 360; Winslow v. Baltimore & C. R. Co., 188 U. S. 646, 23 S. Ct. 443, 47 L. Ed. 635. We find no error in the chancellor’s exercise of his discretion in this decree, which is therefore affirmed. Affirmed. Question: Are there two issues in the case? A. no B. yes Answer:
songer_respond2_3_3
K
What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the second listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "cabinet level department". Your task is to determine which specific federal government agency best describes this litigant. CAJUN TUBING TESTORS, INC., Employer and Pacific Marine Insurance Company, Carrier, Petitioners, v. Sandres HARGRAVE and Director, Office of Workers’ Compensation Programs, United States Department of Labor, Respondents. No. 91-4463 Summary Calendar. United States Court of Appeals, Fifth Circuit. Jan. 16, 1992. Andrew H. Meyers, Preis & Kraft, Lafayette, La., for petitioners. Samuel J. Oshinsky, Carol DeDeo, Assoc. Solicitor, U.S. Dept, of Labor, Washington, D.C., for Director. Lisa L. Lahrman, Clerk BRB, Dept, of Labor, Washington, D.C., for other interested parties. Before GARWOOD, HIGGINBOTHAM, and BARKSDALE, Circuit Judges. PER CURIAM: Cajun Tubing Testors, Inc. and Pacific Marine Insurance Co. seek review of a decision of the Department of Labor’s Benefits Review Board dismissing their application for section 8(f) relief. 33 U.S.C. § 908(f). The sole issue before us is whether the deputy commissioner was entitled to dismiss petitioners’ application because it was not timely filed within the meaning of 20 C.F.R. § 702.321(b). Because the application was properly dismissed, we deny the petition. I In May of 1984, claimant Sandres Har-grave suffered a back injury in the course of his employment, resulting in disability. He filed a claim for benefits under the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. § 901 et seq. Har-grave’s employer and its insurance carrier, petitioners here, admitted liability and voluntarily paid all compensation and medical expenses due to Hargrave. Petitioners then sought relief under § 8(f) of the Act, which provides that where an employee has a preexisting permanent partial disability, and then is injured and disabled totally and permanently at least in part because of his prior disability, the employer’s liability may be limited to 104 weeks of coverage. 33 U.S.C. § 908(f). The remainder of the employee’s benefits are to be paid out of a special fund. Id. The purpose of this provision is to encourage the employment of handicapped workers, by protecting an employer who hires a handicapped worker from paying total disability and compensation for an injury that would have been a partial disability but for preexisting conditions. See Lawson v. Suwanee Fruit & Steamship Co., 336 U.S. 198, 202, 69 S.Ct. 503, 505, 93 L.Ed. 611 (1949). In March of 1988, the assistant deputy commissioner of the Office of Workers’ Compensation Programs (OWCP) sent petitioners a deficiency notice because they had failed to provide certain medical and vocational reports necessary to process their § 8(f) application. The notice stated that petitioners would have 60 days to submit a fully documented application. Petitioners did not submit a revised application until September of 1988, well after the 60 day deadline. Section 8(f) specifically states that a request for apportionment of liability to the special fund, and a statement of the grounds therefor, “shall be presented to the deputy commissioner prior to the consideration of the claim by the deputy commissioner. Failure to present such request prior to such consideration shall be an absolute defense to the special fund’s liability for the payment of any benefits in connection with such claim_” 33 U.S.C. § 908(f)(3). In implementing this statutory mandate, the Director of the OWCP established a regulation that states that “failure to submit a fully documented application by the date established by the deputy commissioner shall be an absolute defense to the liability of the fund.” 20 C.F.R. § 702.-321(b)(3). The deputy commissioner asserted this defense to liability, and petitioners requested review by an administrative law judge. The ALJ dismissed their request for relief, and the Benefits Review Board affirmed. Petitioners now seek relief in this court. II Petitioners argue that the deputy commissioner is precluded from raising the defense of failure to submit a fully documented application because permanency of disability was not an issue before the deputy commissioner. They rely on language in § 702.321(b)(3) which states that “[t]he absolute defense will not be raised where permanency was not an issue before the deputy commissioner.” Furthermore, § 702.321(b)(1) refers to “informal conferences” at which the issue of permanency may be raised and deadlines for submission of applications established. Petitioners contend that the deputy commissioner lacked authority to set an arbitrary deadline for submission of an application because no informal conference was held. We disagree. Petitioners have taken language in the regulation out of context. Section 702.321(b)(3) states in full that Where the claimant’s condition has not reached maximum medical improvement and no claim for permanency is raised by the date the case is referred to the OALJ, an application need not be submitted to the deputy commissioner to preserve the employer’s right to later seek relief under section 8(f) of the Act. In all other cases, failure to submit a fully documented application by the date established by the deputy commissioner shall be an absolute defense to the liability of the special fund. This defense is an affirmative defense which must be raised and pleaded by the Director. The absolute defense shall not be raised where permanency was not an issue before the deputy commissioner. In all other cases, where permanency has been raised, the failure of an employer to submit a timely and fully documented application for section 8(f) relief shall not prevent the deputy commissioner, at his/her discretion, from considering the claim for compensation and transmitting the case for formal hearing. The failure of an employer to present a timely and fully documented application for section 8(f) relief may be excused only where the employer could not have reasonably anticipated the liability of the special fund prior to the consideration of the claim by the deputy commissioner. Relief under section 8(f) is not available to an employer who fails to comply with section 32(a) of the Act, 33 U.S.C. 932(a). The regulation’s meaning becomes clear when read in its entirety. Failure to file a fully documented application is acceptable only when there are reasons that the employer could not have foreseen that it had a § 8(f) claim before consideration of the case by the deputy commissioner. The regulation offers an example of such a situation — when claimant’s condition has not yet reached maximum medical improvement and therefore the employer’s potential claim of permanency of disability is as yet unripe. We think the language that “the absolute defense shall not be raised when permanency is not an issue before the deputy commissioner” means simply that an employer need not file a § 8(f) application with the deputy commissioner unless he has reason to believe that the claimant has suffered permanent disability. This interpretation conforms to part (b)(1) of this regulation, which states that “[a] request for section 8(f) relief should be made as soon as the permanency of the claimant’s condition becomes known or is an issue in dispute. This could be when benefits are first paid for permanent disability, or at an informal conference held to discuss the permanency of the claimant's condition.” An employer is clearly obligated to submit a claim when it knows that it has such a claim. Petitioners seem to argue that permanency was not “an issue before the deputy commissioner” because no conference was held by the deputy commissioner on the matter. This argument is without merit. The language quoted above demonstrates that an informal conference is only one of several events that could give rise to an obligation to submit a fully documented § 8(f) application. Payment of permanent disability benefits is another. Knowledge of permanent disability is another. Nor can we agree with petitioners that the deputy commissioner can set a deadline for submission of an application only in connection with an informal conference. Part (b)(2) of the regulation contemplates situations in which a deadline for submission of a fully documented application will be required even though a conference has not been held. After the setting of deadlines in connection with informal conferences is discussed, the regulation states that “[i]n fixing the date for submission of the application under circumstances other than described above ..., the deputy commissioner shall consider the circumstances of the case....” The purpose of setting deadlines under § 702.321 is to require employers to raise their § 8(f) claims early in the claims adjudication process, so that the deputy commissioner can evaluate them and defend against them when necessary. See 51 Fed. Reg. 4270, 4278 (February 3, 1986). To allow employers to submit inadequately documented applications and disregard deadlines set by the deputy commissioner for their completion would frustrate this purpose. Although the absolute defense to liability should not be invoked where the necessary evidence was inaccessible to the employer, see id. at 4279, petitioners here do not argue that the missing documentation was not available. At the very least, petitioners were required to ask for an extension if they were having difficulty obtaining the relevant materials. This is not a situation where an employer could not have anticipated his obligation to file an application. Nor is it accurate that no claim of permanency was raised. Rather, the petitioners filed an application and asserted the permanency of the disability, but failed to provide adequate documentation within the time period set by the deputy commissioner. The deputy commissioner clearly gave petitioners adequate notice of the 60 day deadline. Petitioners failed to meet the deadline and neglected to apply for an extension. Their request for § 8(f) relief was properly dismissed. PETITION DENIED. . We apply the 1988 version of the regulation, since it was in force at the time the events in this case occurred. The current version of the regulation substitutes the term “district director" for “deputy commissioner." See 20 C.F.R. § 702.321 (1991). Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "cabinet level department". Which specific federal government agency best describes this litigant? A. Department of Agriculture B. Department of Commerce C. Department of Defense (includes War Department and Navy Department) D. Department of Education E. Department of Energy F. Department of Health, Education and Welfare G. Department of Health & Human Services H. Department of Housing and Urban Development I. Department of Interior J. Department of Justice (does not include FBI or parole boards; does include US Attorneys) K. Department of Labor (except OSHA) L. Post Office Department M. Department of State N. Department of Transportation, National Transportation Safety Board O. Department of the Treasury (except IRS) P. Department of Veterans Affairs Answer:
songer_appel1_7_5
B
What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine which of these categories best describes the income of the litigant. Consider the following categories: "not ascertained", "poor + wards of state" (e.g., patients at state mental hospital; not prisoner unless specific indication that poor), "presumed poor" (e.g., migrant farm worker), "presumed wealthy" (e.g., high status job - like medical doctors, executives of corporations that are national in scope, professional athletes in the NBA or NFL; upper 1/5 of income bracket), "clear indication of wealth in opinion", "other - above poverty line but not clearly wealthy" (e.g., public school teachers, federal government employees)." Note that "poor" means below the federal poverty line; e.g., welfare or food stamp recipients. There must be some specific indication in the opinion that you can point to before anyone is classified anything other than "not ascertained". Prisoners filing "pro se" were classified as poor, but litigants in civil cases who proceed pro se were not presumed to be poor. Wealth obtained from the crime at issue in a criminal case was not counted when determining the wealth of the criminal defendant (e.g., drug dealers). Gordon Jay THOMPSON, Appellant, v. J. T. WILLINGHAM, Warden, United States Penitentiary, Lewisburg, Pennsylvania. No. 14329. United States Court of Appeals Third Circuit. Submitted May 10, 1963. Decided May 22, 1963. Gordon Jay Thompson, pro se. Bernard J. Brown, U. S. Atty., Lewis-burg, Pa., Lt. Col. James C. Waller, Jr., JAGC, Washington, D. C. (Harry A. Nagle, Asst. U. S. Atty., Lewisburg, Pa., on the brief), for appellee. Before McLAUGHLIN and FORMAN, Circuit Judges, and COOLAHAN, District Judge. PER CURIAM. Gordon Jay Thompson, a former private in the United States Army, was convicted by a general court martial on July 28, 1959 of premeditated murder, larceny and reckless driving in violation of respective Articles 118, 121 and 111 of the Uniform Code of Military Justice (10 U.S.C.A. §§ 918, 921 and 911). He was sentenced, among other sanctions, to life imprisonment, which he is now serving at the United States Penitentiary, Lewis-burg, Pennsylvania. He petitioned the United States District Court for the Middle District of Pennsylvania for a writ of habeas corpus on the grounds (1) that he was illegally detained because he was tried by a military court for a capital offense in time, of peace in violation of his rights under the Constitution of the United States; (2) that his military trial for reckless driving was invalid because it was for the identical offense for which he was tried, convicted and sentenced by a court of the State of Oklahoma; and (3) thab his military trial in Oklahoma for an offense committed in New Jersey was unlawful. Judge Follmer found in his memorandum opinion that Thompson had pursued the various appellate and review procedures open to him, including final action on a petition for grant of review, which was denied by the United States Court of Military Appeals. He also correctly and effectively disposed of Thompson’s claims contrary to his contentions and on October 12, 1962 entered an order, 217 F.Supp. 901, denying the petition for the writ. This appeal is from that order. Thompson’s arguments are the same as before the District Court except for the elaboration of his contention that Article 118 of the Uniform Code of Military Justice (10 U.S.C.A. § 918) violates the Fifth Amendment of the Constitution of the United States in that it subjected him as a member of the military forces on active duty for a capital crime in time of peace without indictment by a Grand Jury. The Fifth Amendment provides in pertinent part: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; * * (Emphasis added.) In particular Thompson submits that under rules of grammar the above italicized language not only modifies “Militia” but also modifies “land or naval forces”. This contention is without merit. It was raised long ago and disposed of in Johnson v. Sayre, 158 U.S. 109, 114, 15 S.Ct. 773, 775, 39 L.Ed. 914 (1895) when the Court said: “The decision below is based upon the construction that the words ‘when in actual service in time of war or public danger’ refer, not merely to the last antecedent, ‘or in the militia,’ but also to the previous clause, ‘in the land or naval forces.’ That construction is grammatically possible. But it is opposed to the evident meaning of the provision, taken by itself, and still more so, when it is considered together with the other provisions of the Constitution.” For the reasons ably stated by Judge Follmer in his memorandum opinion his order of October 12, 1962 denying the petition for a writ of habeas corpus will be affirmed. Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Which of these categories best describes the income of the litigant? A. not ascertained B. poor + wards of state C. presumed poor D. presumed wealthy E. clear indication of wealth in opinion F. other - above poverty line but not clearly wealthy Answer:
songer_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. WORKINGMEN’S LOAN ASS’N v. UNITED STATES. No. 3939. Circuit Court of Appeals, First Circuit. April 18, 1944. Jackson R. Collins, of New York City (Edmund Burke and Fíale & Dorr, all of Boston, Mass., of counsel), for appellant. Homer R. Miller, Sp. Asst, to Atty. Gen. Samuel O. Clark, Jr., Asst. Atty. Gen., Sewall Key, A. F. Prescott, and Roland A. Cormier, Sp. Assts. to Atty. Gen., and Edmund J. Brandon, U. S. Atty., and George F. Garrity, Asst. U. S. Atty., both of Boston, Mass., for appellee. Before MAGRUDER, MAHONEY, and WOODBURY, Circuit Judges. MAGRUDER, Circuit Judge. Appellant taxpayer was incorporated in 1888 by special act of the Massachusetts legislature for the purpose of lending money with or without security, and is presently qualified and licensed under the Massachusetts Small Loan Act, Mass.G.L. (1932) c. 140, §§ 96-114. It sued in the court below to recover back the amount paid for the year 1937 as personal holding company surtax imposed under § 351 of the Revenue Act of 1936, 49 Stat. 1648, as amended by § 1 of the Revenue Act of 1937, 50 Stat. 813, 26 U.S.C.A. Int.Rev. Acts, page 936. Admittedly, the taxpayer falls within the statutory definition of the term “personal holding company” if at least 80% of its gross income for the taxable year consisted of “interest” within the meaning of § 353 and of the applicable regulation. At the trial the taxpayer sought to establish that over 20% of its gross income consisted of charges for services rendered to borrowers which were properly separable from “interest” charges for the use of money lent. The District Court gave judgment for the defendant, accepting the government’s contention that the case on its facts was controlled by our decision in Noteman v. Welch, 1 Cir., 1939, 108 F.2d 206. We think that the facts presented in the present record are significantly different from the facts of the Noteman case, and that the latter case is not controlling here, though some of the- language in our Note-man opinion may have been misleading to the District Court. In Noteman v. Welch we pointed out that the contracts, of loan did not assign any specific portion of the payments made by borrowers to particular charges properly separable from interest. In that case the lender made a blanket charge of 3% per month upon unpaid balances of principal, the promissory notes executed by the borrowers reciting that of this charge “approximately one per cent is for interest; and approximately two per cent is for expenses. * * * ” The gross income of the taxpayer consisted entirely of payments received from borrowers. The taxpayer had the burden of establishing that over 20% of such payments was for something other than “interest.” In support of the recital on the promissory notes that the borrowers were being charged approximately 1% per month for “interest” and approximately 2% per month for “expenses,” the taxpayer introduced in evidence its corporation income tax return for the taxable year showing $104,514 as its gross income from payments by borrowers, and total deductions for expenses in the amount of $61,808.50. The latter sum was the whole amount of the lender’s operating and overhead expenses in running its business; obviously such a composite item could not be claimed as charges for services to borrowers in addition to the charge for the use of borrowed money. We said (108 F.2d at page 213): “A borrower has no interest in the rent which the finance company pays for its offices, in the cost of its office supplies, in the management fees which it pays to an affiliate, in the salaries of its employees, in the cost of its advertising, or in its losses for bad debts, except as those operating expenses require the finance company to charge the borrower more for the use of the money borrowed.” We proceeded to examine the taxpayer’s breakdown of the expense items and concluded that it was impossible, on the record before us, to allocate any definite portion of the same to charges for services rendered to borrowers properly separable from interest. For instance, we pointed out that the item claimed as expenses for “Investigation of Borrower and Security” represented “the expense of investigating all applicants, though on the average loans are made only to four out of seven investigated. Thus, the actual borrowers bear the overhead expense of investigating rejected applicants. So, the expense of investigating security is spread over all borrowers, including those who borrow without security.” Again, we pointed out that the sums allocatéd for expenses of pursuing delinquent debtors, like losses for bad debts, “obviously do not represent services or expenses in connection with loans to borrowers who are not delinquent; yet they are charged to all borrowers in the undifferentiated item of 2 per cent a month ‘for expenses’. ” Our holding in the Noteman case was that the taxpayer had failed to sustain the burden of proving that over 20%' of its gross income was derived from sources other than interest. We recognized, however, that charges made by lenders in connection with making loans are not necessarily all “interest” within the meaning of § 351, and that .the loan contract may properly call for the rendition of certain specified services by the lender for which a separate charge is to be made in addition to interest. It is of course true that a borrower may have costs in connection with procuring a loan over and above the interest charge for the use of borrowed money. He may, for example, have to pay the expense of procuring a credit rating in a mercantile agency, or the fee of a certified public accountant for preparing a balance sheet, or an appraiser’s fee for appraising property which he offers as security, or the fee of a lawyer for searching a title. In the case of the small individual borrower who applies to a personal finance company for a loan, services of this nature, for which the borrower would otherwise have to pay a third person, are not uncommonly rendered by the finance company for a separate charge in addition to interest. This is well recognized in cases applying the usury statutes. See 21 A.L.R. 871; 63 A.L.R. 836; 105 A.L.R. 810; Am. L. Inst. Restatement of Contracts, § 533. Such separate charges for services actually rendered are legitimate, unless excessive in amount and designed as a cloak for obtaining interest at a higher rate than that permitted by law. See Collins, Evasion and Avoidance of Usury Laws (1940) 8 Law and Contemporary Problems 54. We now come to the facts in the case at bar. The evidence was all stipulated. The relevant portions of the stipulation are as follows: “5. That if a witness by the name of E. T. Felter, who was assistant treasurer of the Workingmen’s Loan Association, were produced by the plaintiff and gave evidence, he would testify in substance according to the contents of an affidavit made by the said E. T. Felter, copy of which is attached hereto, hereby made a part hereof, and marked Exhibit 4. “6. That the initial charges for investigation, identification, inspection and appraisal as set forth in the affidavit of Mr. Felter are the customary and usual charges made by concerns engaged in business similar to that conducted by the plaintiff. * * * * * “13. That in 1937 the gross income of the plaintiff was $125,714.18. That of this amount $37,544.46 is from initial charges, the detail of which is set forth in Exhibit 4. Of the gross income $88,159.72 came from ‘interest.’ That the fees represented 29.88 per cent of the gross income of the plaintiff; that ‘interest’ represented only 70.12 per cent. “14. That neither party is to be prejudiced by the use of the phrases ‘interest,’ ‘interest and charges,’ ‘interest and services,’ or similar phrases when used (a) in the body of the stipulation, (b) concerning the plaintiff’s books, records or activities, and (c) in the statements of counsel.” The affidavit of E. T. Felter which was made part of the stipulation of facts was to the following effect, with reference to the manner in which the taxpayer conducted its business: In making loans and keeping i'ts books, the taxpayer has had the practice of separating what it regards as the interest charges from charges for sefvices to borrowers in investigating, identifying, inspecting and appraising the credit and security of the borrower. A so-called “initial charge” for these separate services is made known to the borrower before the loan is consummated and is collected in advance as a flat sum which does not vary with .the duration of the loan. These initial charges, as distinguished from interest, are adjusted to the nature of the loan. In the case of unsecured loans the borrower makes an initial payment of from $3 to $5, depending on the size of the loan, plus an additional sum equal to 2% of the face of the note. In the case of secured loans there is- an initial charge of $5, plus an additional charge varying between 2% and 7%, depending upon the type of security involved. The interest rate, as distinguished from the initial charge, is 1 % a month on the unpaid balance; this is the only charge mentioned in the form .of promissory note executed by borrowers from the taxpayer. It is to be emphksized that these initial charges are adjusted to the amount and type of loan, secured or unsecured,- and are specifically allocated, by agreement with the borrower, to the expense of “investigation, identification, inspection and appraisal.” They are' “the customary and Usual charges made by concerns engaged in business similar to that conducted by the plaintiff.” They'are paid-in advance, and do not depend upon- the duration -of the loan, whereas in the Noteman case the blanket charge- for “expenses” was fixed at ' 2% á ■ month on the unpaid balances and fan along during the whole life of the loan. There- was no suggestion that the present taxpayer’s charges for specific initial services-were excessive and a mere-'device for concealing an. exaction not permitted by law. Indeed, as indicated in the 'Noteman case, the personal -finance company ■ in Massachusetts gains no particular advantage by segregating'.the charges for initial ■services and the charges for interest, because the Massáchusétts ;.S'máll Loaii Act authorizes the Commissioner of Banks to prescribe an over-all charge “for interest and expenses” not to exceed 3% a month, to be paid by the borrower; beyond this “No charge, bonus, fee, expense or demand of any nature whatsoever” may be exacted from the borrower in connection with the loan. As a matter of fact, the aggregate charges made by the present taxpayer appear to be substantially less than the maximum allowed-by law. Inview of the stipulated facts, it is our opinion that the taxpayer made out its case for a refund. Thejudgment of the District Court is vacated, and the case is remanded to that court for the entry of judgment for the plaintiff in the appropriate amount. “Sec. 351. Surtax on Personal Holding Companies “There shall be levied, collected, and paid, for each taxable year (in addition to the taxes imposed by Title I), upon the undistributed adjusted net income of every personal holding company a surtax equal to the sum of the following: “(1) 65 per centum of the amount thereof not in excess of $2,000; plus “(2) 75 per centum of the amount thereof in excess of $2,000.” “Sec. 352. Definition of Personal Holding Company “(a) General rule. For the purposes of this title and of Title I the term ‘personal holding company’ means any corporation if— “(1) Gross income requirement. At least 80 per centum of its gross income for the taxable year is personal holding company income as defined in section 353; but if the corporation is a personal holding company with respect to any taxable year, then, for each subsequent taxable year, the minimum percentage shall be 70 per centum in lieu of-80 per centum, until a taxable year during the whole of the last half of which the stock ownership required by paragraph (2) does not exist, or until the expiration of three consecutive taxable years in each of which less than 70 per centum of the gross income is personal holding company income; and “(a) Stock ownership requirement. At any time during the last half of the taxable year more than 50 per centum in value of its outstanding stock is owned, directly or indirectly, by or for not more than five individuals. “(b) Exceptions. The term ‘personal holding company’ does not include a corporation exempt from taxation under section 101, a bank as defined in section 104, a life insurance company, a surety company, or except with respect to a taxable year ending on or before the date of the enactment of the Revenue Act of 1937, a foreign personal holding company as defined in section 331.” “Sec. 353. Personal Holding Company Income “For the purposes of this title the term ‘personal holding company income’ means the portion of the gross income which consists of: “(a) Dividends, interest, royalties (other than mineral, oil, or gas royalties), annuities.” Treasury Regulations 94, promulgated under the Revenue Act of 1936: “Art. 351-2. Classification of a Personal Holding Company.— * * * “(3) Interest.—The term ‘interest’ means any amounts, includible in gross income under Title I, received for the use of money loaned.” Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number. Answer:
songer_applfrom
A
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court). SOTTONG et al. v. MAGNOLIA PETROLEUM CO. No. 3467. Circuit Court of Appeals, Tenth Circuit July 7, 1947. Rehearing Denied Aug. 6, 1947. Ram Morrison, of Oklahoma City, Old., for appellants. W. R. Wallace, of Oklahoma City, Old. (Wallace Hawkins, of Dallas, Tex., on the brief), for appellee. Before PHILLIPS, BRATTON and IIUXMAN, Circuit Judges. HUXMAN, Circuit Judge. This is an appeal by the plaintiffs, herein called the appellants, from a judgment for the defendant below, Magnolia Petroleum Company, in an action for the cancellation of an oil and gas lease on a tract of land in Garvin County, Oklahoma. The decision turns upon whether the transaction in question constituted an offer to lease the premises and was withdrawn before acceptance, or whether it constituted an agreement which obligated the oil company to pay the consideration subject only to the examination of the title to determine its merchantability. The trial court found that Mrs. Sottong offered to sell the lease for a bonus of $50 per acre and that Magnolia, through its representative, Lanier, accepted the offer. The court further found that Mrs. Sottong told Lanier that it would be satisfactory with her for him to take the lease with him and send her the money as soon as he could check the title. Based on these findings, the court concluded as a matter of law that the lease had been executed and delivered to Magnolia with the understanding that it had the right to check the title before paying the consideration, and that it was bound to pay the consideration if the title was good. The only question before us is whether these findings are supported by substantial evidence. . Most of the facts are not in dispute. Mrs. Sottong was'the owner of the land in question. On December 2, 1936, she and her husband executed a ten-year oil and gas lease to F. M. Roland, which lease was assigned to Magnolia Petroleum Company, the defendant herein. This lease expired by its own terms December 2, 1946, unless the drilling of an oil and gas well was commenced prior thereto. In July, 1945, Mrs. Sottong wrote a letter to Magnolia, stating that she had received offers for a “top lease” on the tract of land in question and inquiring whether Magnolia would be interested in such a lease. On August 3, 1946, Magnolia replied, stating that since its lease had approximately 16 months to run, it would prefer to wait until a later date to consider a top lease, but that it would be glad to consider afty offer she might make. On January 29, 1946, Mrs. Sottong wrote Lanier, an agent for Magnolia, stating that she had been approached by F. A. Appling, who had made an offer for a top lease, and inquired if he represented Magnolia. She also stated that she had been approached by Fred Roland, who stated that he was representing Magnolia. After receiving this letter, on January 31, 1946, Lanier went to Tulsa and called on the Sottongs. Fie informed them that neither Appling nor Roland represented Magnolia. Mrs. Sottong stated that they had offered her $50 per acre for a top lease but that she preferred to lease to Magnolia. Lanier advised her that he did no.t have authority to pay $50 per acre, but would undertake to get authority from Magnolia and would call her the next morning. He left with the understanding that he would ascertain whether Magnolia would pay $50 per acre. The next morning he contacted the Dallas office and obtained authority to pay her $50 an acre for the new lease. On the morning of February 1, Mrs. Sottong called Lanier’s hotel and requested that he call her at a designated phone number. When he called her, she stated that she had talked to her sister, who thought that it was a good deal, and decided that she would not work that day but would stay home and close up the deal. After finishing his lunch that day, Lanier went to a public stenographer, had the lease prepared, and, accompanied by the stenographer, who was a notary, went to the Sottong residence, where he met her and her husband to execute the lease. He also prepared and took with him an escrow letter to the bank and later prepared a draft drawn on Magnolia for $8500, and took it out to her for her signature. When he presented the lease for signature, he told her that he did not know how she would want to handle it, whether she would want to send it to the bank for collection or take it to her bank, or that he would take the lease with him if that is what she wanted. Lanier testified that when he took the draft back for her signature, he told her that it would be necessary for her to sign the draft if she wanted to send it to the bank, and that she replied that she did not care, that he could handle it as he pleased, that he could take the lease with him or mail it to the bank. Lanier testified that he offered her $50 an acre and that she agreed to take it. On cross examination, Lanier testified that the only condition to the payment of the $8500 was satisfactory title. He testified further that he had agreed to pay her $8500; that when he left he considered that Magnolia owed her that sum if the title was good. Lanier testified that it was agreed that he would take the lease directly to Magnolia, and that Magnolia would pay her $8500 within ten days if the title was found merchantable, and that otherwise it would return the lease. Magnolia approved the title and within the ten-day period tendered the $8500 to Mrs. Sottong. However, on February 4, 1946, within the ten-day period, Mrs. Sottong notified the bank that she had withdrawn her offer to lease, and directed it to return the lease. On the same day she also sent a wire to Magnolia, in which she stated, “We retract our offer to lease to you our farm in * * She confirmed this wire by letter. Magnolia, however, retained and recorded the lease. A number of legal propositions are advanced by the parties in support of their respective contentions, which in our opinion are not necessary to be considered or decided, because the entire case turns upon the question whether the transaction constituted an offer to lease which was withdrawn before acceptance, or whether it constituted a binding agreement which obligated Magnolia to pay $8500 within ten days if the title was merchantable. Of course the law is well settled that as to contracts generally there can be a conditional delivery, and that the failure of the condition prevents the contract from taking effect. So, also, it may be conceded that whether there has been absolute or conditional delivery of a written contract may be shown by parol evidence. We deem it unnecessary to cite authorities in support of these well established principles. These were questions of fact upon which the decision depended in the court below. The trial court resolved them against appellants’ contentions. It found that Mrs. Sot-tong’s offer to take $50 per acre for the lease was accepted by Magnolia, subject only to approval i.f title; that a written lease was prepared and delivered to Magnolia; and that Magnolia tendered payment within the ten-day period. We have not set out Mrs. Sottong’s evidence in detail, because our function is limited to a scrutiny of the evidence which is urged in support of the court’s findings. Concerning her testimony it is sufficient to say that, considered in its entirety, it does not materially contradict the testimony of Lanier. Thus, she admitted telling Lanier that in her estimation this was more money than she thought she would ever get, and that she was delighted to get that amount of money; her son, John, testified that his mother said that, that was more money than she ever expected to see, and that she “was awfully glad about it.” Thus her own evidence supports tile conclusion that she was of the opinion that as a result of the negotiations she would receive $8500 from Magnolia. This implies more than a mere continuing offer on her part which was subject to acceptance or rejection. Finally, appellants contend that Lanier’s authority to buy the lease as the agent of Magnolia was required to be in writing to take the contract out of the statute of frauds. Woodworth v. Franklin, 85 Okl. 27, 204 P. 452, 27 A.L.R. 590, by the Oklahoma Supreme Court, is cited in support of this proposition. That case does not support appellants’ position. There the agent of the owner of the land executed the oil and gas lease and the court correctly held that his authority to execute an oil and gas lease must be in writing. It was not necessary for Lanier’s authority to offer to buy the lease to be in writing. When his offer was accepted and a valid written lease was executed and delivered, an enforceable contract resulted. The findings of the trial court are supported by substantial evidence and the judgment is therefore affirmed. While the date of this letter in the record is given as August 3, 1946, this apparently is an error, and no doubt August 3, 1945, was meant. This clearly appears from the fact that the new lease was executed on January 30, 1946. Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)? A. Trial (either jury or bench trial) B. Injunction or denial of injunction or stay of injunction C. Summary judgment or denial of summary judgment D. Guilty plea or denial of motion to withdraw plea E. Dismissal (include dismissal of petition for habeas corpus) F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict) G. Appeal of post settlement orders H. Not a final judgment: interlocutory appeal I. Not a final judgment: mandamus J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment K. Does not fit any of the above categories, but opinion mentions a "trial judge" L. Not applicable (e.g., decision below was by a federal administrative agency, tax court) Answer:
songer_appbus
0
What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. UNITED STATES of America v. Alvin LUCAS, Appellant. No. 73-2165. United States Court of Appeals, District of Columbia Circuit. May 23, 1975. Timothy N. Black, Washington, D. C. (appointed by this Court), was on the brief for appellant. Earl J. Silbert, U. S. Atty., John A. Terry and Julius A. Johnson, Asst. U. S. Attys., were on the brief for appellee. Before BAZELON, Chief Judge, and ROBINSON and MacKINNON, Circuit Judges. Opinion for the Court filed by Chief Judge BAZELON. BAZELON, Chief Judge. Appellant Lucas was found guilty of distributing a controlled substance in a jury trial on June 22, 1972. His trial counsel having taken ill, Lucas was represented by new counsel at the proceeding on October 10 at which he was sentenced to a term of 5 — 15 years. Represented by his own counsel, Lucas’ co-defendant, John Butler, was sentenced to a term of 3 — 9 years. Both defendants appealed their convictions. After oral argument in their consolidated appeals but prior to disposition, we were informed that Butler’s trial counsel was not a member of the bar of the District of Columbia. We thereupon remanded both cases “to allow the District Court to give appropriate consideration to the situation resulting from [the] improper representation of the appellant Butler.” The remand hearing was held on June 27, 1973. It was devoted entirely to matters concerning Butler’s representation; no inquiry was made into the adequacy of Lucas’ counsel. Finding that the fact that Butler’s trial counsel was not a member of the bar had not prejudiced either defendant, the District Judge denied both defendants’ motions for a new trial. Butler and Lucas again appealed. In an opinion issued on August 30, 1974, this court remanded Butler’s case for a new trial, United States v. Butler, 164 U.S.App.D.C. 151, 504 F.2d 220 (1974), finding that the representation he was given at trial failed to provide him with “the reasonably competent assistance of an attorney acting as his diligent conscientious advocate.” Id. at 223, quoting United States v. DeCoster, 159 U.S.App. D.C. 326, 487 F.2d 1197, 1202 (1973). Remaining were Lucas’ appeal as well as cross motions for summary affirmance and summary reversal. On September 23, 1974 we denied these motions but concluded that the record was inadequate for deciding the merits of Lucas’ claim that the representation given him had violated the standards set out in De-Coster, supra. Accordingly, we remanded the record to the District Court for supplementation. On that remand, the attorneys who represented Lucas both at trial and at sentencing testified. The District Court found in pertinent part that: “1. Defendant’s counsel was inadequately prepared for trial, particularly in failing (a) to seek to contact potentially important witnesses, '(b) to secure all information and documents in the possession of the law enforcement authorities which might have had a bearing on the defense of the case, and (c) to research or consider critical legal issues concerning the admissibility of important parts of both the defense and prosecution cases. * * * sfc * * 3. Defendant was virtually without the services of counsel from and after the time of his conviction, and substitute counsel who appeared on his behalf at sentencing was inadequately prepared for that purpose. 4. Defendant was prejudiced by the foregoing shortcomings in counsel’s performance, principally in that (a) at least one potentially important witness who might have had knowledge helpful to the defense was not interviewed, [and] (b) potentially important documentary evidence was not inspected by defense counsel . . . .” Based on its findings, the District Court concluded that “defendant did not, in connection with his trial or sentencing, receive the reasonably competent assistance of an attorney acting as his diligent conscientious advocate” and that since “the Government . . failed to meet its burden of proving the absence of prejudice to defendant from the failure of defense counsel adequately to perform their duties, defendant is entitled to a new trial with the reasonably competent assistance of counsel in his behalf.” Accordingly, the trial court requested that we remand the case to allow a new trial. This case well demonstrates the critical need for the trial court’s thorough consideration of a defendant’s ineffectiveness claims. In the absence of the inquiry conducted by the trial judge in this case, any attempt to resolve the ineffectiveness issue raised by Lucas would have been nothing more than a Speculative exploration into whether “rational explanations could be made for the apparent errors in the conduct of trial.” United States v. DeCoster, supra, 487 F.2d at 1204. However, “neither one judge’s surmise nor another’s doubt can take the place of proof.” Id. In the instant case, it was the remand hearing which enabled an informed determination to be made as to whether Lucas had been denied the effective assistance of counsel. The trial court having announced its intention to grant a motion by Lucas for a new trial, we remand the case for such action. . 21 U.S.C. § 841(a)(1). . Butler was found guilty of possessing a controlled substance with the intent to distribute it. 21 U.S.C. § 841(a)(2). . This is the same procedure that we adopted in DeCoster, supra. See 487 F.2d at 1201, 1204-05. . It is established that the constitutional right to the effective assistance of counsel extends to sentencing. United States v. Johnson, 155 U.S.App.D.C. 28, 475 F.2d 1297 (1973); Gadsden v. United States, 96 U.S.App.D.C. 162, 223 F.2d 627, 630 (1955). . Testimony at the hearing indicated that Lucas’ counsel at trial neglected to interview a woman who may have been an eyewitness to a critical part of the narcotics transaction at issue. Moreover, counsel’s failure to object to inadmissible hearsay testimony was apparently due to his failure to do adequate legal research on the admissibility question. Additionally, the substitute counsel who represented Lucas at sentencing never conferred with Lucas’ original trial counsel about the case nor did he secure from original trial counsel the government’s allocution paper that had been in his possession since the day of Lucas’ conviction. . The trial court was fully justified in so concluding. Apart from announcing a general standard of effectiveness, DeCoster articulates several specific duties owed by counsel to client. Inter alia, “[c]ounsel must conduct appropriate investigations, both factual and legal, to determine what matters of defense can be developed, . . [t]he investigation should always include efforts to secure information in the possession of the prosecution and law enforcement authorities ., [a]nd the duty to investigate also requires adequate legal research.” 487 F.2d at 1204. The court’s findings reflect failures by counsel in fulfilling each of these duties. . Some of the cases in which this court has remanded the record to allow further trial court exploration of the ineffectiveness issue include DeCoster, supra; United States v. Hurt, 72-2229 (remanded April 22, 1974); United States v. Simpson, D.C.Cir., 495 F.2d 1076 (remanded April 26, 1974). As in the instant case, these remand proceedings have on occasion led the trial judge to find that trial counsel was ineffective and that a new trial was indeed warranted. See, e. g., United States v. Simpson, supra. An ineffectiveness claim should, as a normal matter, first be raised in a new trial motion before the District Court. In DeCoster we indicated that “when a claim of ineffective assistance is contemplated, it should first be presented to the district court in a motion for a new trial. In such proceeding, evidence de-hors the record may be submitted by affidavit, and when necessary the district judge may order a hearing or otherwise allow counsel to respond.” 487 F.2d at 1204-05 (footnotes omitted). Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number. Answer:
songer_appel2_1_3
J
What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the second listed 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. SUBURBAN TRANSIT CORP. and H.A.M.L. Corporation, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Highway and Local Motor Freight Drivers Local No. 701, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Intervenor. UNITED TRANSPORTATION UNION, LODGE NO. 1589, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. Nos. 73-1377, 73-1442. United States Court of Appeals, Third Circuit. Argued Feb. 12, 1974. Decided May 23, 1974. Alfred J. Hill, Wilentz, Goldman & Spitzer, Perth Amboy, N. J., for petitioners in No. 73-1377. Robert M. Saltzstein and Jeffrey S.’ Dubin, Mirkin, Barre, Saltzstein & Gordon, P.C., Great Neck, N. Y., for petitioner in No. 73-1442. David Friedland, Jersey City, N. J., for intervenor in No. 73-1377. Peter G. Nash, Gen. Counsel, John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, William H. DuRoss, III, John M. Flynn, Attys., N. L. R. B., for respondent. OPINION OF THE COURT Before VAN DUSEN and ADAMS, Circuit Judges, and HUYETT, District Judge. VAN DUSEN, Circuit Judge. This case is before this court upon the petitions of Suburban Transit Corporation (“Suburban”), H.A.M.L. Corporation (“H.A.M.L.”), and United Transportation Union, Lodge No. 1589 (“UTU”) to review and set aside a decision and order of the National Labor Relations Board (hereinafter “NLRB” or “Board”) issued against Suburban and H.A.M.L. on May 4, 1973, and reported at 203 N.L.R.B. No. 69. The Board has cross-applied for enforcement of that order. This court has jurisdiction pursuant to § 10(e) and (f) of the National Labor Relations Act, as amended (hereinafter “Act”). 29 U.S.C. § 160(e) and (f). The unfair labor practice charges, which resulted in the Board’s order in this case, were filed by the Highway and Local Motor Freight Drivers, Local No. 701, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (“Teamsters”) in October and November of 1971. As amended and consolidated, the complaint filed by the Board under Section 10(b) of the Act, 29 U.S.C. § 160(b), alleged that Suburban violated (A) §§ 8(a)(1) and (2) of the Act by executing a new collective bargaining agreement with UTU while a question concerning representation existed, (B) §§ 8(a)(1) and (3) by virtue of the fact that said contract contained a union-security provision, (C) § 8(a)(1) by making threats to certain striking employees, and (D) §§ 8(a)(1) and (3) by discharging those employees. The complaint also alleged that H.A.M.L. violated (A) §§ 8(a)(1) and (2) by executing a contract with UTU at a time when UTU did not represent an uncoerced majority of H.A.M.L.’s employees and by assisting UTU in its organizing drive, (B) §§ 8(a)(1) and (3) by the inclusion of a union-security provision in said contract, and (C) §' 8(a)(1) by acts of surveillance of and assistance to union activities. On the basis of this complaint, the Board filed a petition for an injunction under § 10(j) of the Act on January 24, 1972. Thereafter, extensive hearings were conducted by the Administrative Law Judge, the transcript of which was forwarded to the district court and made a part of the injunction proceeding by agreement of the parties. Following oral argument and submission of briefs, the district court on July 26, 1972, rendered an opinion and order denying the Board’s application for injunctive relief. See Balicer v. Suburban Transit Corp., unpublished opinion of 7/28/72 (Civil No. 158-72, D. N.J.). The Administrative Law Judge issued his decision on November 27, 1972, in which he found that Suburban and H.A.M.L. violated §§ 8(a)(1), (2) and (3) of the-Act as charged in the complaint, and he incorporated a proposed order. On May 4, 1973, a three-member panel of the Board affirmed the findings and conclusions of the Administrative Law Judge and adopted his recommended order. I. Charges Against Suburban UTU has represented Suburban’s employees for approximately 30 years. In July 1971, UTU requested that bargaining for the terms of a new contract commence as the then current agreement was due to expire on September 14, 1971. In late August, Suburban employee Daniel Rava was elected chairman of UTU’s bargaining committee, which also included employees Peterson and Bowman. Although not officially members of the committee, Gerald McPhillips, a UTU international representative, and Austin Zechman, a UTU vice president, assisted the committee in its deliberations. Suburban was represented by Morris Lipschitz, officer, director and sole owner of Suburban, Lee Jacobs and Sidney Kuchin, the two other Suburban officers, and Ronnie Kohn, Suburban’s office manager. After a series of bargaining sessions, the parties reached accord on September 13 on a three-year agreement. On September 14 a ratification meeting was held at which the employees decisively rejected the proposed contract by a vote of 49 to 3, apparently because of its three-year term. Following this meeting, the UTU committeemen agreed to bargain for a shorter, two-year contract term. However, at the next bargaining session on September 24, Suburban ■ insisted upon a three-year contract, but offered to increase its initial wage offer. The subsequent ratification meeting, attended by about 30 Suburban employees, broke up in chaos when the term of the contract was announced and no ratification vote was taken. After the meeting, McPhillips met with Rava and Peterson, and they all agreed that they had not had a fair opportunity to present the package to the men and that they should meet with Suburban again. As early as July 1971, Rava and, at some time during that summer, several other employees, had become interested in the possibility of changing union representation from UTU to the Teamsters. Between July and September, Rava called the Teamsters on several occasions to explore avenues of having the Teamsters represent the Suburban employees. In early September, he and employee Manga met with Martin McDermott, a Teamsters international representative, at the Teamsters’ premises. McDermott agreed to check to see if there was a “no raid pact” with the UTU but warned that the Teamsters could be of no help until the contract expired. Thereafter, Rava called the Teamsters several times and was told by McDermott that there was not a “no raid pact” between the Teamsters and UTU. On the morning of September 15, Rava requested that Peterson meet him at the Teamsters’ premises, where they discussed with McDermott ways in which a change in union representation could be effected. During this meeting, McDermott gave Rava a decertification petition and some Teamsters’ membership cards, which Rava placed in the trunk of his car. Later that day, Peterson informed McPhillips of the meeting with McDermott. McPhillips then advised UTU vice-president Kenneth Moore of Rava’s contacts with the Teamsters, and Moore requested that McPhillips obtain further information before having Rava removed from his union office. On September 26, Rava gave the decertification petition and Teamsters’ authorization cards to Manga, who proceeded to solicit signatures. After obtaining signatures of more than 30% of Suburban’s employees, Manga filed the petition for decertifying UTU on September 29, and the Teamsters filed a representation petition the same day. Suburban received the petitions on October 2. On September 28, Suburban officials and the UTU bargaining committee met again and agreed that it would be useless to hold another membership meeting. The mediator suggested that a petition be drawn up and that members of the committee speak to each employee, and if a majority signed the petition, then the committee could sign the contract. Rava opposed the petition and suggested instead a mail ballot, which was finally agreed upon. That night, however, while Peterson was in a meeting with Zechman at the latter’s home, Moore called Zechman and told him that Rava was collaborating with the Teamsters and that he was taking steps to have Rava removed as chairman of the wage committee. Zechman began to suspect that Rava’s suggestion of the mail ballot was designed to cause further delay and, therefore, he and Peterson decided to proceed with a petition. The contract ratification petition was drawn up and circulated on October 1 by Peterson and another UTU official, Tom Alexander, and was returned to Zechman on October 2 with 51 signatures (out of the 61 employees constituting the unit of drivers). McPhillips contacted Suburban president Lipschitz and told him that the committee believed they had a majority and were prepared to sign a renewal agreement. The signatures on the petition were checked against the payroll forms and were found to be valid. Lipschitz agreed to sign the contract when he returned from a trip to California, and on October 14 the contract was executed. On the evening of October 26, a meeting was held at the Teamsters’ hall and a group of Suburban employees voted to strike, apparently to protest both the discharge of two workers because of an unrelated accident and the execution of the contract with UTU. The next day, and for a few days thereafter, a number of Suburban employees went out on strike and began picketing the company’s premises, with signs reading “Employees of Suburban Transit on Strike Unfair Labor Practices Local Teamsters Union No. 701.” The number of employees who picketed is disputed, estimates ranging from 25 to 46. At most only 17 employees worked on the first day of the strike. On October 29, Suburban wrote 34 letters to striking employees, stating that they would be suspended if they did not report for work on November 2. On November 1, Suburban obtained a temporary restraining order from the Superior Court of New Jersey. While most of the employees returned to work on November 2, 19 did not. Following an investigation conducted by Suburban, all but two of the 19 strikers were discharged. The Board’s conclusion that Suburban violated §§ 8(a)(1), (2), and (3) of the Act was based primarily on its finding that the decertification petition filed by Manga and the representation petition filed by the Teamsters (supported by authorization cards) raised a real question concerning representation and that, therefore, Suburban’s execution of a new contract with UTU, containing a union security provision, when Suburban had knowledge of those petitions, was an unfair labor practice under the doctrine of Midwest Piping & Supply Co., 63 N.L.R.B. 1060 (1945). The Board recognized that this finding conflicts with our decision in NLRB v. Swift & Co., 294 F.2d 285 (3d Cir. 1961), where this court held that the mere filing of a representation petition by a competing union does not create a real question of representation so as to prevent an employer from entering into an agreement with the previously certified union, but the Board felt constrained to follow its own law on this point. We, in turn, are constrained to follow Swift and, therefore, hold that the Board’s determination that a real question of representation existed at the time of the renewal agreement between Suburban and UTU is not supported by substantial evidence. See also NLRB v. Peter Paul, Inc., 467 F.2d 700, 702 (9th Cir. 1972); NLRB v. Midtown Service Co., 425 F.2d 665, 669 (2d Cir. 1970); NLRB v. North Electric Co., 296 F.2d 137, 139-140 (6th Cir. 1961); St. Louis Independent Packing Co. v. NLRB, 291 F.2d 700, 704 (7th Cir. 1961). As to the discharge of the 19 striking employees, the Board’s finding of a violation of §§ 8(a)(1) and (3) of the Act was based upon the premise that the strike was protected activity, despite the possible applicability of a no-strike clause in the bargaining agreement, because the Board found it was called, at least in part, to protest an unfair labor practice — i. e., the execution of the new agreement between Suburban and UTU. Since we have held that the evidence does not support the Board’s finding that this agreement constituted an unfair labor practice, its conclusion that the discharge of the strikers violated §§ 8(a)(1) and (3) must also be set aside and the case must be remanded to the Board for a determination as to whether the strike was protected activity in light of Article 13 of the bargaining agreement. Cf. Gateway Coal Co. v. United Mine Workers, 414 U.S. 368, 94 S.Ct. 629, 38 L.Ed.2d 583 (1974). II. Charges Against H.A.M.L. H.A.M.L. began operations in 1968, and until November 1971, its employees were not represented by a union. On November 1, H.A.M.L. employee Lang-don contacted the Teamsters’ representative McDermott to discuss organizing H.A.M.L. employees. On the evening of November 2, H.A.M.L. employees Coudray, Rayhon and Langdon met with McDermott and Rava, obtained Teamsters’ authorization cards from Mc-Dermott, and began soliciting signatures the following morning, November 3. Suburban’s former dispatcher, Harold Bien, testified that at 7:30 a. m. on November 3, H.A.M.L.’s manager, Patrick Kilcoyne, called on the telephone and told him that the Teamsters were organizing H.A.M.L.’s employees. Bien then told Zechman, who was present with Bien during the telephone conversation, what Kilcoyne had said, and Zechman allegedly replied, “[W]e’ll have to go down there and organize them.” Zechman then dictated UTU authorization cards and proceeded to Suburban’s office, where he duplicated them on Suburban office equipment. Shortly thereafter, he recruited H.A.M.L. employees Lobmayer, Alexander and Thomas to assist in the UTU campaign and began soliciting signatures in H.A.M.L.’s garage. Bien also testified that at about 11:30 that morning, he called Jack Flanagan, H.A.M.L.’s dispatcher, to request that drivers be made available for the New York City runs. According to Bien, Flanagan replied: “I am going to have to cut you a couple short. We are down here getting people signing cards.” Furthermore, H.A.M.L. employee Schorr testified that when he returned to the H.A.M.L. garage following his afternoon run, Flanagan asked him to see someone in the drivers’ room, and that when he went there, Lobmayer solicited his signature for a UTU authorization card. Later that afternoon, Lobmayer and the other UTU organizers determined they had a majority of employees signed up for UTU, having 40 signed authorization cards out of approximately 50 to 55 employees. They then notified Zechman, who in turn called H.A.M.L. vice president Kuchin and requested -recognition for UTU. At about 6 p. m., Kuchin called Kilcoyne and told him to be available. At about 7:30 p. m., Kuchin called the home of Suburban’s manager, Kohn, where a party was in progress, and told Kilcoyne to come to Suburban’s offices. Kilcoyne and his wife, who were among the guests, left the party with Kohn and went to Suburban’s offices. Awaiting them there were Zechman, Kuchin and H.A.M.L. president Jacobs, as well as the newly appointed UTU bargaining committee of Alexander, Bascocky, Lobmayer, and Fayda. Before their arrival, Kuchin had checked the UTU authorization cards and had identified 35 of the signatures. Having determined that UTU represented a majority of the employees, Kuchin extended recognition to it. At the beginning of the meeting, Zechman stated that “it was important to get the contract signed, negotiated and signed so we could get it in before the Teamsters, certainly.” Thereafter, using the October 14 Suburban-UTU contract as a model or guide, the parties negotiated between 8:00 p. m. and 1:30 a. m. As each portion of the contract was agreed upon, Mrs. Kilcoyne typed that part. Finally, at the conclusion of the session, the contract was signed by the H.A.M.L. officers and then was taken to a motel where UTU vice-president Moore was staying. After a brief discussion, Moore executed the contract for UTU. At work later that morning, Bien asked Kilcoyne how everything had gone in regard to the contract and Kilcoyne replied, “All signed, sealed and delivered.” On the basis of the foregoing facts, the Board concluded that H.A.M. L. violated § 8(a)(1), (2), and (3) of the Act by unlawfully assisting UTU in organizing its employees and then executing and maintaining a contract with UTU containing a union security provision. Although we accept, as supported by the evidence, the Board’s decision to credit the testimony of Bien where contradicted by that of Zechman and Flanagan, and its finding that Flanagan is a supervisor, we agree with H. A.M.L.’s contention that the facts found by the Board fail to establish that H.A. M.L. gave unlawful support or assistance to the UTU organizing drive. We are mindful that “where, as here, we are in agreement that substantial evidence supports the Board’s findings, our scope of review is limited to determining whether the Board’s factual inferences are so irrational they cannot stand, and whether, if they stand, they justify the Board’s order.” Department Store Food Corp. of Pennsylvania v. NLRB, 415 F.2d 74, 77 (3d Cir. 1969). Nevertheless, this contention merits close examination because the Board conceded that “the evidence of direct assistance in obtaining signatures on the mimeographed UTU ‘authorizations’ is not particularly strong,” and therefore could conclude only that H.A. M.L. “gave at least tacit approval to and benevolent observation of, the UTU organizers at HAML’s garage”. The law is clear, however, that cooperation between an employer and a union does not violate but rather accords with the policy of the Act. An unfair labor practice occurs only when the employer’s acts of assistance for a union interfere with the right of the employees fairly to choose their representative. And as one court has observed, “the line between ‘close cooperation’ and ‘interference with the freedom of choice of the employees’ is a delicate one and often difficult to maintain, particularly where rival unions are involved.” NLRB v. Hunter Outdoor Products, Inc., 440 F.2d 876, 880 (1st Cir. 1971). In its decision, the Board placed heavy emphasis on the haste with which H.A.M.L. recognized UTU as the representative of its employees and concluded a contract with it. In light of H.A.M.L.’s knowledge of the Teamsters’ drive, the Board adopted the opinion and, therefore, the reasoning of the Administrative Law Judge that such haste constituted an attempt by H.A.M.L. to favor UTU, and there is language in that opinion suggesting that this fact alone established an unlawful interference with the right of the employees to choose their own representative. We do not believe that by itself it is an unfair labor practice for an employer to grant quick recognition to a union and to negotiate a hasty contract where that union represents an uncoerced majority of the employees, even if the employer is motivated by the desire to freeze out a rival union. The issue before us is not the employer’s state of mind but the effect of its actions on the rights of the employees. Cf. International Ladies’ Garment Workers’ Union v. NLRB, 366 U.S. 731, 81 S.Ct. 1603, 6 L.Ed.2d 762 (1961). “So long as the acts of cooperation do not interfere with the freedom of choice of the employees, th,ere is no violation of the Act.” NLRB v. Keller Ladders Southern, Inc., 405 F.2d 663, 667 (5th Cir. 1968). Where a union has achieved the support of a majority of the employees without coercion or unlawful assistance on the part of the employer, its recognition by the employer and the negotiation and execution of a collective bargaining agreement are precisely the sort of cooperation that it is the policy of the Act to foster. Although we reject the Board’s suggestion that H.A.M.L.’s haste in recognizing UTU and negotiating a contract with it, without more, would violate the Act, the Board could reasonably infer from such haste that H.A.M.L. preferred to have its employees represented by UTU rather than the Teamsters, and could properly evaluate the other actions of the employer in the light of that preference in determining whether unlawful assistance had been given to the preferred union. See NLRB v. Keller Ladders Southern, Inc., supra at 667. Turning to the remaining evidence, we note that all but one of the actions attributed to H.A.M.L. provide only weak support for the Board’s finding of unlawful assistance. Kilcoyne’s telephone call to Bien on the morning of November 3 indicates that H.A.M.L. had knowledge of the Teamsters’ organizing campaign, but can hardly be interpreted as an attempt to encourage a counter-drive by UTU, especially since Zechman’s learning of what was said appears to have been fortuitous. Of greater weight is the fact that Zechman duplicated the UTU authorization cards at Suburban’s office and on.Suburban’s equipment; however, the inference that the management of Suburban “permitted” Zechman to do this is weakened by the absence of any evidence that it ever knew what Zechman was doing. Similarly, Flanagan’s telling Schorr that someone in the drivers’ room wanted to speak to him suggests a possibility of cooperation with the UTU drive, since that was where the UTU organizers were soliciting signatures. However, that fact can hardly support the Board’s conclusion that “[w]hen the drivers came in to the HAML facility, they were directed by chief dispatcher Flanagan to the UTU representatives....” Schorr seems to have been the only employee to testify that he was “directed” to the drivers’ room, and even if it can be reasonably inferred that Flanagan knew who wanted to see Schorr and for what purpose, there is no evidence that Flanagan’s actions had any coercive effect. We are left, then, with Flanagan’s statement to Bien on the morning of November 3: “I am going to have to cut you a couple short. We are down here getting people signing cards.” By itself that statement does not establish a violation of the Act, since the record demonstrates that the Teamsters was also soliciting signatures that day and thus any decision to curtail dispatching drivers would have benefited both unions. Moreover, even viewing Flanagan’s statement together with the weaker evidence of assistance discussed above and in light of H.A.M.L.’s preference for UTU, as shown by the haste with which the company recognized and negotiated with that union, we do not believe that this evidence establishes such direct support and assistance to UTU as to interfere with the employees’ freedom of choice. Thus, we conclude that H.A.M. L. did not violate § 8(a)(1), (2), and (3) of the Act in according recognition to UTU and in concluding a contract with it that contained a union security provision. The Board also found that H. A.M.L. committed an independent violation of § 8(a)(1) of the Act by requesting an employee to engage in surveillance of the union activities of other employees, and we hold that this finding is supported by substantial evidence on the record. H.A.M.L. employee Coudray testified that during the afternoon of November 5, Flanagan asked him to spy at a Teamsters’ meeting that night. Coudray went to the meeting and reported back to Flanagan the following morning, and was allegedly told to call Kilcoyne and tell him what had occurred. Kilcoyne testified that Coudray did in fact call him and tell him about the meeting, although he replied to Coudray that the information was unsolicited, that he really was not interested, and that he had given instructions to Flanagan not to get involved with the union business but to stay out of it and just do his own job. It is well established that surveillance of the type described by Coudray is conduct prohibited by § 8(a)(1) of the Act. See NLRB v. Historic Smithville Inn, 414 F.2d 1358, 1359-1360 (3d Cir. 1969), cert. denied, 397 U.S. 908, 90 S. Ct. 904, 25 L.Ed.2d 88 (1970); NLRB v. Fishman & Sons, 278 F.2d 792, 796 (3d Cir. 1960). However, H.A.M.L. argues that the Board erred in crediting Coudray’s testimony. After a careful review of the record, including the Administrative Law Judge’s discussion of this point, and in view of our extremely limited role in reviewing the credibility of Board witnesses, NLRB v. Local 420, Plumbers, supra at 328, we find this argument to be without merit. H.A.M.L. also contends that the finding by the Board that Flanagan is a supervisor is not supported by the evidence and that his actions were, therefore, not attributable to H.A.M.L. We disagree. Although there is some evidence suggesting employee status, it does not compel such a finding for the record also indicates that Flanagan is salaried, is the sole dispatcher for H.A. M.L.’s 55 drivers, has authority to assign overtime and determine whether to send drivers to Suburban from H.A.M.L. when requested by Suburban’s dispatchers or officials, is the person whom employees call when they are unable to work, occasionally adjusts minor grievances, and performs some of Manager Kilcoyne’s functions when the latter is absent. For the foregoing reasons, the petition for enforcement will be granted as to that part of the Board’s order concerning H.A.M.L.’s violation of § 8(a) (1) of the Act for having requested an employee to engage in surveillance of the union activities of other employees. As to all other matters, the petition for enforcement will be denied and the petition for review granted. The case will be remanded to the Board for further proceedings not inconsistent with this opinion. . Before the Board Suburban and H.A.M.L. attacked the order consolidating these cases, contending that the two companies do not constitute a single employer within the meaning of § 2(2) of the Act. However, the Board found that they did constitute a single employer and Suburban and H.A.M.L. now challenge that finding. It is well settled that this question is for the Board to determine and where businesses are under common ownership, control and management, they may be considered as a single employer. See NLRB v. Stowe Spinning Co., 336 U.S. 226, 227 n. 2, 69 S.Ct. 541, 93 L.Ed. 638 (1949); NLRB v. City Yellow Cab Co., 344 F.2d 575, 577-578 (6th Cir. 1965); NLRB v. National Shoes, Inc., 208 F.2d 688, 691 (2d Cir. 1953). The record in this case reveals that Suburban’s sole owner is Morris Lipschitz; its officers are Morris Lipschitz and his two sons-in-law, Lee Jacobs and Sidney Kuchin; and its directors are Morris Lipschitz, his wife, Lillian Lipschitz, and his nephew Herman Lipschitz. The owners and sole officers and directors of H.A.M.L, are Jacobs, Kuchin, and Herman Lipschitz. We therefore hold that there is substantial evidence to support the Board’s finding of a single employer. . “8. (a) It shall be an unfair labor practice for an employer— (1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title; (2) to dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it:... (3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization : . We note that in this opinion the district court found that there was not even “reasonable cause” to believe that Suburban and H.A.M.L. violated §§ 8(a)(1), (2), and (3). . UTU was formerly known as the Brotherhood of Railway Trainmen, Lodge No. 993. Suburban had a collective bargaining relationship with the Brotherhood starting in 1942. The last contract between the two parties ran from September 15, 1968, to September 14, 1971. At some time during the term of that contract, UTU became the successor to the Brotherhood and assumed and administered the aforesaid collective bargaining agreement, . In its findings of fact, the Board related Rava’s undisputed testimony that Morris Lipschitz told him that he should work with Peterson and Zechman to get the UTU petition signed, that if 80 or 90 per cent, of the employees signed it, “this would knock the Teamster petition right out of the box,” and that if Rava did help, he “would be in with the company one thousand per cent.” However, the Board did not rely on that testimony and at no point in its discussion of Suburban’s unfair labor practices did it allude to the possibility that the alleged statement by Lipschitz constituted unlawful employer interference in the employees’ selection of a bargaining agent. . Because of our holding on this issue, it is unnecessary for us to review the Board’s conclusion that Rava’s dual role as chief negotiator for UTU and collaborator in the Teamsters’ organizing effort was of no legal significance. Nevertheless, we wish to record our strong disapproval of the ethics of such activities by Rava while an official of the UTU, involving, as they appear to have done, the type of conflict of interest that makes it highly improbable that a union representative could fully carry out his responsibilities to his union and to his fellow employees. Of. § 501(a) of the Landrum-Griffin Act, 29 U.S.C. § 501(a) : “The officers, agents, shop stewards, and other representatives of a labor organization occupy positions of trust in relation to such organization and its members as a group. It is, therefore, the duty of each such person, taking into account the special problems and functions of a labor organization... to refrain from dealing with such organization as an adverse party or in behalf of an adverse party in any matter connected with his duties and from holding or acquiring any pecuniary or personal interest which conflicts with the interests of such organization See also Ford Motor Co. v. Huffman, 345 U.S. 330, 338, 73 S.Ct. 681, 97 L.Ed. 1048 (1953), where the Supreme Court stated: “The bargaining representative, whoever it may be, is responsible to, and owes complete loyalty to, the interests of all whom it represents.” . Article 13 covers the grievance procedure, and it is noted that subparagraph F contains this provision: “F. Recourse to outside tribunals will not be made by either party until the Grand Lodge of the Union has been advised and given a reasonable opportunity to intervene and dispose of or adjust the situation as the case may be. This, with the understanding that there shall be no authorized strike during such period the dispute is pending under the discussion with either the local lodge or the Grand Lodge.” In its preamble, the agreement also contains this language: “The purpose of this agreement is to create a definite understanding between Suburban and the Union regarding rates of pay and working conditions and to establish a plan for the prompt adjustment of grievances and all other disputes arising between Suburban and the Union.” . Zechman denied having any conversation with Bien on the morning of November 3 concerning the Teamsters’ organizational drive or Zechman’s intention to go down to H.A.M.L. to organize on behalf of UTU. Flanagan testified that although he did call Bien on November 3 (as he normally did several times a day), he merely told Bien of rumors that one of the unions was signing up men. H.A.M.L. argues that the Board should not have believed the contrary testimony of Bien, since he was biased against H.A.M.L., having been summarily dismissed from his job as dispatcher and was financially obligated to the Teamsters and Rava, having received an interest-free loan from them at about the same time he decided to testify for the Teamsters. While it thus appears that there may be reason to doubt Bien’s credibility, “it is not our task to resolve questions of credibility of those who testify at the Board hearings.” NLRB v. Local 420, Plumbers, 239 F.2d 327, 328 (3d Cir. 1956). After a careful review of the record, we conclude not to disregard the reasoned evaluation by the Administrative Law Judge of the credibility of the various witnesses. . See p. 89, infra. . There seems to be substantial evidence in the record to support the Board’s finding that H.A.M.L. was aware of the Teamsters’ organizing effort. H.A.M.L. appears correct that the Board erred in finding that Zechman told everyone present at the negotiating session that it was important to get the contract signed to beat out the Teamsters; Zechman’s testimony was that he made that statement not only to Fayda but to the “entire committee,” that is, the UTU bargaining committee, not H.A.M.L.’s representatives (898a — N.T. 1484). However, as we observed above, the Board could credit Bien’s testimony concerning his conversation with Kilcoyne about the Teamsters’ drive on the morning of November 3, and could reasonably infer from H.A.M.L.’s haste in recognizing UTU and executing a contract with it that H.A.M.L. knew of the Teamsters’ effort and was trying to thwart it. On the other hand, we do not know whether the Board would have made this finding if it had understood correctly Zechman’s testimony. . “The scenario of that night, [November 3] almost without more, indicates that HAML was exerting every effort to keep Teamsters from becoming the employees’ bargaining representative [29a] “This is not a straight Midwest Piping case, for the contract was executed before the Teamsters petition was filed, without any claim to represent the employees having been made by the Teamsters. But the law does not permit an employer, in circumstances such as these, to recognize one of two competing unions when the recognition is designed to keep the other union from obtaining representation rights. UTU’s role in the affair was not, of course, illegal. As Zechman said, UTU wanted a contract signed as quickly as possible for the express purpose of keeping the Teamsters from filing a petition. If UTU had won a legitimate race to achieve a majority among HAML’s employees, with the Teamsters never getting off the ground, then the race would really be to the swift (no pun intended). But the blatant haste by HAML in cooperating with UTU’s efforts to freeze out the Teamsters is just the kind of assistance the law prohibits.” [31a-32a] . In the context of the present argument, UTU 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_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. The POSTER EXCHANGE, INC., Appellant, v. PARAMOUNT FILM DIST. CORP. et al., Appellees. No. 21318. United States Court of Appeals Fifth Circuit. Jan. 22, 1965. Francis T. Anderson, Philadelphia, Pa., Nolan B. Harmon, Atlanta, Ga., for appellant. Robert S. Sams, Atlanta, Ga., Walter S. Beck, New York City, Tench C. Coxe, Troutman, Sams, Schroder & Lockerman, Atlanta, Ga., for appellees. Gambrell, Harlan, Russell & Moye, Atlanta, Ga., Phillips, Nizer, Benjamin, Krim & Ballon, New York City, for appellee National Screen Service Corp. Before WISDOM and GEWIN, Circuit Judges, and BREWSTER, District Judge. PER CURIAM. This is an appeal from a summary judgment which was entered against plaintiff-appellant in a private antitrust action seeking treble damages for an alleged violation of the Sherman Act. We have carefully reviewed the record and conclude that the trial court committed no error. The judgment is affirmed, D.C., 35 F.R.D. 558. . See Fed.R.Civ.P. 56(e); Dressier v. M. V. Sandpiper, 331 F.2d 130 (2 Cir. 1964). Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number. Answer:
sc_partywinning
B
What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the petitioning party (i.e., the plaintiff or the appellant) emerged victorious. The victory the Supreme Court provided the petitioning party may not have been total and complete (e.g., by vacating and remanding the matter rather than an unequivocal reversal), but the disposition is nonetheless a favorable one. Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. PICCIRILLO v. NEW YORK No. 97. Argued November 9, 1970 Decided January 25, 1971 ■ Malvine Nathanson argued the cause for petitioner. With her on the briefs was William, E. Hellerstein. Stanley M. Meyer argued the cause for respondent. With, him on the brief was Eugene Gold. Per Curiam The occasion for granting the writ in this case was to . resolve the important question whether it is necessary to accord “transactional” immunity, see Counselman v. Hitchcock, 142 U. S. 547 (1892), to compel a witness to give testimony before a state grand jury over his claim of the privilege against self-incrimination, or whether-mere “use” immunity suffices to that end, see, e. g., Murphy v. Waterfront Comm’n, 378 U. S. 52 (1964); Uniformed Sanitation Mén Assn. v. Commissioner of Sanitation of the City of New York, 426 F. 2d 619 (CA2 1970). After considering the briefs and oral argument's of the parties on this writ, we have reached the conclusion that the decision of the New York Court of Appeals in Gold v. Menna, 25 N. Y. 2d 475, 255 N. E. 2d 235 (1969), which makes clear that transactional immunity is required in New York and' also indicates that such' court's earlier decision in the case before us, People v. La Bello, 24 N. Y. 2d 598, 249 N. E. 2d 412 (1969), may have rested on that premise, makes this case an inappropriate vehicle for deciding a question of such far-reaching importance. With the intervening decision in Gold, no controversy any longer exists between the parties as to the question which impelled us to grant the writ: whether, in the circumstances involved in this case, Piccirillo was entitled to “use” or “transactional” immunity. While it is true that, technically speaking, issues remain in the case 'concerning the kind of immunity required by federal law and, if" it be “transactional” rather than “use” immunity in such a case as this, the proper scope of such immunity, both issues arise only against the sterile background of agreement between the parties that Piccirillo is entitled to. “transactional’’ immunity under state law. Thus, our determination upon the fundamental constitutional question underlying this case would be in no sense necessary to. its resolution in this instance. In this posture of affairs, we conclude that the writ of certiorari should be dismissed as improvidently granted. It is so orderéd. Mk. Justice Black dissents from the dismissal of this writ as improvidently granted. He would vacate the judgment below and remand the case to the New York Court of Appeals for reconsideration in light of its later opinion in Gold v. Menna, 25 N. Y. 2d 475, 255 N. E. 2d 235. 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_procedur
A
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant. SHEA, S & M Ball Company and Seaboard Fire & Marine Insurance Company, Petitioners, v. DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR and Betty M. Holden, Respondents. No. 90-1436. United States Court of Appeals, District of Columbia Circuit. Argued March 18, 1991. Decided April 9, 1991. As Amended April 16, 1991. John C. Lynch, with whom Alexander W. Whitaker was on the brief, for petitioners. Peter J. Vangsnes, with whom James A. Mannino was on the brief, for respondent Betty M. Holden. Samuel J. Oshinsky, Atty., Dept, of Labor, with whom Carol A. De Deo, Associate Sol., and Janet R. Dunlop were on the brief, for respondent Director, Office of Workers’ Compensation Programs. Before WALD, RUTH BADER GINSBURG and THOMAS, Circuit Judges. Opinion for the Court filed by Circuit Judge WALD. WALD, Circuit Judge: The District of Columbia Workmen’s Compensation Act of 1928 (“1928 Act”), D.C.Code § 36-501, et seq., (1973), was repealed by the District of Columbia Workers’ Compensation Act of 1979 (“1979 Act”), D.C.Code § 36-301 et seq. (1988 Repl.), but continues to govern claims arising from injuries that occurred prior to its repeal. The issue in this case is whether the 1928 Act gives the Department of Labor (“DOL”) jurisdiction to award death benefits to the widow of an employee who was injured while the 1928 Act was in effect, but who died of causes unrelated to his employment injuries after the 1979 Act went into effect. The Benefits Review Board (“Board”) held that it had jurisdiction and awarded the death benefits. Holden v. Shea, S & M Ball Co., BRB No. 87-1391, slip op. (Jan. 29, 1990). For the reasons discussed below, we deny the petition for review filed by the employer and its insurer, and we affirm the decision of the Board. I. In 1928 Congress, acting as legislative authority for the District of Columbia, enacted the District of Columbia Workmen’s Compensation Act of 1928, which made the provisions of the Longshore and Harbor Workers’ Compensation Act (“LHWCA”), 33 U.S.C. § 901 et seq., applicable to private sector employees in the District. Congress also provided that the 1928 Act would be administered by the Department of Labor, with review of administrative decisions in this court. See Railco Multi-Construction Co. v. Gardner, 564 A.2d 1167, 1170 (D.C.1989). However, after Congress granted home rule to the District, the D.C. Council repealed the 1928 Act and enacted the District of Columbia Workers’ Compensation Act of 1979, which “narrowed the scope of coverage and lowered the level of benefits available to injured workers.” Id. at 1171. The 1979 Act is administered by the District of Columbia Department of Employment Services (“DOES”), with judicial review of administrative decisions in the D.C. Court of Appeals. Id. Two additional facts about the enactment of the 1979 Act are directly relevant to this case. First, although the 1928 Act provided a death benefit to the spouse of a permanently disabled worker whose death was unrelated to the employment injury, 33 U.S.C. § 909 (1982), the 1979 Act provides a death benefit only if the employment injury causes the employee’s death. D.C. Code § 36-309 (1988 Repl). Second, “[notwithstanding its repeal, the 1928 Act remains in force under the general savings statute, 1 U.S.C. § 109 (1982), ‘for the sole purpose of preserving the provisions of the [LHWCA], as they existed in 1982, for the benefit of employees whose claims are derived from injuries occurring before the [1979] Act became law.’ ” Railco Multi-Construction Co. v. Gardner, 902 F.2d 71, 73-74 (D.C.Cir.1990) (quoting Keener v. Washington Metropolitan Area Transit Authority, 800 F.2d 1173, 1175 (D.C.Cir.1986), cert. denied 480 U.S. 918, 107 S.Ct. 1375, 94 L.Ed.2d 690 (1987)). In contrast to that complex legal background, the facts of this case are simple and uncontested. Betty Holden, the claimant, is the widow of Joseph Holden. Mr. Holden, who was injured in the course of his employment in the District of Columbia in 1974 and became permanently disabled in 1975, received disability benefits under the 1928 Act until he died on November 18, 1986, of causes unrelated to his employment injury. After her husband’s death, Mrs. Holden filed a claim for death benefits under the 1928 Act with the DOL. In May, 1987, the deputy commissioner awarded the death benefits to Mrs. Holden. On appeal to the Board, the employer claimed that the DOL lacked subject matter jurisdiction over the case because the 1928 Act had been repealed prior to Mr. Holden’s death. The Board began its analysis by stating that it had previously rejected this argument in Lynch v. Washington Metropolitan Area Transit Authority, 22 Ben.Rev.Bd.Serv. (MB) 351 (1980), a case with similar facts. Holden at slip op. 2. Nevertheless, the Board did not rely on Lynch in this case because it believed that the rationale of Lynch had been undercut by our decision in Railco Multi-Construction Co. v. Gardner, 902 F.2d 71 (D.C.Cir.1990). Holden, slip op. at 3. The question in Gardner was whether the 1928 Act or 1979 Act covers the claim for disability benefits of an employee who was exposed to injurious stimuli prior to July 26, 1982 (the effective date of the 1979 Act) but whose injury did not become manifest until after that date. Uncertain about how to answer this question of local law, we certified the question to the D.C. Court of Appeals. In response, the D.C. Court of Appeals adopted the “manifestation rule” and held that an injury occurs when the employee’s injury becomes manifest. Gardner, 564 A.2d at 1172-73. Because the 1979 Act applies to injuries that occur on or after July 26, 1982, the court held that the 1979 Act applies if the injury becomes manifest after that date. Id. at 1173-74 & n. 21. The court recognized, however, that its holding might create a coverage “gap” that would deprive some injured employees of coverage under any workers’ compensation act. In order to avoid depriving an injured employee of any workers’ compensation coverage, the court also held that the 1928 Act should be extended to cover an injured employee who falls within the coverage gap. Id. at 1175-76. After the District of Columbia Court of Appeals answered the question on certification, we reaffirmed that the 1979 Act applies to claims derived from injuries occurring after July 26, 1982, and that an injury is deemed to occur when it becomes manifest. Gardner, 902 F.2d at 72-74. We therefore held that the DOL regulation, which adopted the “exposure rule” by providing that the 1928 Act applies to all injuries arising out of “employment events” that occurred before July 28, 1982, must “fall in light of its rejection by the District of Columbia Court of Appeals.” Id. at 75. Apparently believing that our explicit rejection of the DOL exposure rule precluded it from relying on Lynch to find subject matter jurisdiction under the 1928 Act, the Board in this case based its claim of jurisdiction on Gardner instead. Holden, slip op. at 4. As required by Gardner, the Board considered whether Mr. Holden’s death was covered by any workers’ compensation act. The 1982 Act did not cover Mr. Holden’s death, the Board found, because Mr. Holden was not employed in the District after July 26, 1982. Holden, slip op. at 5. Because Mr. Holden’s injury occurred in Washington, D.C., the Board also found that his death was not covered under any other workers’ compensation act. Therefore, the Board concluded, “the 1928 Act applies to fill the gap [in coverage] in this case,” just as it had in Gardner. Id. This petition for review followed. II. Petitioners raise two objections to the Board’s decision. First, they contend that the Board did not have jurisdiction over Mrs. Holden’s claim because it arises under the 1979 Act. Second, they allege that Gardner is inapposite and does not “extend” the 1928 Act to cover Mrs. Holden’s claim. Although respondents Mrs. Holden and the Director of the Office of Workers’ Compensation Programs (“Director”) argue that Gardner does apply by analogy and thus the Board can be affirmed for the reasons explained in its opinion, they also argue that the Board did not need to reach this issue because Mrs. Holden’s claim is clearly rooted in the 1928 Act itself. In their view, no “extension” of the 1928 Act was needed to cover her claim. For the reasons discussed below, we agree with respondents that Mrs. Holden’s claim arises under the 1928 Act itself, and therefore deny the petition for review. The question of whether the 1928 Act or the 1979 Act applies in this case is one of local law; accordingly, we look to the District of Columbia precedent and regulations for guidance. See Gardner, 902 F.2d at 72. The District of Columbia Court of Appeals has held that “a worker injured before [July 26, 1982] ha[s] no rights under the [1979] act, as such an injury was then still covered by the 1928 Act, and compens-ability depends on its provisions.” O’Connell v. Maryland Steel Erectors, Inc., 495 A.2d 1134, 1141 (D.C.1985), cert. denied, 475 U.S. 1066, 106 S.Ct. 1378, 89 L.Ed.2d 603 (1986); see also Keener, 800 F.2d at 1175 (the 1928 Act remains in effect, under the general savings statute, “for the benefit of employees whose claims are derived from injuries occurring before the [1979] Act became law”). In addition, the District of Columbia regulations provide that the 1979 Act applies to “injuries which occur on or after July 26, 1982_” D.C.Reg. § 3602.1, 29 D.C.Reg. 5540 (Dec. 17, 1982). Taken together, the precedent and regulations indicate that the 1928 Act covers claims arising from injuries that occurred before July 26, 1982, while the 1979 Act covers claims arising from injuries occurring on or after that date. Recognizing that the precedent establishes that the 1928 Act covers claims arising from “injuries” that occurred before July 26, 1982, petitioners contend that Mrs. Holden’s “injury” occurred when her husband died on November 19, 1986. But we can find no support for petitioners’ assertion that “in a claim for death benefits, the injury occurs when the spouse dies and not when the spouse was injured.” Instead, the cases cited in petitioners’ brief establish only that a death benefits claim is a separate cause of action from the worker’s disability claim that does not arise until the death of the worker. See, e.g., Nacirema Operating Co. v. Lynn, 577 F.2d 852 (3d Cir.1978), cert. denied, 439 U.S. 1069, 99 S.Ct. 836, 59 L.Ed.2d 34 (1979); Norfolk, Baltimore and Carolina Lines, Inc. ¶. Director, Office of Workers’ Compensation Programs, 539 F.2d 378 (4th Cir.1976), cert. denied, 429 U.S. 1078, 97 S.Ct. 823, 50 L.Ed.2d 798 (1977). But the District of Columbia precedent discussed above indicates that, for purposes of determining coverage under the two Acts, the relevant question is not when the cause of action arose, but when the injury giving rise to that cause of action occurred. In our view, the statutory language of both Acts and the precedent establish that a death benefits claim derives from the worker’s employment-related injury. Section 9 of the 1928 Act, for example, provides a death benefit “[i]f the injury causes death, or if the employee who sustains permanent total disability due to the injury thereafter dies from causes other than the injury.” 33 U.S.C. § 909 (1982). Similarly, § 36-309 of the 1979 Act provides a death benefit “[i]f the injury causes death....” D.C.Code § 36-309 (1988 Repl.). This language indicates that the death benefits claim is an offspring of the employment injury: in the absence of an employment-related injury, a worker’s death is not covered under either Act. In addition, as the Board recognized in Lynch, there is precedent under the LHWCA supporting respondents’ claim that a claim for death benefits, like a claim for disability benefits, is rooted in the employment injury. Lynch, 22 Ben.Rev.Bd. Serv. at 354. In Pennsylvania National Mutual Casualty Insurance Co. v. Spence, 591 F.2d 985, 987 (4th Cir.), cert. denied, 444 U.S. 963, 100 S.Ct. 448, 62 L.Ed.2d 375 (1979), the Fourth Circuit explained that although the LHWCA provides for two separate rights and types of recovery, the beneficiaries of which are different,] ... both types of recovery derive their basis from the same event, i.e., the employee’s injury. It is that event which gives both a right to compensation payments under § 908 and a right to death benefits under § 909. Neither right of action, whether for compensation payments or for death benefits, exists apart from the critical fact of injury; each is dependent for its basis on the injury. It is inaccurate, therefore, to state that the right to the death benefits has its origin solely in the event of death; the real source of the liability for such benefits under the Act traces directly back to the injury itself. See also Travelers Insurance Co. v. Marshall, 634 F.2d 843 (5th Cir.1981). Consequently, the Board in Lynch correctly recognized that the employment injury “forms the basis for the claim for death benefits.” Lynch, 22 Ben.Rev.Bd.Serv. at 354. Thus, we end up agreeing with respondents that a claim for death benefits, like a claim for disability benefits, is derivative of the employment injury itself. Precedent establishes that the 1928 Act remains in effect for claims derived from injuries that occurred before July 26, 1982. Because Mr. Holden was injured during his employment in the District in 1974, we hold that Mrs. Holden’s claim for death benefits is covered by the 1928 Act. We therefore deny the petition for review and affirm the Board’s award of death benefits to Mrs. Holden. III. In sum, because Mr. Holden was injured before July 26,1982, his injury was covered by the 1928 Act, and he had no rights under the 1979 Act. In addition, Mr. Holden’s employment injury established the basis for Mrs. Holden’s death benefits claim. Thus her claim for death benefits, like his claim for disability benefits, arises from the employment injury and is covered by the 1928 Act. Accordingly, we hold that the Board had jurisdiction and properly awarded death benefits to Mrs. Holden, and we deny the petition for review. It is so ordered. . In 1984, however, Congress removed this provision from the LHWCA. See Longshore and Harbor Workers’ Compensation Act Amendments of 1984, Pub.L. No. 98-426, 98 Stat. 1639 (1984). Thus, the LHWCA, like the 1979 District of Columbia Workers’ Compensation Act, currently provides a death benefit to the employee’s surviving spouse only if the employment injury causes the employee’s death. See 33 U.S.C. § 909 (1989). . In awarding the death benefit to the widow in Lynch, the Board first held that "although a claim for death benefits is a separate cause of action which does not arise until the employee's death, the liability of the employer for death benefits is fixed at the time of injury rather than at the time of death.” Lynch, 22 Ben.Rev.Bd. Serv. at 354. Thus although the decedent's death occurred after the repeal of the 1928 Act, the claim for death benefits was governed by the 1928 Act because “it is decedent's permanent total disability that forms the basis of the claim for death benefits.” Id. In addition, the Board found further support for its holding in a DOL regulation stating that the 1928 Act applies to claims "for injuries or deaths based on employment events that occurred prior to July 26, 1982, the effective date of the [1979 Act].” Id. at 354 & n. 2 (citing 20 C.F.R. § 701.101(b)). . For example, because the 1979 Act narrowed the subject matter jurisdiction of the D.C. worker’s compensation act, an employee could have been within the subject matter jurisdiction of the 1928 Act when he was exposed to the injurious stimuli, but outside the subject matter jurisdiction of either the 1979 Act or any other workers’ compensation act when his injury became manifest. See Gardner, 564 A.2d at 1174. An employee who worked in the District only prior to July 26, 1982, but whose injury manifested itself after that date, could also be caught in the coverage gap: he would not be covered under the 1928 Act (because he was not "injured" while it was in effect) or the 1979 Act (because he was not employed in the District after it went into effect). See Gardner, 902 F.2d at 75-76. . We are aware of the well-established principle of administrative law that “[t]he grounds upon which an administrative order must be judged are those upon which the record discloses that its action was based." SEC v. Chenery Corp., 318 U.S. 80, 87, 63 S.Ct. 454, 459, 87 L.Ed. 626 (1943). But that statement “is to be understood with a qualification; the order must be judged upon the grounds upon which action was based, unless the appellate court concludes that the decision 'already made ... should properly be based on another ground within the power of the appellate court to formulate.’ ” Chae-Sik Lee v. Kennedy, 294 F.2d 231, 234 (D.C.Cir.), cert. denied sub nont., Lee v. Kennedy, 368 U.S. 926, 82 S.Ct. 362, 7 L.Ed.2d 190 (1961) (quoting Chenery, 318 U.S. at 88, 63 S.Ct. at 459). That qualification covers this case because the validity of the Benefit Review Board’s decision does not depend upon a factual determination or a policy judgment that it alone is authorized to make. Furthermore, “the Benefits Review Board is not a policymaking agency; its interpretation of the LHWCA thus is not entitled to any special deference from the courts." Potomac Electric Power Co. v. Director, Office of Workers’ Compensation Programs, 449 U.S. 268, 278 n. 18, 101 S.Ct. 509, 515 n. 18, 66 L.Ed.2d 446 (1980). Therefore, because the issue in this case is "within the power of the appellate court to formulate,” we may affirm for reasons other than those stated by the Board. See Chenery, 318 U.S. at 88, 63 S.Ct. at 459. We are mindful, moreover, that the Board displaced its Lynch precedent in the belief that Gardner so required. Having clarified that Gardner and Lynch are harmonious decisions, we think it evident that our view and the Board’s now coincide. . In so holding, we reject petitioners’ assertion that even if the Board had jurisdiction, it should not have awarded the death benefit because at the time of Mr. Holden's death, the LHWCA, as amended in 1984, provided a death benefit only if the employee’s death was caused by the employment injury. See 33 U.S.C. § 909 (1986). Petitioners’ argument is foreclosed by Keener, in which this court held that because "the repeal of the 1928 Act had the effect of severing the application of the [LHWCA] to the District of Columbia in 1982, the subsequent 1984 amendments were without effect on the law of the District." 800 F.2d at 1175. As a result, claims arising under the 1928 Act are governed by the 1928 Act as it existed when the 1979 Act went into effect on July 26, 1982. Id. Because, at the time of repeal, the 1928 Act provided a death benefit for the spouse of a permanently disabled employee who died from causes unrelated to the employment injury, Mrs. Holden is entitled to a death benefit under the 1928 Act. Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
sc_jurisdiction
D
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. WOODS, HOUSING EXPEDITER, v. HILLS. No. 437. Argued January 14, 1948. Decided May 10, 1948. John R. Benney argued the cause for the Administrator. With him on the brief were Solicitor General Perlman, Ed Dupree and Nathan Siegel. By special leave of Court, George D. Rathbun, pro hac vice, argued the cause and filed a brief for Hills. Mr. Chief Justice Vinson delivered the opinion of the Court. In this case, the Court of Appeals for the Tenth Circuit has certified questions of law concerning which it asks instructions for the proper decision of the cause pending in that court. Judicial Code, § 239; 28 U. S. C. § 346. The certificate states that this is an action brought by the Administrator for treble damages and for an'injunction under § 205 of the Emergency Price Control Act and under the Rent Regulation for Housing. Hills, the defendant below, remodeled apartments located in a Defense Rental Area, subject to the Rent Regulations, and duly registered them. Thereafter, on December 17,1943, the maximum rents were reduced by the Area Rent Director pursuant to § 5 (c) of the Regulation; and on March 7, 1945, the Rent Director issued an order further reducing the maximum rents. On trial in the District Court without a jury, the parties stipulated that the only issue was the validity of the second order. The District Court entered judgment for the defendant on October 29, 1946, holding that the burden was on the Administrator to establish the validity of the second order and that he had failed to introduce proof establishing its validity. At the time the District Court entered its judgment, exclusive jurisdiction to pass on the validity of a regulation or order issued by the Administrator was vested in the Emergency Court of Appeals and in this Court upon review of judgments and orders of the Emergency Court. § 204 (d), 50 U. S. C. A. App. § 924 (d). However, the appeal by the Administrator from the judgment of the District Court was not submitted in the Circuit Court of Appeals until September 10, 1947, and the Emergency Price Control Act expired by its terms on June 30, 1947. § 1 (b), 50 U. S. C. A. App. § 901 (b). The questions certified are as follows: “(1) On remand, will the District Court of the United States for the District of Kansas, First Division, have jurisdiction to determine the validity of the second rent order and should we direct the District Court to pass on the validity of such rent order? “(2) If the first question is answered in the negative, does the Emergency Court of Appeals still have jurisdiction to determine the validity of the second rent order? “(3) If the second question is answered in the affirmative, and this court remands the cause with directions to enter judgment as prayed for against Hills, may Hills, under Sec. 204 (e) of the Emergency Price Control Act of 1942, as amended (50 U. S. C. A. App., Sec. 924-(e)), apply to the District Court for leave to file in the Emergency Court of Appeals a complaint against the Administrator, setting forth objections to the validity of the second rent order, and, upon proper petition and showing, obtain the relief provided for in Sec. 204 (e), and should we so direct on remand?” There can be no doubt that the exclusive jurisdiction conferred on the Emergency Court of Appeals by § 204 (d) precluded the District Court in 1946 from determining the validity of the individual rent order even though the defense to the action brought there was based on the alleged invalidity of the order. The Emergency Price Control Act was to terminate on June 30, 1947. Section 1 (b), which fixed that date, expressly provides that “as to offenses committed, or rights or liabilities incurred, prior to such termination date, the provisions of this Act and such regulations, orders, price schedules, and requirements shall be treated as still remaining in force for the purpose of sustaining any proper suit, action, or prosecution with respect to any such right, liability, or offense.” 56 Stat. 24. Since the offense complained of in the case at bar occurred before the termination date, § 1 (b) would apply and the Emergency Court of Appeals would still have exclusive jurisdiction to pass on the validity of the second rent order, if additional prerequisites set forth in § 204 (e) (1) of the statute were satisfied. Jurisdiction of the Emergency Court of Appeals over any complaint arises, pursuant to § 204 (e) (1), when the court in which a civil or criminal enforcement proceeding is pending has granted the defendant leave to file in the Emergency Court of Appeals a complaint setting forth objections to the validity of any provision which the defendant is alleged to have violated, and the defendant has duly filed such a complaint. Prior to a 1947 amendment, § 204 (e) (1) provided that “Within thirty days after arraignment, or such additional time as the court may allow for good cause shown, in any criminal proceeding, and within five days after judgment in any civil or criminal proceeding, brought pursuant to section 205 of this Act or section 37 of the Criminal Code, involving alleged violation of any provision of any regulation or order issued under section 2 or of any price schedule effective in accordance with the provisions of section 206, the defendant may apply to the court in which the proceeding is pending for leave to file in the Emergency Court of Appeals a complaint against the Administrator setting forth objections to the validity of any provision which the defendant is alleged to have violated or conspired to violate. The court in which the proceeding is pending shall grant such leave with respect to any objection which it finds is made in good faith and with respect to which it finds there is reasonable and substantial excuse for the defendant’s failure to present such objection in a protest filed in accordance with section 203 (a). Upon the filing of a complaint pursuant to and within thirty days from the granting of such leave, the Emergency Court of Appeals shall have jurisdiction to enjoin or set aside in whole or in part the provision of the regulation, order, or price schedule complained of or to dismiss the complaint. . . .” 59 Stat. 308. However, the Supplemental Appropriation Act, 1948, approved July 30, 1947, amended § 204 (e) by striking out the first sentence of the foregoing provision and substituting the following: “Within sixty days after the date of enactment of this amendment, or within sixty days after arraignment in any criminal proceedings and within sixty days after commencement of any civil proceedings brought pursuant to section 205 of this Act or section 37 of the Criminal Code, involving alleged violation of any provision of any regulation or order issued under section 2 or alleged violation of any price schedule effective in accordance with the provisions of section 206 with respect to which responsibility was transferred to the Department of Commerce by Executive Order 9841, the defendant may apply to the court in which the proceeding is pending for leave to file in the Emergency Court of Appeals a complaint against the Administrator setting forth objections to the validity of any provision which the defendant is alleged to have violated or conspired to violate.” 61 Stat. 619. Since responsibility for functions with respect to rent control was transferred by Executive Order 9841 to the Housing Expediter rather than to the Department of Commerce, the necessary effect of the foregoing amendment is to eliminate entirely the statutory right the defendant in the present case previously had to apply to the District Court for leave to file a complaint in the Emergency Court of Appeals. As a corollary, the latter court can no longer acquire jurisdiction pursuant to § 204 (e) over any complaint which defendant may desire to file with it to contest the validity of the second rent order. We may now consider what effect the 1947 amendment, thus viewed, has upon the “exclusive jurisdiction” provision in § 204 (d), which was preserved by the saving clause of § 1 (b). If elimination of the complaint procedure of § 204 (e) as a remedy for those seeking to challenge rent orders meant the elimination of all provision for review by the Emergency Court of Appeals, it might be argued that preservation of the ban imposed by § 204 (d) on district court adjudication of the validity of rent orders would be a denial of due process to a defendant charged with a violation of an order. However, the 1947 amendment left unimpaired the provision in § 203 (a) for review of rent orders by filing protests with the Administrator (i. e., the Housing Expediter, as transferee of the Administrator’s rent control functions). A denial of such a protest may be reviewed in the Emergency Court of Appeals by filing a complaint pursuant to § 204 (a). Prior to an amendment added by the Stabilization Extension Act of 1944, protests could be filed under § 203 (a) only within a period of sixty days after the issuance of the regulation or order sought to be challenged. Under the 1944 amendment, which is preserved unchanged for rent orders, this period was extended so that protests can be filed “At any time after the issuance” of the regulation or order, although the 1947 amendment expressly takes cognizance of the right of the United States or any officer thereof to dismiss any protest under § 203 on the ground of laches. Thus, it appears that the Emergency Court of Appeals may still be able to acquire jurisdiction to review rent orders, issued under the Price Control Act, by means of the protest and complaint procedure of §§ 203 (a) and 204 (a). Accordingly, the exclusive jurisdiction provision in § 204 (d) is not a meaningless anomaly so far as review of rent control orders is concerned, and it remains as substantial a barrier to review of the second rent order by the District Court as it was held to be in Yakus v. United States, 321 U. S. 414 (1944). There this Court ruled that defendants could not attack the validity of price regulations in a prosecution in a District Court even though the Emergency Price Control Act as then drawn made no provision for review by the complaint procedure later set up under § 204 (e) (and now abandoned so far as rent orders are concerned). The only judicial review then available required as a preliminary the filing of a protest to the Administrator under § 203 (a) within sixty days after the promulgation of the order or regulation. That statutory review procedure, whose constitutionality was upheld in the Yakus case, is still preserved to defendants charged with violations of rent orders issued under the Emergency Price Control Act of 1942. If anything, the judicial review still available to such defendants is even broader than the procedure sustained in the Yakus case, since the sixty-day limitation on the filing of protests no longer applies to rent orders. In view of the foregoing, we answer question (1) in the negative. In answer to question (2), the Emergency Court of Appeals no longer has jurisdiction pursuant to § 204 (e) to determine the validity of the second rent order. As amended, 50 U. S. C. A. App. §§ 901, 925. As amended, 8 Fed. Reg. 7322. “. . . The Emergency Court of Appeals, and the Supreme Court upon review of judgments and orders of the Emergency Court of Appeals, shall have exclusive jurisdiction to determine the validity of any regulation or order issued under section 2, of any price schedule effective in accordance with the provisions of section 206, and of any provision of any such regulation, order, or price schedule. Except as provided in this section, no court, Federal, State, or Territorial, shall have jurisdiction or power to consider the validity of any such regulation, order, or price schedule, or to stay, restrain, enjoin, or set aside, in whole or in part, any provisions of this Act authorizing the issuance of such regulations or orders, or making effective any such price schedule, or any provision of any such regulation, order, or price schedule, or to restrain or enjoin the enforcement of any such provision.” 56 Stat. 33. See Bowles v. Willingham, 321 U. S. 503, 510-511, 521 (1944); Yakus v. United States, 321 U. S. 414 (1944). Cf. 150 East 47th Street Corp. v. Porter, 156 F. 2d 541 (E. C. A., 1946). Moreover, the terms of a 1947 amendment, discussed infra, pp. 215-217, clearly show congressional recognition that this exclusive jurisdiction continued after the termination date. Section 203 (a) provides inter alia for the filing of protests to rent orders issued by the Administrator at any time after issuance. The denial by the Administrator of such a protest is reviewable by a complaint filed in the Emergency Court of Appeals pursuant to § 204 (a). 12 Fed. Reg. 2645. “. . . Nothing herein shall be construed as in any way affecting the right of the United States or any officer thereof to dismiss any protest under section 203 of the Emergency Price Control Act of 1942, as amended, or defend against any complaint under section 204 (e) of such Act on the ground of laches.” 61 Stat. 619. Of course the District Court can withhold judgment so that it may give effect to any determination by the Housing Expediter or the Emergency Court of Appeals that might result from the defendant’s pursuit of this remedy. 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_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. COHN v. UNITED STATES. (Court of Appeals of District of Columbia. Submitted November 3, 1926. Decided December 6, 1926.) No. 4494. Arrest <6=^63(4) — Searches and seizures ©=> 7 — Arrest of defendant without warrant while transporting liquor held warranted, and search incidental thereto not unreasonable (National Prohibition Act, tit. 2, § 26 [Comp. St. § 10l38i/2mm]). "Where officer, knowing that defendant had been mixed up in liquor transactions, became suspicious on seeing cartons partially covered in defendant’s automobile, and arrested defendant without warrant after he had admitted that he had “three boxes of corn,” held, arrest was justified, and search incidental thereto not unreasonable, in view of National Prohibition Act, tit. 2, § 26 (Comp. St. § 1013S%mm)., ■ Appeal from the Supreme Court of the District of Columbia. Morris Cohn was convicted of a second offense of unlawfully possessing intoxicating liquor, and he appeals. Affirmed. H. T. Whelan and W. B. O’Connell, both of Washington, D. C., for appellant. Peyton Gordon and Raymond Neudeeker, both of Washington, D. C., for the United States. Before MARTIN, Chief Justice, ROBB, Associate Justice, and BARBER, Judge of the United States Court of Customs Appeals. BARBER, Acting Associate Justice. The appellant, defendant below, was tried, convicted, and sentenced in. the Supreme Court of the District of Columbia, upon an indictment charging him with a second offense of the unlawful possession of intoxicating liq.uor, whisky, under the National Prohibition Act (Comp. St. §■ 10138^4 et seq.). He was convicted of his first offense August 30,1922. The offense here involved was committed October 29, 1923. The errors complained of are: (1) The admission of evidence alleged to have been unlawfully seized. (2) Refusal to reject evidence. But defendant’s counsel in his brief well states the issue as follows: “Inasmuch as the admission of the evidence complained of depended solely upon the legality of the arrest, search, and seizure, this is the only question involved on this appeal. If the search was legal, and the liquor properly seized, it was properly admitted in evidence, and the verdict of the jury was also proper. However, if the search and seizure were unlawful, * * * then appellant’s motion to suppress the evidence should have been sustained. * * * ” The substance of the testimony in narrative form is as follows: A policeman on direct examination testified that he saw defendant driving an automobile past a certain street intersection in the city in the daytime, without giving the proper traffic signal, and noticed two boxes on the seat of the car partly covered. He knew the driver, the defendant, followed him some distance, then stopped him, and asked him;what he had, to which defendant replied, “Three boxes of com.” At that time the officer had no warrant for the arrest of defendant, nor a search warrant for the car. He.then took defendant to the station house “and charged him with illegal possession, transporting, and violation of the traffic regulations.” When he stopped defendant, the officer observed a ■ brown leather storm coat over the top of the boxes which were on the rear seat. The coat did not completely cover them. On top of the coat was a straw wrapper, and inside of that was a bottle containing some kind of liquor marked “White Horse Scotch.” He identified a jar shown him by the assistant district attorney as one that was taken out of one of the boxes in' defendant’s car. At the station house 18 gallons of liquor were found in the ear and seized. That it was intoxicating is conceded. On cross-examination the officer said that he did not smell liquor when the ear passed him, did not see or taste any, and did not know what was in the defendant’s car, but that he had “a good, strong suspicion.” On redirect examination he said that he knew the defendant, and knew that he had been “mixed up with liquor transactions previous to this,” with which, as an officer, he had had nothing to do. He knew that whisky, gin, and other things like that were transported in the kind of cartons that were in defendant’s car, had had some experience as an officer in other liquor law violations, and his suspicions were aroused by seeing the cartons covered. On reeross-examination the officer was again asked what the defendant said when asked what he had, and again he testified that the answer was: “I have got three boxes of corn.” The witness was then asked if he remembered testifying in the ease about a year ago, and if then he did not say that the defendant, answering the question as to what he had, said, “ ‘Oh, you know what I have,’ and started laughing.” Witness replied that he might have so testified; that his recollection was vague about the testimony which he gave at the former trial. He also said that he could see enough of the packages in defendant’s car to discern that they were boxes similar to com whisky boxes. The defendant testified in substance that he was requested by a friend to deliver and transport these cartons, but was ignorant of their contents, and denied that he told the officer that he had “three boxes of com on.” It is not claimed that, if defendant did: use the language, he meant com' whisky, and that the officer so understood. Some of the seized liquor was then admitted in evidence against defendant’s objection and exception, and the case was submitted to the jury, with instructions to which no objection was made. The pertinent part of section 26 of title 2 of the National Prohibition Act (41 Stat. 305 [Comp. St. § 10138%mm]), under which the defendant was prosecuted, provides that: “When the commissioner, his assistants, inspectors, or any officer of the law shall discover any person in the act of transporting in violation of the law, intoxicating liquors in any * * * automobile * * * it shall be his duty to seize any and all intoxicating liquors found therein being transported contrary to law * * * and shall arrest any person in charge thereof.” In Carroll v. United States, 267 U. S. 132, 45 S. Ct. 280, 69 L. Ed. 543, 3 A. L. R. 790, the right of search and seizure thereunder without warrant, and what constitutes probable cause for so doing, were exhaustively considered. At page 149 (45 S. Ct. 283) it was said: “On reason and authority the true rule is that if the search and seizure without a warrant are made upon probable cause, that is, upon a belief, reasonably arising out of circumstances known to the seizing officer, that an automobile or other vehicle contains that which by law is subject to seizure and destruction, the search and seizure are valid.” At page 161 (45 S. Ct. 288), speaking of probable cause and quoting from other decisions, it was said that: ■ “ ‘If the facts and circumstances before, the officer are such as to warrant a man of prudence and caution in believing that the offense has been committed, it is sufficient.’ * * 8 ‘The substance of all the definitions is a reasonable ground for belief in guilt.’ ” In the Carroll Case, the facts relating to the seizure and arrest without warrant were, in brief, as follows: The defendants were justifiably believed by the arresting officers to be engaged in plying the unlawful trade of selling liquor. When the seizure and arrest were made, they were on the public highway, presumably coming from the direction of the source of supply for their stock to the place where they plied their trade, and in the same automobile used by them on a previous occasion some two months before, when they had agreed to sell and deliver to the same officers some whisky, but did not do it, alleging as the reason that they could not obtain it. And, further, the evidence, as set out in the dissenting opinion, shows that, after the officers stopped the defendants’ automobile, they asked defendants to get out of the ear, which they did. The search was then made, the liquor found and seized, and the defendants thereupon arrested. It was held these facts constituted probable cause, and that the liquor found in the ear and seized was admissible in evidence. We think the case at bar presents a stronger probable cause than did the Carroll Case. Here the officer’s suspicions were justifiably aroused by his knowledge of the defendant, by what he saw in the ear, and in addition to this, and before the car was searched and defendant arrested, the defendant admitted to the officer, if the latter’s testimony was true, and evidently the jury so found, that he had three cases of whisky in the car. We are unable to see why this admission, made before arrest or seizure, under the circumstances, did not justify both the arrest and seizure, and render admissible in evidence the liquor seized. It follows that the judgment below ought to be and is affirmed. 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_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. UNITED STATES v. DE VITO et al. No. 291. Circuit Court of Appeals, Second Circuit. Jan. 29, 1934. Blake, Stim & Curran, of New York City (Isidore Beerman, of New York City, and Harold L. Cowin, of Brooklyn, N. Y., of counsel), for appellants. Howard W. Ameli, U. S. Atty., of Brooklyn, N. Y. (Herbert H. Kellogg and Kenneth E. Vought, Asst. U. S. Attys., both of Brooklyn, N. Y., of counsel), for the United States. Before MANTON, AUGUSTUS N. HAND, and CHASE, Circuit Judges. CHASE, Circuit Judge. The appellants, together with James Fer-rano, who has not appealed, were convicted on four of five counts in the indictment. Three other men were indicted with them, but there was a severance as to them on motion of the government. The fourth count charging unlawful possession of intoxicating liquor was dismissed by the court. The first count charged a conspiracy to possess unlawfully an unregistered still; the second charged the unlawful possession of an unregistered still; the third charged the unlawful manufacture of intoxicating liquor; and the fifth the maintenance of a nuisance. Suspended sentences were imposed on the conviction under the first, third, and fifth counts. This appeal relates only to the second count, which charged'the unlawful possession of an unregistered still. The government proved by two officers of the police department of the city of New York that they went with other police officers to the premises of the Summitt Coal & Lumber Company at 485 Mosel avenue, Grassmere, N. Y., on March 20, 1933. They found a building about which they smelled the odor of alcohol. One of them climbed up to the roof on a ladder by the side of the building and looked through a window. He then saw a copper column inside the building extending úp to the roof. The officers then went to the door, which was hooked on the inside, inserted a stick through a crack to raise the hook, and entered. They found the defendants, and another man who has since been deported, standing in a group at the right of the door near a boiler. A large still was in operation in plain sight of all, but no one was working about it. Appellant De Vito was dressed in street clothes and wore a hat. He was served with a summons in a proceeding relating to a fire hazard, and no question of unlawful entry is involved. The officers could not remember how the others were dressed. The men were arrested and refused to answer questions except to give their names and- addresses. The premises were searched, and some overalls and shirts were found, but no questions were asked regarding them. Samples of mash and liquor were taken. The liquor contained 95 per cent, of ethyl alcohol by volume, and was fit for use for beverage purposes. Upon investigation later by a prohibition officer, not one of the addresses given by the appellants was found to be correct. When so much had been proved, the government rested. Each of the appellants testified in defense and explained his presence inside the building where the still was as follows: De Vito said he had entered the building a few minutes before the officers went in to see if his cousin was there. He said he had a job for his cousin and went to the coalyard in the belief that he might find him somewhere about the place. He said the door was open when he walked into the building where the still was, and that he saw no one close it after he entered. Ferraro said he had formerly worked for the coal company and had gone there to try to get a job; that, while he was sitting on some scales, Davis, the man who has been deported, gave him a dollar and asked him to go and buy some sandwiches for him; that, when he got back, Davis was not at the scales, so he walked to the budding and went in through the open door. Davis told him to keep 70 cents of the money and get out, but he had not gone when the officers entered. Berman testified that he was a plumber. He had worked for a man named Pierce putting in a water main for the coal company about three weeks before, and had gone to the promises to find out about his pay. He went to the office, and was told by the girl there that the boss was over in the lumber building. He went there, opened the door, walked in, and asked for the boss. Davis asked him what he wanted, and Berman replied that he wanted to find the boss to get his pay for working cn the water main, and that if he' was not paid ho was going “to turn this place in.” Marrone testified that he went to the yard to buy some lumber he wanted to use to repair two bungalows, and that he was arrested just before he got to the yard and taken into the building where the others were. Rosen testified that he got into eonveisation that day with another passenger on a train from Coney Island to New York. This man offered him a job which he was so glad to get that he inquired no more about it. They went to Staten Island and to the coal-yard, where they went into the building containing the still. There was one man inside who went out after the man who had brought Rosen said something to him which Rosen did not hear. Then Berman came in and began to talk about money; Ferraro next entered with some package whose contents he did not know; then De Vito came in and asked for somebody; and a few minutes later the officers entered. He thought they had Marro ne with them. It was on this evidence that the appellants were convicted of possessing an unregistered still. The still was there, and it was unregistered. They were there also. In spite of the conflict in the evidence, the jury was justified in finding that Man-one was inside the building when the officers testified. Their presence there with the still in operation was a suspicious circumstance. So was the fact that the addresses they gave did not prove to be correct when investigated. If suspicious circumstances were enough, "the evidence would be sufficient to support the conviction. But that is not enough, of course. Graceffo v. United States (C. C. A.) 46 F.(2d) 852. Granted that the statute, section 3258 Rev. St. (26 USCA § 281), does not make it necessary to show possession, but that custody or control is enough, and that it would be unreasonable to believe that the still would have been in operation with no one having it in custody or control; the evidence is woefully weak in any showing that these appellants or any of them had the custody or control of it. They might have. Any one of them might have. Davis might have; and so might one or more now unknown. They were unfortunate enough to be inside at the moment the officers entered. Had they been working there and had the custody and control of the still, the appearance of their clothing might, perhaps, have given some indication of it. But the officers could remember only how De Vito was dressed, and his clothing was not the kind a workman at a still would be expected to wear. There was no evidence that the clothing of any of the ethers indicated that its wearer was working there. Nor that the operation of the still required the services of so many. The burden, of course, was on the government to prove beyond a reasonable doubt that these defendants were guilty as charged in the second count. The proof that all were guilty rises only to the level of suspicion, and, as there is nothing to distinguish one from another in this respect, the guilt of none was proved. Judgment on the second count reversed. 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_geniss
G
What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous". PUBLIC WAREHOUSES OF MATANZAS, Inc., et al. v. FIDELITY & DEPOSIT CO. OF MARYLAND. No. 440. Circuit Court of Appeals, Second Circuit. June 10, 1935. Marvin & Bergh, of New York City (Louis O. Bergh, of New York City, of counsel), for appellant. Kirlin, Campbell, Hickox, Keating & McGrann, of New York City (Delbert M. Tibbetts, Richard L. Sullivan, and Joseph F. Luley, all of New York City, of counsel), for appellees. Before MANTON, L. HAND, and AUGUSTUS N. HAND, Circuit Judges. MANTON, Circuit Judge. This action is to recover losses sustained due to defalcations of appellees’ employee while in their service. The appellant by its fidelity bond underwrote his and other employees’ honesty. Misappropriations took place in the period from September 12, 1927, to June 17, 1931 by one Acosta, an employee. The dishonest servant was treasurer of the appellee Public Warehouses of Matanzas, Inc., a wholly owned subsidiary of the appellee Munson Steanjship Line. He was also an officer of the steamship line. However, any loss to the warehouse company is limited from March 7, 1931, for it was on that day that the unfaithful servant was added to the bond of the warehouse company. On June 19, 1931, the appellees’ representative, examining the accounts of the defaulter,. discovered the misappropriations. A condition of the bond required that proof of loss be filed within 30 days after discovery of the default. Neither appellee did so notify the appellant, but 85 days after June 19, 1931, a proof of loss was filed; a second proof being filed a few days later. Appellant accepted this without prejudice. We think the motion to dismiss the complaint when made at the close of appellees’ case should have prevailed. The bond required the employers to notify the surety “of any default hereunder or of any act of larceny or embezzlement within 10 days after discovery thereof,” and “within 30 days after discovery as aforesaid, of any default causing a loss hereunder, the Employer shall file with the Surety affirmative proof of loss, itemized and duly sworn to on proof of loss form in use by the Surety.” The learned court below, at the end of the appellee’s case, held the time limitation was not a condition of the appellant’s liability, but in the charge to the jury said: “If plaintiffs failed to file proof of loss within thirty days after discovery of the loss, they cannot recover.” Time limitations for filing claims are considered conditions. Such provisions as to notice are conditions precedent to any liability. Whiteside v. North American Accident Ins. Co., 200 N. Y. 320, 93 N. E. 948, 35 L. R. A. (N. S.) 696; Peabody v. Satterlee, 166 N. Y. 174, 59 N. E. 818, 52 L. R. A. 956; Blossom v. Lycoming Fire Ins. Co., 64 N. Y. 162; Quinlan v. P. W. Ins. Co., 133 N. Y. 356, 31 N. E. 31, 28 Am. St. Rep. 645. The court below erroneously permitted the jury to determine the time the loss was discovered for there was no question of fact as to the date of discovery. It was an admitted fact in the complaint filed. The court’s further charge to the jury was: “If the plaintiffs merely had suspicion in June, without any evidence upon which they could be charged with knowledge of embezzlement, then that was not enough to start the time of this thirty-day provision running.” The appellees’ evidence showed they had knowledge of loss and were investigating it prior to June 19, 1931, and continued during the month of June, during which time, by their letters and reports, it is shown they knew and made claim to large losses. Indeed, June 29, 1931, the Public Warehouses, after consultation amongst its officials, made a payment of $8,000 to the Cuban government for losses sustained in respect to the pension fund which was short. The court not only permitted the jury to pass upon the admitted fact as to the date of ascertainment of defaults, but charged the jury that the time for filing proof of loss did not begin until the employers had obtained detailed information about the default. This was error. The condition of the bond clearly required proof of losses “within 30 days after discovery as aforesaid, of any default causing a loss.” Not 30 days after discovery of sufficient details of any default to entitle the employer to swear to a claim based on the default. The courts may not change the terms of the contract. Imperial Fire Ins. Co. v. Coos County, 151 U. S. 452, 14 S. Ct. 379, 38 L. Ed. 231. To say that the.30-day period did not begin to run until the assured had discovered the details of the loss would allow the insured to delay the investigation and to file a claim at his own convenience. The appellant was entitled to make its investigation and have notice of loss so as to have time to do so at the earliest possible moment after default. Moreover,, if the appellees needed more than 30 days to ascertain the details or the amount of the loss, they could have filed their claim within the 30 days, with the reservation to submit further items or details later. Apparently there was no restriction on this course of procedure, but there was a required condition that within the 30 days notice of the claim be served. This submission to the jury allowed them to say that appellees required 85 days to obtain detailed information. This was not permissible by the agreement of the parties. It is claimed that there was a waiver as to the time of filing proof of loss. September 14, 1931, the steamship line wrote appellant’s local attorney in Cuba, who was investigating the loss. It read in part as follows: “We will ask you herewith to grant us an extension of 30 days more, beginning with the date on which the period limiting the policy has terminated.” September 16, 1931, the steamship line delivered proof of loss to the Trust Company of Cuba. September 17, 1931, the local attorney wrote answering the letter of September 14, saying that the letter had been forwarded “to our office in Baltimore, as that office is the only one who can allow you the extra thirty days extension requested by you.” September 17, 1931, he wrote a letter saying that before passing on the claim they would like to know what disposition was made of certain salvage. This conduct is said to constitute a waiver. To constitute a waiver there must be a clear statement of the intention of the appellant to relinquish a known right arid that statement must be made by an agent having authority to give such a waiver. Neither of these requirements appear. The directions on the back of the proof of loss requiring itemized statements are said to have constituted a burdensome task which required more time to give the information. Such requirements, however, were not binding upon the appellees. The appellant could not enlarge the terms of the bond by statements on the back of the proof of loss form. They were advisory only and it was incumbent upon the appellees to give only that information which they had. The authorities as to waiver, to which appellees call our attention, are not inconsistent with these views. In Globe & Rutgers Ins. Co. v. Prairie Oil & Gas Co., 248 F. 452 (C. C. A. 2), the question was not as to the time of filing the claim, but as to the sufficiency of statement in the proof of loss. In Grenada Cotton Compress Co. v. Owen, 269 F. 771 (C. C. A. 2), the report contains no statement as to the wording of the bond. In O’Boyle v. Northwestern Fire & Marine Ins. Co., 49 F.(2d) 713 (C. C. A. 2), there was not involved any question of time. That case decided that a defendant denying all liability had waived any rights to further particulars in the proof required from the insured. In Hirsch-Fauth Furniture Co. v. Insurance Co. (C. C. A.) 24 F.(2d) 216, 221, and Kahnweiler v. Phenix Ins. Co. (C. C. A.) 67 F. 483, the provisions while somewhat dissimilar in their particulars, are similar to the provision of the bond in this case as to the time of filing, but in neither case is there any reference to the provision for filing as a condition. In the instant case, the provision is classified and labeled as a condition. Fidelity & Deposit Co. of Maryland v. Courtney, 186 U. S. 342, 22 S. Ct. 833, 46 L. Ed. 1193, is referred to, but because of the essential difference in facts, the case is to be distinguished. There was, in that case, no definite time except the word “immediate,” required for giving notice of loss. The requirement was that the assured in filing the claim shall give “full particulars thereof as soon as practicable.” Hence the insured was entitled to wait a reasonable time to obtain “full particulars.” In the case at bar, the time is fixed at thirty days. There is no evidence in the record showing a necessity of more than thirty days to discover the defaults. Since the appellees breached the condition of the bond as to notice, no recovery may be had. Judgment reversed. Question: What is the general issue in the case? A. criminal B. civil rights C. First Amendment D. due process E. privacy F. labor relations G. economic activity and regulation H. miscellaneous Answer:
songer_appbus
0
What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. James Weldon HOOD, Appellant, v. UNITED STATES of America, Appellee. No. 20694. United States Court of Appeals Fifth Circuit. Jan. 10, 1964. Charles F. Cockrell, Jr., Nick C. Nichols, Levert J. Able, Houston, Tex., for appellant James Weldon Hood. Scott T. Cook, James R. Gough, Asst. U. S. Attys., Woodrow Seals, U. S. Atty., Houston, Tex., for appellee. Before HUTCHESON, BREITENSTEIN, and BELL, Circuit Judges. Of the Tenth Circuit, sitting by designation. GRIFFIN B. BELL, Circuit Judge. Appellant, a bankrupt, appeals from a judgment finding and holding him in criminal contempt of the United States District Court for the Southern District of Texas. The contempt allegedly consisted of the violation of an order of that court, entered under date of October 26, 1962 requiring him to turn over a check made payable to him by the Chase Manhattan Bank of New York to the Trustee in Bankruptcy. The check in question represented a part of the interest of appellant in the profit sharing plan of a former employer. It is undisputed that he received the check and failed to turn it over to the Trustee. Instead, he cashed it, placed the proceeds in a bank safety deposit box, and used a portion of the proceeds. However, the sum of the check had been paid to the Trustee by appellant prior to the issuance of the contempt show cause order. The crux of this appeal is whether the District Court entered the order which appellant is said to have violated. The contempt as charged is set out, following Rule 42(b), F.R.Crim.P., in a notice to appellant in the form of a show cause order. Jury trial was waived. Having been adjudged guilty, appellant was sentenced to a period of confinement of thirty days, and remanded to the Attorney General. This appeal followed. The validity of the conviction depends on whether there was proof of guilt beyond a reasonable doubt. In a criminal contempt proceeding, the accused is clothed with the presumption of innocence and the government has the burden of proving guilt beyond a reasonable doubt. Michaelson v. United States ex rel. Chicago, St. P. M. & O. R. Co., 1924, 266 U.S. 42, 45 S.Ct. 18, 69 L. Ed. 162; Green v. United States, 1958, 356 U.S. 165, 78 S.Ct. 632, 2 L.Ed.2d 672; and Cliett v. Hammonds, 5 Cir., 1962, 305 F.2d 565. A determination of this question depends, not on the conduct of appellant in violating the order of the Referee which we do not approve, but indeed condemn, and for which there was a sufficient basis for a finding that it was contumacious, but on the welter of orders and writings entered by two different Referees, and finally on the context of the order of the District Court. Appellant filed a voluntary petition in bankruptcy in 1961. Prior to a short tenure as president of another corporation, he had been employed by National Lead Company and had accumulated some $26,000 in the profit sharing plan of that organization. Under the terms of the plan this amount would be paid to him after an interim period in five annual installments. He had collected one payment prior to bankruptcy and the others were due on July 6 in the years 1962 through 1965. He showed his interest in this plan on one of the schedules filed with his bankruptcy petition, and claimed that it had no present value. On June 13, 1962, the then Referee in Bankruptcy entered an order requiring him to turn over to the Trustee “if, as and when he receives it, a check from the Chase Manhattan Bank, Trustee of the National Lead Company Employees’ Profit Sharing Trust, which check will represent the installment to be paid the bankrupt this year from the interest he acquired in the National Lead Company’s Employees Profit Sharing Plan.” Rather than avoiding this narrow, summary order to which neither the bank nor National Lead were parties by taking the payment in cash, or through assignment to another, appellant filed a motion for an order to withdraw from the estate as exempt property any interest acquired by him in the profit sharing plan. A new Referee filed a “Memorandum” under date of September 6, 1962 deciding this motion adversely to appellant. It was not entered as an order. It dealt mainly with the view of the Referee that the claim for exemption came too late, and that it was without merit in that the bankrupt had a vested right from the time of the termination of employment to receive the funds due under the plan. The turnover order was mentioned in the memorandum only in the following terms, where, after denying the motion, the Referee said: “The turnover order of June 13, 1962 remains in effect.” The Referee next entered an order under date of September 26, 1962 denying the motion of appellant to withdraw the assets. It is to be distinguished from the document entitled “Memorandum” of September 6, 1962. This order recited: “It is further Ordered that the Court’s Turnover Order dated June 13, 1962, shall remain in full force and effect.” This Referee then entered findings of fact and conclusions of law under date of October 2, 1962. This document or writing, like the memorandum, was not in the form of an order, but did recite the fact of the turnover order of June 13, 1962. It made no mention of it otherwise. Appellant then petitioned the District Court for review of the order of the Referee entered on September 26, 1962 on his motion. It was the only order entered by the Referee on the motion. This petition was denied by the District Court under date of October 26, 1962 in the following terms: “Bankrupt’s petition for review, as amended, of Referee’s Order denying the ‘Motion for an Order to Withdraw Certain Assets by Bankrupt’ and reaffirming the Turnover Order of June 13, 1962 is denied. “Referee’s opinion of September 6, 1962 is approved, and his findings of fact and conclusions of law dated October 2, 1962 are adopted.” This is the only order of the District Court appearing of record before us. It does not approve the turnover order of June 13, 1962. The only reference made to it is in the sentence denying the petition to review the order of the Referee. That order is described as having denied the motion to withdraw assets and as having reaffirmed the turnover order. The court simply denied the petition to review. It did not make the turnover order the order of the District Court or in any way adopt it in spite of the fact that this was the only order entered by the Referee in the matter other than the original turnover order of June 13, 1962. This action of the court, or its failure to act, is to be compared with its action of approving the “Memorandum”, of September 6, 1962, and adopting the findings of fact and conclusions of law of October 2, 1962. It becomes clear then that there was no order of the District Court that appellant turn over the check, except by implication, for appellant to violate. He was not charged with violating the order of the Referee. He was charged with criminal contempt of the authority of the District Court “in that on October 26, 1962 * * * the * * * the United States District Judge for the Southern District of Texas, ordered the Bankrupt * * * to turn over to the Trustee in Bankruptcy a certain check * * This was the language of the order to show cause directed to appellant by the District Court, and against which appellant was to defend. It followed by a few days the “Referee’s certificate showing contempt in a Bankruptcy proceeding” to the District Court. The Referee in that certificate represents that the District Court, in addition to denying review, had “affirmed” the Referee’s opinion and orders, referring to the opinion of September 6 and the order of September 26. The District Court made a finding in the judgment and sentence that the District Court had “reaffirmed” the Referee’s orders of June 13, 1962, and September 26, 1962. This is as close as either comes to saying just what the court order was. On the record before us, and in the light of what has been said, we hold that the evidence adduced was insufficient to show guilt beyond a reasonable doubt of a violation of the order of the District Court of October 26, 1962. The burden was on the government to show a court order that appellant turn over the check. It was no doubt the sense of the court to adopt or in some way make the Referee’s turnover order of June 13, 1962 its order. This may have been the sense of its order of October 26, 1962, but it was not without serious ambiguity. It was laid in the show cause order, the charging document, as the premise for a criminal contempt conviction in the terms that the court ordered appellant to turn over the check. The proof did not show such an order. See Matusow v. United States, 5 Cir., 1956, 229 F.2d 335; and Rule 42(b), supra, on the requirement of notice giving the essential facts constituting the criminal contempt charged. Accordingly, the judgment must be, and it is reversed with direction to the District Court on remand that the conviction and sentence be set aside, and that judgment be rendered for appellant. Reversed and remanded with directions. . We note that the record discloses that appellant was charged under a two count felony indictment, returned on February 18, 1962, with concealing the assets represented by the cheek. The Referee in Bankruptcy certified to the District Court on February 19, 1962 that appellant, in the opinion of the Referee, had committed acts constituting criminal contempt. Appellant paid the amount of the check over to the Trustee on February 20, 1962. He had been arrested on a warrant issued pursuant to the indictment and held in jail for three days pending release on bond in the amount of $25,000. The substance of questioning on this trial by the Assistant United States Attorney was that appellant paid the money over in order to get his bond reduced to $5,000. Because of its irrelevancy, we need not consider the question of an abuse of the processes of the court in effecting the collection in this manner, nor need we decide whether the imprisonment was for debt. . An appeal was taken to this court from the order of October 26, 1962, and is presently under submission. It is styled Hood, Bankrupt v. Hugghins, Trustee, No. 20,234. We need not consider the validity of the turnover order in the disposition of this appeal. Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number. Answer:
songer_origin
A
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial. The RATH PACKING COMPANY, a corporation, Plaintiff, Counter-Defendant and Appellant, v. M. H. BECKER, as Director of the County of Los Angeles Department of Weights and Measures, Defendant, Appellee and Cross-Appellant, C. B. Christensen, as Director of Agriculture of the State of California, Intervenor, Appellee and Cross-Appellant. The RATH PACKING COMPANY, a corporation, Plaintiff and Appellant, v. Joseph W. JONES, as Director of the County of Riverside Department of Weights and Measures, Defendant, Appellee and Cross-Appellant. Nos. 73-2481, 73-2482, 73-3092, 73-2496 and 73-3180. United States Court of Appeals, Ninth Circuit. Oct. 29, 1975. Certiorari Granted April 19, 1976. See 96 S.Ct. 1663. Arnold K. Graham, Deputy County Counsel (argued), Los Angeles, Cal., for M. H. Becker. Allan J. Goodman, Deputy Atty. Gen. (argued), Los Angeles, Cal., for C. B. Christensen. Loyal E. Keir, Deputy County Counsel (argued), Riverside, Cal., for Joseph W. Jones. Dean C. Dunlavey (argued), of Gibson, Dunn & Crutcher, Los Angeles, Cal., for Rath Packing Co. Before BROWNING and TRASK, Circuit Judges, and RICH, Judge. The Honorable Giles S. Rich, Judge, United States Court of Customs and Patent Appeals, sitting by designation. OPINION RICH, Judge: These suits were brought by Rath Packing Company (hereinafter “Rath”) to enjoin the enforcement of certain California statutes and regulations pertaining to the labeling by weight of packaged foods at retail, and for a declaration that the federal Wholesome Meat Act of 1967, 21 U.S.C. § 601 et seq., and a regulation promulgated thereunder, 9 CFR 317.2(h)(2), preempt these California statutes and regulations. They were consolidated for decision in the district court and on appeal. Rath is a nation-wide processor and seller of meat products, including bacon, and maintains a meat-packing establishment at Vernon, California, which is subject to federal inspection under the Wholesome Meat Act and 9 CFR 302.1 as an establishment in which “any products of * * * carcasses of livestock are * * * prepared for transportation or sale as articles of commerce, which are intended for use as human food.” Becker and Jones are the Directors of the Departments of Weights and Measures of Los Angeles and Riverside Counties, California, respectively. They are responsible for the actual enforcement of the State weights and measures laws in their counties. Intervenor Christensen is the Director of Agriculture of the State of California. Jurisdiction in the district court was based on 28 U.S.C. § 1331(a), as it was alleged that a case or controversy arising under the laws of the United States involving more than $10,000 was presented. We have jurisdiction of this appeal under 28 U.S.C. § 1291. The district court, in a memorandum and order reported at 357 F.Supp. 529 (C.D.Cal.1973), granted in part the relief requested, and all parties appealed the determinations adverse to them. This case is a companion to General Mills, Inc., et al. v. Jones, 530 F.2d 1317, decided concurrently herewith. Much of the discussion in this opinion is applicable to the General Mills case as well. Background This case concerns the packaging and weighing of bacon. In order to understand the issues, a brief description of the properties of bacon and how it is packed and weighed is necessary. The weighing and packaging of bacon at the Rath plant takes place under internal Rath procedures which have been submitted to an official of the United States Department of Agriculture (USDA). After the pickled and smoked pork bellies come from the bacon press, where they are squared into uniform rectangular shapes, they are sliced by a machine, which distributes the slices in “drafts” of approximately one pound weight. An operator places each draft on an insert, or “tux”, board, which is a hardboard coated either with wax or with polyethylene. The drafts are then passed to a scaling station, where they are weighed and the operator either adds or removes bacon to bring the weight within a predetermined target limit. After scaling the bacon is passed to a tux overwrap machine, which inserts the bacon into a carton and seals it. This carton is not hermetically sealed and the bacon in it does lose some moisture to the atmosphere over time. Although Rath now does use some hermetically sealed bacon containers, this packing method is agreed to be in accordance with good distribution practices. Once the bacon is weighed at the scaling station, it is not weighed again before it leaves the Rath plant, an average of 4 days, never more than 8 or 9 days, later. In determining the pass zone Rath follows the USD A procedure of subtracting from the actual weight of the draft and the tux board on which it lies the weight of a dry tux board. This method uses a “dry tare.” There is no evidence that Rath has violated federal weight standards in any way. The federal program for regulation of net weight labeling of meat and meat food products exists in part under the Wholesome Meat Act of 1967, supra. The Act added the concept of “misbrand-ing” to the prior federal meat inspection laws. 21 U.S.C. § 601(n) provides in relevant part: (n) The term “misbranded” shall apply to any carcass, part thereof, meat or meat food product under one or more of the following circumstances: * * * * * ^ (5) if in a package or other container unless it bears a label showing (A) the name and place of business of the manufacturer, packer, or distributor; and (B) an accurate statement of the quantity of the contents in terms of weight, measure, or numerical count: Provided, That under clause (B) of this sub-paragraph (5), reasonable variations may be permitted, and exemptions as to small packages may be established, by regulations prescribed by the Secretary [of Agriculture]; * * * * * * In 9 CFR 317.2(h)(2) the Secretary purported to implement § 601(n)(5): (2) The statement as it is shown on a label shall not be false or misleading and shall express an accurate statement of the quantity of contents of the container exclusive of wrappers and packing substances. Reasonable variations caused by loss or gain of moisture during the course of good distribution practices or by unavoidable deviations in good manufacturing practice will be recognized. Variations from stated quantity of contents shall not be unreasonably large. In the supermarket the California inspectors employed a different weighing method, using a “wet tare.” The California procedure is set forth in detail in 4 Cal.Admin.Code ch. 8, subch. 2, Art. 5. Briefly, the California inspectors follow a twelve-step procedure set forth in Section 2933.3 of the regulations: (1) determine the number of packages in the lot to be sampled; (2) from a table in the regulation, determine the total package sample size (e. g., 15 packages out of a lot of 300); (3) from the same table, determine the tare sample size (e. g., 2 packages out of a lot of 300); (4) record the gross weight of each tare sample package; (5) remove the usable contents from each tare sample, weigh the used, empty container, and compute the average tare Weight; (6) weigh the remaining packages in the package sample and record their weights, determining the amount of error from labeled weight for each package; (7) [not applicable to bacon]; (8) calculate the preliminary total error for the sample, and determine the arithmetical average error; (9) calculate the range of error for each sub-group of the package sample; (10) determine whether any unreasonable errors exist, and eliminate from further computations all samples whose errors exceed the preliminary average error in underweight situations by more than the amounts set forth in tables in the regulations; if the number of unreasonable errors exceeds a certain set figure for each sample size, further action, including the issuance of off-sale orders, may be undertaken. (11) recalculate the total and average error of the sample excluding the unreasonable errors; (12) “(a) If the total error as obtained from the sample is plus and is less than the value shown in Table III for the corresponding range and sample size, then a shortage may or may not exist, and additional samples may or may not be taken, depending upon the discretion of the weights and measures official. If no additional samples are taken then the procedures as set forth in the following sections shall govern the disposition of the lot. “(b) If the total error obtained from the sample is less than the above-determined value, and the error is minus, then a shortage may or may not exist, and additional samples may or may not be taken, depending upon the discretion of the weights and measures official. If no additional samples are taken the lot shall be passed. If additional samples are taken then the procedures as set forth in the following sections shall govern the disposition of the lot.” [Sec. 2933.3.12.] If an inspector cannot pass the lot based on this sampling technique or after retesting, he then may order the lot off-sale under the provisions of California Business and Professions Code § 12211: Each sealer shall, from time to time, weigh or measure packages, containers or amounts of commodities sold, or in the process of delivery, in order to determine whether the same contain the quantity or amount represented and whether they are being sold in accordance with law. # # * sif * # Whenever a lot or package of any commodity is found to contain, through the procedures authorized herein, a less amount than that represented, the sealer shall in writing order same off sale and require that an accurate statement of quantity be placed on each such package or container before the same may be released for sale by the sealer in writing. The sealer may seize as evidence any package or container which is found to contain a less amount than that represented. Evidence was adduced at the trial from various California officials, including Becker, that the county departments do not recognize variations in net weight that result from water loss during good distribution practice. Mr. Cervinka, a statistician employed by the California Department of Agriculture, testified on direct examination as an expert for Christensen that Art. 5 of the regulation, described above, is a statistically valid procedure. On cross-examination he indicated that Art. 5 does not make any distinction between products that lose water and those that do not, nor does it make provision for any weight reductions during the course of handling. On this and other evidence the district court concluded that Art. 5 uses “absolute” weight as determined by statistical methods as its measure of compliance and makes no reference in describing the steps of the weighing and calculating process to reasonable variations from label weight caused by “loss * * * of moisture during the course of good distribution practice.” The district court’s fact findings have substantial evidentia-ry support and are not clearly erroneous. F.R.Civ.P. 52(a). Becker, Christensen, and Jones do not urge error in the district court’s construction of Art. 5. Procedural History During the period September 1971 to March 1972 inspectors under the supervision of Becker and Jones visited supermarkets in Los Angeles and Riverside Counties and weighed packages of Rath bacon to determine compliance with the State statute and regulations concerning net weight labeling. Becker’s representatives ordered approximately 84 lots of bacon off sale for short weight; Jones ordered nearly 400 packages of Rath bacon off sale in the period September 29 to December 30, 1971, for the same reason. On February 17, 1972, the Riverside County Counsel brought an action in the name of the People against Rath in the Superior Court for Riverside County for an injunction under Cal.Civ.Code § 3369 and for civil penalties under Cal.Bus. and Prof.Code § 17536, alleging that Rath had committed acts of unfair competition in violation of Cal.Bus. and Prof. Code § 17500 by distributing for sale in Riverside County supermarkets the packages of bacon that Jones’ representatives had ordered off sale. On March 1, 1972, the Los Angeles County Counsel filed a similar action against Rath in the Superior Court for Los Angeles County. Rath removed both actions to federal district court within a week thereafter; but on March 20, 1972, the district court remanded the actions to the State courts, finding, at least with respect to the Riverside action, that there was no diversity of citizenship and that “[n]o substantial federal question is presented on the face of the pleadings.” Meanwhile, on March 17, 1972, Rath filed two actions in federal district court, one against the People and Becker, the other against Jones. Rath requested declarations that the California statutes and regulations impose labeling standards on meat food products prepared by Rath that are in addition to or different than the standards of the Wholesome Meat Act of 1967, specifically 21 U.S.C. § 601(n)(5) and 9 CFR 317.2(h)(2) and that California could not impose weight labeling requirements on Rath meat food products after they left the Rath plant. Rath also requested injunctions against the enforcement by Becker and Jones of labeling requirements in addition to or different than those in the Act and against the ordering off-sale or otherwise preventing the sale of Rath products for failure of the products to bear an accurate label in terms of net weight after they have left Rath’s plant. Becker, Jones, and Christensen counterclaimed for the same relief sought by the State in the state court actions. After the remands, on March 30, 1972, Rath answered the state court complaints and filed cross-complaints seeking the same relief, in virtually the same language, as Rath sought in federal court. In July 1972 Christensen intervened in both the state and federal court litigations. Becker filed in the district court motions requesting the court either to abstain from deciding the federal court action or to stay the federal action pending final determinations in the state court actions. The district court denied these motions in May 1972. On November 14, 1972, the superior court in the Riverside action dismissed Rath’s cross-complaint; Rath appealed. On the very next day, Christensen and Becker moved the district court to dismiss Rath’s action or to stay it pending decision on Rath’s state appeal. The district court denied the motions, and this court, on Christensen and Becker’s petition for a writ of prohibition, declined to disturb the district court’s assumption of jurisdiction. On April 3, 1973, the district court, after a trial on.the merits of Rath’s action against Becker and on cross-motion for summary judgment in the action against Jones, entered judgment declaring Cal.Bus. and Prof.Code § 12211 and 4 Cal.Admin.Code ch. 8, subch. 2, Art. 5 to be preempted by federal law and enjoining their enforcement. In the course of its Memorandum the court held that 9 CFR 317.2(h)(2) was invalid, and that thus the sole federal labeling standard was “accurate” weight. The court also held that accurate weight labeling standards could be applied to packages of meat and meat food products at the retail level. Cross-appeals were taken to this court. The Riverside action continued, and in January 1974, while Rath’s first appeal was still pending in the California District Court of Appeal, the superior court entered summary judgment on the complaints of Jones and Christensen against Rath; Rath appealed again. In an unreported decision in April 1974 on Rath’s first appeal, the California appellate court reversed the dismissal of Rath’s cross-complaint against Jones, holding that the federal court’s judgment was res judicata on the issue of the validity of § 12211 and Art. 5 (to the extent that it implemented § 12211). On Rath’s second appeal, in December 1974, the appellate court reversed the grant of summary judgment on the complaints and remanded the case to the Riverside superior court for trial, holding that there existed issues of fact that required trial. People v. Rath Packing Company, 44 Cal. App.3d 56, 118 Cal.Rptr. 438 (1974). The appellate court also explained further the basis of its decision on Rath’s first appeal, holding that the effect of the federal court judgment was to preclude relitigation of the narrow issue of the preemption of § 12211, and its implementation in Art. 5, by the Wholesome Meat Act. The appellate court held, 118 Cal. Rptr. at 446 n.6, that Art. 5 is not unconstitutional. Although the record does not contain any notice of the proceedings in the Los Angeles superior court action, we are informed by Rath’s reply brief that in February 1974 the Los Angeles court gave res judicata effect to the final judgment on the preemption issue and decided in Rath’s favor the issues of constitutionality and whether Becker’s ordering of Rath’s bacon off sale complied with state law. An appeal from this judgment is pending. I. Becker, Jones, and Christensen contend that the district court lacked jurisdiction of the subject matter before it, and, in the alternative, that the principles of abstention and comity required the court to stay its hand until the state court actions had proceeded to judgment. We reject both contentions. A. The question of subject matter jurisdiction may be raised by the parties at any time or by the court sua sponte. Clark v. Paul Gray, Inc., 306 U.S. 583, 59 S.Ct. 744, 83 L.Ed. 1001 (1938); F.R.Civ.P. 12(h)(3). Becker et al. first contend that the declaratory judgment actions brought by Rath are nothing more than attempts to get collateral review of the remands to state court of the actions brought against Rath by the People which Rath had removed to the district court. 28 U.S.C. § 1447, provides: § 1447. Procedure after removal generally. (d) An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise * * *. Their second contention is that Rath’s claim for declaratory and injunctive relief in the district court is in reality a defense to the state court actions, and, as such, cannot form a basis for federal question jurisdiction under 28 U.S.C. § 1331. After the institution of Rath’s federal action Becker at al. presented these contentions to this court by way of a petition for a writ of prohibition, Becker et al. v. Real, No. 72-3037, which the court, ELY and HUFSTEDLER, Circuit Judges, denied. We find no reason to depart from that decision. Federal question jurisdiction is determined by the federal district court solely from the face of plaintiff’s complaint. Gully v. First National Bank, 299 U.S. 109, 57 S.Ct. 96, 81 L.Ed. 70 (1936). Removability cannot be created by defendant pleading a counter-claim presenting a federal question under 28 U.S.C. § 1331. See 1 Barron & Holtzoff, Federal Practice and Procedure (Wright Ed.) § 102; United Artists Corp. v. Ancore Amusement Corp., 91 F.Supp. 132 (S.D.N.Y.1950). Thus, Rath’s answer and cross-complaint in the state court, raising its claim for declaratory and injunctive relief under federal law, were not before the district court when it remanded the state court actions and do not raise any issues necessarily adjudicated by the court in deciding to remand. The decision of the district court that the case does not invoke the federal jurisdiction and must be remanded precludes further litigation of the issue of the forum in which the removed case is to be litigated. Missouri Pacific Ry. Co. v. Fitzgerald, 160 U.S. 556, 583, 16 S.Ct. 389, 40 L.Ed. 536 (1896). The decision of the district court to remand has no bearing on the merits of the underlying claims. Since the district court did not make any decision with respect to the propriety of a federal forum for Rath’s claims, we cannot say that the maintenance of Rath’s claim in federal court works a circumvention of 28 U.S.C. § 1447(d). Cf. Chandler v. O’Bryan, 445 F.2d 1045, 1057 (10th Cir. 1971). Rath is not contending that the remand orders were erroneous, but only that it has a right to a federal forum for its alleged federal claims. The argument that Rath’s claims are not within the federal question jurisdiction, it not being denied that there is no diversity of citizenship, takes its roots in the statement of the Supreme Court in Public Service Commission v. Wycoff, 344 U.S. 237, 248, 73 S.Ct. 236, 242, 97 L.Ed. 291 (1952): Where the complaint in an action for declaratory judgment seeks in essence to assert a defense to an impending or threatened state court action, it is the character of the threatened action, and not of the defense, which will determine whether there is a federal-question jurisdiction in the District Court. If the cause of action, which the declaratory defendant threatens to assert, does not itself involve a claim under federal law, it is doubtful if a federal court may entertain an action for a declaratory judgment establishing a defense to that claim. This is dubious even though the declaratory complaint sets forth a claim of federal right, if that right is in reality in the nature of a defense to a threatened cause of action. Federal courts will not seize litigations from state courts merely because one, normally a defendant, goes to federal court to begin his federal-law defense before the state court begins the case under state law * * * (emphasis added [by the Court]). The doubt that the Court expresses is still with us, e. g., C. Wright, Law of Federal Courts § 18, at 62 (2d Ed. 1970). In order to appreciate the Wycoff case we must first look to the jurisdictional background of the Declaratory Judgment Act, 28 U.S.C. § 2201. The Act is procedural only, creating a new federal remedy without expanding the jurisdiction of the federal courts. Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 57 S.Ct. 461, 81 L.Ed. 617 (1937). “ ‘Jurisdiction’ means the kinds of issues which give right of entrance to federal courts.” Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671, 70 S.Ct. 876, 879, 94 L.Ed. 1194 (1950). The Wycoff “test” quoted supra has its origins in Tennessee v. Union & Planters’ Bank, 152 U.S. 454, 464, 14 S.Ct. 654, 657, 38 L.Ed. 511 (1894), where the Court said, “a suggestion of one party, that the other will or may set up a claim under the Constitution or laws of the United States, does not make the suit one arising under that Constitution or those laws.” Furthermore, the complaint of the declaratory plaintiff must present a federal question “unaided by anything alleged in anticipation of avoidance of defenses which it is thought the defendant may interpose.” Taylor v. Anderson, 234 U.S. 74, 75-76, 34 S.Ct. 724, 58 L.Ed. 1218 (1914). In Wycoff the complainant brought an action for declaratory judgment against the Utah Public Service Commission, requesting a finding that the business conducted by complainant in carrying goods between points in Utah was interstate commerce (and thus not subject to regulation by the Commission). The principal concern of the Court was the nature of the controversy presented, 344 U.S. at 244, 73 S.Ct. at 240: A multitude of rights and immunities may be predicated upon the premise that a business consists of interstate commerce. What are the specific ones in controversy? The record is silent and the counsel little more articulate. We may surmise that the purpose to be served by a declaratory judgment is ultimately the same as respondent’s explanation of the purposes of the injunction it originally asked, which is “to guard against the possibility that said Commission would attempt to prevent respondent from operating under its certificate from the Interstate Commerce Commission.” (Emphasis supplied [by the Court].) From this the Court concluded that “this dispute has not matured to the point where we can see what, if any, concrete controversy will develop.” 344 U.S. at 245, 73 S.Ct. at 241. In the portion of Wycoff quoted three paragraphs above, the Court was applying its concern that the controversy was not ripe for adjudication by pointing out a declaratory plaintiff may not create a controversy by seeking to have a federal court adjudicate federal defenses he might assert in a proceeding before a state court or administrative tribunal which is not ripe, but which is merely threatened or impending. In a case of actual controversy within its jurisdiction, except with respect to Federal taxes, any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. * * *. (Emphasis added.) Another aspect of the matter was aired in Chandler v. O’Bryan, supra. O’Bryan brought a libel action in Oklahoma state court against Chandler, a United States District Judge, on statements made by Chandler to a newspaper accusing O’Bryan of bribing judges of the Oklahoma Supreme Court. Chandler removed the action to federal district court; but the district court held that the acts alleged in the complaint were not done in performance of Chandler’s official duties as a federal judge, nor were they done under color of judicial office, and remanded the case to the state court for lack of a federal question, there being no diversity of citizenship. It is settled that Chandler’s judicial immunity defense arises under federal law. Howard v. Lyons, 360 U.S. 593, 79 S.Ct. 1331, 3 L.Ed.2d 1454 (1959). A verdict for O’Bryan was returned in the state court. Chandler then filed a declaratory judgment action in federal court seeking to have the state libel judgment enjoined and expunged, alleging his federal judicial immunity claim. The district court granted relief to Chandler, 311 F.Supp. 1121 (W.D.Okl.1969), but the 10th Circuit (by a panel of three judges of the 8th Circuit) reversed. The court found Wycoff directly applicable, and held that Chandler was seeking a separate federal adjudication of a matter which was “in reality in the nature of a defense” to the state court libel action, which was based solely on state libel law and raised no federal question itself. The action was dismissed for lack of federal jurisdiction. The instant case is different. While it is true that judgment in Rath’s favor affects the results of the,Los Angeles and Riverside actions, we cannot say that Rath’s action is premature or that Rath’s claim is merely a defense to the state court actions. The ordering off-sale of Rath’s products in September 1971 and afterward and the upward adjustment of the pass range at the sealing station at Rath’s plant, increasing the overpack of bacon necessitated by California weighing procedures, it was stipulated below, caused Rath a loss of more than $10,000. The off-sale orders themselves are sufficient State action to create an actual controversy between Rath and the state weights and measures officials. See Lake Carriers’ Ass’n v. MacMullan, 406 U.S. 498, 508, 92 S.Ct. 1749, 32 L.Ed.2d 257 (1972). The present controversy was not created by the institution of the state court actions against Rath, but arose independently thereof by virtue of the off-sale orders. Unlike Chandler, Rath’s claims have vitality in the absence of the litigation in state court; Rath had the right to a federal forum before the institution of the state court actions. Chandler’s federal claim was purely in the nature of a defense to the libel action. Brought without reference to the underlying state court proceeding, Chandler’s claim would be a useless gesture: no one would care whether Chandler acted under the protection accorded by the courts to his office if O’Bryan had refrained from suing him. That Rath’s claim is or can be the basis for a defense to the state court actions states a mere truism; the test is whether Rath has created a federal controversy where none existed or is seeking an adjudication of a claim which is essentially meaningful only when pleaded as a defense to the particular pending state court actions. We find neither factor present and consider that Rath has stated claims which are within the federal jurisdiction conferred on the district court by 28 U.S.C. § 1331. The Commission has plainly indicated an intent to enforce the Act; and prohibition of the statute is so broad as to deny the United States the right to ship at reduced rates, unless the Commission first gives its approval. The case is, therefore, quite different from Public Service Commission of Utah v. Wycoff Co., 344 U.S. 237, 73 S.Ct. 236, 97 L.Ed. 291, where a carrier sought relief in a federal court against a state commission in order “to guard against the possibility,” id., 344 U.S. at page 244, 73 S.Ct. at page 240, that the Commission would assume jurisdiction. Here the statute limits transportation at reduced rates unless the Commission first gives approval. The controversy is present and concrete — whether the United States has the right to obtain transportation service at such rates as it may negotiate or whether it can do so only with state approval. B. We also hold that considerations of comity and abstention did not require the district court to relinquish jurisdiction. Comity is a principle of long standing: We live in the jurisdiction of two sovereignties, each having its own system of courts to declare and enforce its laws in. common territory. It would be impossible for such courts to fulfil their respective functions without embarrassing conflict unless rules were adopted by them to avoid it. The people for whose benefit these two systems are maintained are deeply interested that each system shall be effective and unhindered in its vindication of its laws. The situation requires, therefore, not only definite rules fixing the powers of the courts in cases of jurisdiction over the same persons and things in actual litigation, but also a spirit of reciprocal comity and mutual assistance to promote due and orderly procedure. * * *• * * * The chief rule which preserves our two systems of courts from actual conflict of jurisdiction is that the court which first takes the subject-matter of the litigation into its control, whether this be person or property, must be permitted to exhaust its remedy, to attain which it assumed control, before the other court shall attempt to take it for its purpose. Ponzi v. Fessenden, 258 U.S. 254, 259-60, 42 S.Ct. 309, 310, 66 L.Ed. 607 (1921). This circuit has defined the rule of comity as “merely of recognizing exclusive jurisdiction in the court first acquiring jurisdiction of any action.” Gregg v. Winchester, 173 F.2d 512, 513 (9th Cir. 1949). Under these rules and in the present circumstances, the principle of comity does not suggest that the district court should have declined to hear Rath’s claims. The subject matter of the litigation before us consists of the federal questions raised by Rath in its complaint. These federal questions were first taken into the control of a court when Rath filed its complaint in the district court on March 17, 1972. No state court could have acquired jurisdiction over this subject matter until Rath answered and filed its cross-complaints in the state courts on March 30, 1972. Our conclusion is reinforced by the actions of the District Court of Appeal in the Riverside action twice giving res judicata effect to the federal district court judgment. If, as Becker and Christensen contend, the only matter preventing the first Riverside judgment, dismissing Rath’s cross-complaint against Jones, from being given preclusive effect as a final judgment is Cal.Code of Civ.Proc. § 1049, the California appellate court would not have directed the trial court to abandon its position and to follow the federal judgment, which, since it had been appealed, was just as “final” as the Riverside judgment if evaluated under California law. We do not see here the federal-state conflict that the comity doctrine seeks to avoid. The district court acquired jurisdiction over the federal question prior to the state courts, and very scrupulously avoided deciding even tangentially the constitutionality of the California statutes and regulations or whether the actions of the inspectors were in compliance with state law. The state courts have not questioned the right of the district court to take the action it did and held the federal judgment entitled to preclusive effect in the state courts on the particular issues litigated in the federal courts. In applying the abstention doctrine a federal district court has discretion in declining to exercise or postponing the exercise of jurisdiction it already has in deference to a state court resolution of underlying issues of state law. Railroad Comm’n of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). Abstention is appropriate only where the issue of state law is uncertain, Harman v. Forssenius, 380 U.S. 528, 85 S.Ct. 1177, 14 L.Ed.2d 50 (1965), and where “the delay and expense to which the application of the abstention doctrine inevitably gives rise” can be justified. England v. Board of Medical Examiners, 376 U.S. 411, 418, 84 S.Ct. 461, 11 L.Ed.2d 440 (1964). However, abstention is not automatic whenever a question of state law may be involved. As the Court said in Baggett v. Bullitt, 377 U.S. 360, 376-77, 84 S.Ct. 1316, 1326, 12 L.Ed.2d 377 (1964), a case in which the Court considered abstention to be unnecessary: In the bulk of abstention cases in this Court, * * * the unsettled issue of state law principally concerned the applicability of the challenged statute to a certain person or a defined course of conduct, whose resolution in a particular manner would eliminate the constitutional issue and terminate the litigation. This statement reflects the judicial policy of avoiding the adjudication of federal constitutional questions unless they are ripe and are squarely presented by the record. “The basic question involved in [federal preemption] cases, however, is never one of interpretation of the Federal Constitution but inevitably one of comparing two statutes.” Swift & Co. v. Wickham, 382 U.S. 111, 120, 86 S.Ct. 258, 264, 15 L.Ed.2d 194 (1965). Thus we do not have a situation where a state law interpretation by a state court may eliminate a federal constitutional question. Cf. Reetz v. Bozanich, 397 U.S. 82, 90 S.Ct. 788, 25 L.Ed.2d 68 (1970). There is no contention by Becker, Jones, or Christensen that California law is unclear or ambiguous or that the construction of California law in the state courts will obviate a. decision on Rath’s federal preemption claim. The California statutes and regulations apply to Rath without question. We think this case is akin to Harman v. Forssenius, supra, in which the Court said: “If the state statute in question, although never interpreted by a state tribunal, is not fairly subject to an interpretation which will render unnecessary or substantially modify the federal * * * question, it is the duty of the federal court to exercise its properly invoked jurisdiction. Baggett v. Bullitt, 377 U.S. 360, 375-379 [84 S.Ct. 1316, 1324-1326, 12 L.Ed.2d 377].” We hold that the district court did not abuse its discretion in refusing to abstain. An action is deemed to be pending from the time of its commencement until its final determination upon appeal, or until the time for appeal has passed, * * *. II. In holding 9 CFR 317.2(h)(2) invalid, the district court said: [The section] is void for its inadequacy to set any recognizable standard upon which any individual may measure his conduct or his compliance with the law by which he must order his personal or business life. 357 F.Supp. at 534. Rath alleges two bases of error: (1) the validity of the regulation was not put in issue by the parties below and should not have been considered by the district court; and (2) the district court erred on the merits of the issue. Rule 16 of the Federal Question: What type of court made the original decision? A. Federal district court (single judge) B. 3 judge district court C. State court D. Bankruptcy court, referee in bankruptcy, special master E. Federal magistrate F. Federal administrative agency G. Special DC court H. Other I. Not ascertained Answer:
sc_decisiondirection
A
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. LANDON, DISTRICT DIRECTOR OF THE IMMIGRATION AND NATURALIZATION SERVICE v. PLASENCIA No. 81-129. Argued October 5, 1982 Decided November 15, 1982 O’Connor, J., delivered the opinion of the Court, in which Burger, C. J., and Brennan, White, Blackmun, Powell, Rehnquist, and Stevens, JJ., joined. Marshall, J., filed an opinion concurring in part and dissenting in part, post, p. 37. Elliott Schulder argued the cause for petitioner. With him on the briefs were Solicitor General Lee and Deputy Solicitor General Getter. Gary H. Manulkin argued the cause and filed a brief for respondent. Justice O’Connor delivered the opinion of the Court. Following an exclusion hearing, the Immigration and Naturalization Service (INS) denied the respondent, a permanent resident alien, admission to the United States when she attempted to return from a brief visit abroad. Reviewing the respondent’s subsequent petition for a writ of habeas corpus, the Court of Appeals vacated the decision, holding that the question whether the respondent was attempting to “enter” the United States could be litigated only in a deportation hearing and not in an exclusion hearing. Because we conclude that the INS has statutory authority to proceed in an exclusion hearing, we reverse the judgment below. We remand to allow the Court of Appeals to consider whether the respondent, a permanent resident alien, was accorded due process at the exclusion hearing. I Respondent Maria Antonieta Plasencia, a citizen of El Salvador, entered the United States as a permanent resident alien in March 1970. She established a home in Los Angeles with her husband, a United States citizen, and their minor children. On June 27, 1975, she and her husband traveled to Tijuana, Mexico. During their brief stay in Mexico, they met with several Mexican and Salvadoran nationals and made arrangements to assist their illegal entry into the United States. She agreed to transport the aliens to Los Angeles and furnished some of the aliens with alien registration receipt cards that belonged to her children. When she and her husband attempted to cross the international border at 9:27 on the evening of June 29, 1975, an INS officer at the port of entry found six nonresident aliens in the Plasencias’ car. The INS detained the respondent for further inquiry pursuant to § 235(b) of the Immigration and Nationality Act of 1952 (Act), 66 Stat. 182, as amended, 8 U. S. C. §1101 et seq. In a notice dated June 30, 1975, the INS charged her under §212(a)(31) of the Act, 8 U. S. C. § 1182(a)(31), which provides for the exclusion of any alien seeking admission “who at any time shall have, knowingly and for gain, encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law,” and gave notice that it would hold an exclusion hearing at 11 a. m. on June 30, 1975. An Immigration Law Judge conducted the scheduled exclusion hearing. After hearing testimony from the respondent, her husband, and three of the aliens found in the Plasencias’ car, the judge found “clear, convincing and unequivocal” evidence that the respondent did “knowingly and for gain encourage, induce, assist, abet, or aid nonresident aliens” to enter or try to enter the United States in violation of law. He also found that the respondent’s trip to Mexico was a “meaningful departure” from the United States and that her return to this country was therefore an “entry” within the meaning of § 101(a)(13), 8 U. S. C. § 1101(a)(13). On the basis of these findings, he ordered her “excluded and deported.” After the Board of Immigration Appeals (BIA) dismissed her administrative appeal and denied her motion to reopen the proceeding, the respondent filed a petition for a writ of habeas corpus in the United States District Court, seeking release from the exclusion and deportation order. The Magistrate initially proposed a finding that, on the basis of evidence adduced at the exclusion hearing, “a meaningful departure did not occur... and that therefore [the respondent] is entitled to a deportation hearing.” After considering the Government’s objections, the Magistrate declared that the Government could relitigate the question of “entry” at the deportation hearing. The District Court adopted the Magistrate’s final report and recommendation and vacated the decision of the BIA, instructing the INS to proceed against respondent, if at all, only in deportation proceedings. The Court of Appeals for the Ninth Circuit affirmed. Plasencia v. Sureck, 637 F. 2d 1286 (1980). ► — I The immigration laws create two types of proceedings in which aliens can be denied the hospitality of the United States: deportation hearings and exclusion hearings. See generally Leng May Ma v. Barber, 357 U. S. 185, 187 (1958). The deportation hearing is the usual means of proceeding against an alien already physically in the United States, and the exclusion hearing is the usual means of proceeding against an alien outside the United States seeking admission. The two types of proceedings differ in a number of ways. See generally Maldonado-Sandoval v. INS, 518 F. 2d 278, 280, n. 3 (CA9 1975). An exclusion proceeding is usually held at the port of entry, while a deportation hearing is usually held near the residence of the alien within the United States, see 1A C. Gordon & H. Rosenfield, Immigration Law and Procedure § 5.6c (rev. ed. 1981). The regulations of the Attorney General, issued under the authority of § 242(b), 8 U. S. C. § 1252(b), require in most deportation proceedings that the alien be given seven days’ notice of the charges against him, 8 CFR §242.1(b) (1982), while there is no requirement of advance notice of the charges for an alien subject to exclusion proceedings. Indeed, the BIA has held that, “as long as the applicant is informed of the issues confronting him at some point in the hearing, and he is given a reasonable opportunity to meet them,” no further notice is necessary. In re Salazar, 17 I. & N. Dec. 167, 169 (1979). Also, if the INS prevails in a deportation proceeding, the alien may appeal directly to the court of appeals, § 106(a), 75 Stat. 651, as amended, 8 U. S. C. §1105a(a) (1976 ed. and Supp. V), while the alien can challenge an exclusion order only by a petition for a writ of habeas corpus, § 106(b), 75 Stat. 653, 8 U. S. C. § 1105a(b). Finally, the alien who loses his right to reside in the United States in a deportation hearing has a number of substantive rights not available to the alien who is denied admission in an exclusion proceeding: he can, within certain limits, designate the country of deportation, § 243(a), 8 U. S. C. § 1253(a) (1976 ed. and Supp. V); he may be able to depart voluntarily, § 244(e), 8 U. S. C. § 1254(e) (1976 ed., Supp. V), avoiding both the stigma of deportation, § 242(b), 8 U. S. C. § 1252(b) (1976 ed. and Supp. V), and the limitations on his selection of destination, § 243(a), 8 U. S. C. § 1253(a) (1976 ed. and Supp. V); or he can seek suspension of deportation, § 242(e), 8 U. S. C. § 1252(e) (1976 ed., Supp. V). The respondent contends that she was entitled to have the question of her admissibility litigated in a deportation hearing, where she would be the beneficiary of the procedural protections and the substantive rights outlined above. Our analysis of whether she is entitled to a deportation rather than an exclusion hearing begins with the language of the Act. Section 285(a) of the Act, 8 U. S. C. § 1225(a), permits the INS to examine “[ajll aliens” who seek “admission or readmission to” the United States and empowers immigration officers to take evidence concerning the privilege of any person suspected of being an alien “to enter, reenter, pass through, or reside” in the United States. (Emphasis added.) Moreover, “every alien” who does not appear “to be clearly and beyond a doubt entitled to land shall be detained” for further inquiry. § 285(b). If an alien is so detained, the Act directs the special inquiry officer to determine whether the arriving alien “shall be allowed to enter or shall be excluded and deported.” § 236(a), 8 U. S. C. § 1226(a). The proceeding before that officer, the exclusion hearing, is by statute “the sole and exclusive procedure for determining admissibility of a person to the United States....” Ibid. The Act’s legislative history also emphasizes the singular role of exclusion hearings in determining whether an alien should be admitted. The Reports of both the House and Senate state: “The special inquiry officer is empowered to determine whether an alien detained for further inquiry shall be excluded and deported or shall be allowed to enter after he has given the alien a hearing. The procedure established in the bill is made the sole and exclusive procedure for determining the admissibility of a person to the United States.” S. Rep. No. 1137, 82d Cong., 2d Sess., 29 (1952); H. R. Rep. No. 1365, 82d Cong., 2d Sess., 56 (1952). The language and history of the Act thus clearly reflect a congressional intent that, whether or not the alien is a permanent resident, admissibility shall be determined in an exclusion hearing. Nothing in the statutory language or the legislative history suggests that the respondent’s status as a permanent resident entitles her to a suspension of the exclusion hearing or requires the INS to proceed only through a deportation hearing. Under the terms of the Act, the INS properly proceeded in an exclusion hearing to determine whether respondent was attempting to “enter” the United States and whether she was excludable. HH HH To avoid the impact of the statute, the respondent contends, and the Court of Appeals agreed, that unless she was “entering,” she was not subject to exclusion proceedings, and that prior decisions of this Court indicate that she is entitled to have the question of “entry” decided in deportation proceedings. The parties agree that only “entering” aliens are subject to exclusion. See Brief for Petitioner 19. That view accords with the language of the statute, which describes the exclusion hearing as one to determine whether the applicant “shall be allowed to enter or shall be excluded and deported.” § 236(a), 8 U. S. C. § 1226(a) (emphasis added). But the respondent’s contention that the question of entry can be determined only in deportation proceedings reflects a misconception of our decisions. In Rosenberg v. Fleuti, 374 U. S. 449 (1963), we faced the question whether a resident alien’s return from an afternoon trip across the border was an “entry” for immigration law purposes. The definition of that term was the same then as it is now: it means “any coming of an alien into the United States... except that an alien having a lawful permanent residence in the United States shall not be regarded as making an entry into the United States for the purposes of the immigration laws if the alien proves to the satisfaction of the Attorney General that his departure to a foreign port or place or to an outlying possession was not intended or reasonably to be expected by him... § 101(a)(13), 8 U. S. C. § 1101(a)(13). We held in Fleuti that the “intent exception” refers to an intent to depart in a “manner which can be regarded as meaningfully interruptive of the alien’s permanent residence.” 374 U.S, at 462. Thus, an “innocent, casual, and brief excursion” by a resident alien outside this country’s borders would not subject him to the consequences of an “entry” on his return. Ibid. If, however, “the purpose of leaving the country is to accomplish some object which is itself contrary to some policy reflected in our immigration laws, it would appear that the interruption of residence thereby occurring would properly be regarded as meaningful.” Ibid. That distinction both protects resident aliens from “unsuspected risks and unintended consequences of... a wholly innocent action,” ibid., and gives effect to the language of § 101(a)(13). The Government has argued in this case that Plasencia violated the immigration laws by attempting to smuggle aliens for gain. Therefore, her departure was “meaningfully interruptive” of her residence, she was attempting an “entry,” and she was subject to exclusion proceedings. And, the Government urges, under §212(a)(31), 8 U. S. C. § 1182(a)(31), she was excludable because she had attempted to smuggle aliens for gain. Plasencia, on the other hand, argues that it would “violat[e] both the scope and spirit,” Brief for Respondent 15, of Fleuti to permit the INS to litigate questions of “entry” in exclusion proceedings. The Court of Appeals viewed Fleuti as a deportation case rather than an exclusion case, 637 F. 2d, at 1288, and therefore not relevant in deciding whether the question of “entry” could be determined in exclusion proceedings. For guidance on that decision, the Court of Appeals turned to Kwong Hai Chew v. Colding, 344 U. S. 590 (1953), which it read to hold that a resident alien returning from a brief trip “could not be excluded without the procedural due process to which he would have been entitled had he never left the country”— i. e., in this case, a deportation proceeding. 637 F. 2d, at 1288. The court concluded that Plasencia was entitled to litigate her admissibility in deportation proceedings. It would be “circular” and “unfair,” thought the court, to allow the INS to litigate the question of “entry” in exclusion proceedings when that question also went to the merits of the respondent’s admissibility. Id., at 1288-1289. We disagree. The reasoning of Chew was only that a resident alien returning from a brief trip has a right to due process just as would a continuously present resident alien. It does not create a right to identical treatment for these two differently situated groups of aliens. As the Ninth Circuit seemed to recognize, if the respondent here was making an “entry,” she would be subject to exclusion proceedings. It is no more “circular” to allow the immigration judge in the exclusion proceeding to determine whether the alien is making an entry than it is for any court to decide that it has jurisdiction when the facts relevant to the determination of jurisdiction are also relevant to the merits. Thus, in United States v. Sing Tuck, 194 U. S. 161 (1904), this Court held that an immigration inspector could make a determination whether an applicant for admission was an alien or a citizen, although only aliens were subject to exclusion. Cf. Land v. Dollar, 330 U. S. 731, 739 (1947) (district court has jurisdiction to determine its jurisdiction by proceeding to a decision on the merits). Nor is it in any way “unfair” to decide the question of entry in exclusion proceedings as long as those proceedings themselves are fair. Finally, the use of exclusion proceedings violates neither the “scope” nor the “spirit” of Fleuti. As the Court of Appeals held, that case only defined “entry” and did not designate the forum for deciding questions of entry. The statutory scheme is clear: Congress intended that the determinations of both “entry” and the existence of grounds for exclusion could be made at an exclusion hearing. > HH Our determination that the respondent is not entitled to a deportation proceeding does not, however, resolve this case. In challenging her exclusion in the District Court, Plasencia argued not only that she was entitled to a deportation proceeding but also that she was denied due process in her exclusion hearing. See App. 5, ¶ 9; Record 19, 20, 23. We agree with Plasencia that under the circumstances of this case, she can invoke the Due Process Clause on returning to this country, although we do not decide the contours of the process that is due or whether the process accorded Plasencia was insufficient. This Court has long held that an alien seeking initial admission to the United States requests a privilege and has no constitutional rights regarding his application, for the power to admit or exclude aliens is a sovereign prerogative. See, e. g., United States ex rel. Knauff v. Shaughnessy, 338 U. S. 537, 542 (1950); Nishimura Ekiu v. United States, 142 U. S. 651, 659-660 (1892). Our recent decisions confirm that view. See, e. g., Fiallo v. Bell, 430 U. S. 787, 792 (1977); Kleindienst v. Mandel, 408 U. S. 753 (1972). As we explained in Johnson v. Eisentrager, 339 U. S. 763, 770 (1950), however, once an alien gains admission to our country and begins to develop the ties that go with permanent residence, his constitutional status changes accordingly. Our cases have frequently suggested that a continuously present resident alien is entitled to a fair hearing when threatened with deportation, see, e. g., United States ex rel. Tisi v. Tod, 264 U. S. 131, 133, 134 (1924); Low Wah Suey v. Backus, 225 U. S. 460, 468 (1912) (hearing may be conclusive “when fairly conducted”); see also Kwong Hai Chew, 344 U. S., at 598, n. 8, and, although we have only rarely held that the procedures provided by the executive were inadequate, we developed the rule that a continuously present permanent resident alien has a right to due process in such a situation. See, e. g., United States ex rel. Vajtauer v. Commissioner of Immigration, 273 U. S. 103, 106 (1927); The Japanese Immigrant Case, 189 U. S. 86,100-101 (1903); see also Wong Yang Sung v. McGrath, 339 U. S. 33, 49-50 (1950); Bridges v. Wixon, 326 U. S. 135, 153-154 (1945). The question of the procedures due a returning resident alien arose in Kwong Hai Chew v. Colding, supra. There, the regulations permitted the exclusion of an arriving alien without a hearing. We interpreted those regulations not to apply to Chew, a permanent resident alien who was returning from a 5-month voyage abroad as a crewman on an American merchant ship. We reasoned that, “[f ]or purposes of his constitutional right to due process, we assimilate petitioner’s status to that of an alien continuously residing and physically present in the United States.” 344 U. S., at 596. Then, to avoid constitutional problems, we construed the regulation as inapplicable. Although the holding was one of regulatory interpretation, the rationale was one of constitutional law. Any doubts that Chew recognized constitutional rights in the resident alien returning from a brief trip abroad were dispelled by Rosenberg v. Fleuti, where we described Chew as holding “that the returning resident alien is entitled as a matter of due process to a hearing on the charges underlying any attempt to exclude him.” 374 U. S., at 460. If the permanent resident alien’s absence is extended, of course, he may lose his entitlement to “assimilation of his] status,” Kwong Hai Chew v. Colding, supra, at 596, to that of an alien continuously residing and physically present in the United States. In Shaughnessy v. United States ex rel. Mezei, 345 U. S. 206 (1953), this Court rejected the argument of an alien who had left the country for some 20 months that he was entitled to due process in assessing his right to admission on his return. We did not suggest that no returning resident alien has a right to due process, for we explicitly reaffirmed Chew. We need not now decide the scope of Mezei; it does not govern this case, for Plasencia was absent from the country only a few days, and the United States has conceded that she has a right to due process, see Tr. of Oral Arg. 6, 9, 14; Brief for Petitioner 9-10, 20-21. The constitutional sufficiency of procedures provided in any situation, of course, varies with the circumstances. See, e. g., Lassiter v. Department of Social Services, 452 U. S. 18, 24-25 (1981); Greenholtz v. Nebraska Penal Inmates, 442 U. S. 1, 12 (1979); Morrissey v. Brewer, 408 U. S. 471, 481 (1972). In evaluating the procedures in any case, the courts must consider the interest at stake for the individual, the risk of an erroneous deprivation of the interest through the procedures used as well as the probable value of additional or different procedural safeguards, and the interest of the government in using the current procedures rather than additional or different procedures. Mathews v. Eldridge, 424 U. S. 319, 334-335 (1976). Plasencia’s interest here is, without question, a weighty one. She stands to lose the right “to stay and live and work in this land of freedom,” Bridges v. Wixon, supra, at 154. Further, she may lose the right, to rejoin her immediate family, a right that ranks high among the interests of the individual. See, e. g., Moore v. City of East Cleveland, 431 U. S. 494, 499, 503-504 (1977) (plurality opinion); Stanley v. Illinois, 405 U. S. 645, 651 (1972). The Government’s interest in efficient administration of the immigration laws at the border also is weighty. Further, it must weigh heavily in the balance that control over matters of immigration is a sovereign prerogative, largely within the control of the Executive and the Legislature. See, e. g., Fiallo, supra, at 792-793; Knauff, supra, at 542-543; The Japanese Immigrant Case, supra, at 97. The role of the judiciary is limited to determining whether the procedures meet the essential standard of fairness under the Due Process Clause and does not extend to imposing procedures that merely displace congressional choices of policy. Our previous discussion has shown that Congress did not intend to require the use of deportation procedures in cases such as this one. Thus, it would be improper simply to impose deportation procedures here because the reviewing court may find them preferable. Instead, the courts must evaluate the particular circumstances and determine what procedures would satisfy the minimum requirements of due process on the reentry of a permanent resident alien. Plasencia questions three aspects of the procedures that the Government employed in depriving her of these interests. First, she contends that the Immigration Law Judge placed the burden of proof upon her. In a later proceeding in Chew, the Court of Appeals for the District of Columbia Circuit held, without mention of the Due Process Clause, that, under the law of the case, Chew was entitled to a hearing at which the INS was the moving party and bore the burden of proof. Kwong Hai Chew v. Rogers, 103 U. S. App. D. C. 228, 257 F. 2d 606 (1958). The BIA has accepted that decision, and although the Act provides that the burden of proof is on the alien in an exclusion proceeding, § 291, 8 U. S. C. § 1361 (1976 ed., Supp. Y), the BIA has followed the practice of placing the burden on the Government when the alien is a permanent resident alien. See, e. g., In re Salazar, 17 I. & N. Dec., at 169; In re Kane, 15 I. & N. Dec. 258, 264 (BIA 1975); In re Becerra-Miranda, 12 I. & N. Dec. 358, 363-364, 366 (BIA 1967). There is no explicit statement of the placement of the burden of proof in the Attorney General’s regulations or in the Immigration Law Judge’s opinion in this case and no finding on the issue below. Second, Plasencia. contends that the notice provided her was inadequate. She apparently had less than 11 hours’ notice of the charges and the hearing. The regulations do not require any advance notice of the charges against the alien in an exclusion hearing, and the BIA has held that it is sufficient that the alien have notice of the charges at the hearing, In re Salazar, supra, at 169. The United States has argued to us that Plasencia could have sought a continuance. It concedes, however, that there is no explicit statutory or regulatory authorization for a continuance. Finally, Plasencia contends that she was allowed to waive her right to representation, § 292, 8 U. S. C. § 1362, without a full understanding of the right or of the consequences of waiving it. Through an interpreter, the Immigration Law Judge informed her at the outset of the hearing, as required by the regulations, of her right to be represented. He did not tell her of the availability of free legal counsel, but at the time of the hearing, there was no administrative requirement that he do so. 8 CFR § 236.2(a) (1975). The Attorney General has since revised the regulations to require that, when qualified free legal services are available, the immigration law judge must inform the alien of their existence and ask whether representation is desired. 44 Fed. Reg. 4654 (1979) (codified at 8 CFR § 236.2(a) (1982)). As the United States concedes, the hearing would not comply with the current regulations. See Tr. of Oral Arg. 11. If the exclusion hearing is to ensure fairness, it must provide Plasencia an opportunity to present her case effectively, though at the same time it cannot impose an undue burden on the Government. It would not, however, be appropriate for us to decide now whether the new regulation on the right to notice of free legal services is of constitutional magnitude or whether the remaining procedures provided comport with the Due Process Clause. Before this Court, the parties have devoted their attention to the entitlement to a deportation hearing rather than to the sufficiency of the procedures in the exclusion hearing. Whether the several hours’ notice gave Plasencia a realistic opportunity to prepare her case for effective presentation in the circumstances of an exclusion hearing without counsel is a question we are not now in a position to answer. Nor has the Government explained the burdens that it might face in providing more elaborate procedures. Thus, although we recognize the gravity of Plasencia’s interest, the other factors relevant to due process analysis — the risk of erroneous deprivation, the efficacy of additional procedural safeguards, and the Government’s interest in providing no further procedures — have not been adequately presented to permit us to assess the sufficiency of the hearing. We remand to the Court of Appeals to allow the parties to explore whether Plasencia was accorded due process under all of the circumstances. Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Section 235, as set forth in 8 U. S. C. § 1225, provides in part: (a) “The inspection... of aliens (including alien crewmen) seeking admission or readmission to... the United States shall be conducted by immigration officers, except as otherwise provided in regard to special inquiry officers. All aliens arriving at ports of the United States shall be examined by one or more immigration officers at the discretion of the Attorney General and under such regulations as he may prescribe....” (b) “Every alien... who may not appear to the examining immigration officer at the port of arrival to be clearly and beyond a doubt entitled to land shall be detained for further inquiry to be conducted by a special inquiry officer.” The hearing was authorized by § 236(a), which, as set forth in 8 U. S. C. § 1226(a), provides: “A special inquiry officer shall conduct proceedings under this section, administer oaths, present and receive evidence, and interrogate, examine, and cross-examine the alien or witnesses. He shall have authority in any case to determine whether an arriving alien who has been detained for further inquiry under section 1225 of this title shall be allowed to enter or shall be excluded and deported. The determination of such special inquiry officer shall be based only on the evidence produced at the inquiry.... Proceedings before a special inquiry officer under this section shall be conducted in accordance with this section, the applicable provisions of sections 1225 and 1375(b) of this title, and such regulations as the Attorney General shall prescribe, and shall be the sole and exclusive procedure for determining admissibility of a person to the United States under the provisions of this section.... A complete record of the proceedings and of all testimony and evidence produced at such inquiry, shall be kept.” Section 101(a)(13), 8 U. S. C. § 1101(a)(13), defines “entry” as “any coming of an alien into the United States, from a foreign port or place or from an outlying possession, whether voluntarily or otherwise, except that an alien having a lawful permanent residence in the United States shall not be regarded as making an entry into the United States for the purposes of the immigration laws if the alien proves to the satisfaction of the Attorney General that his departure to a foreign port or place or to an outlying possession was not intended or reasonably to be expected by him or his presence in a foreign port or place or in an outlying possession was not voluntary: Provided, That no person whose departure from the United States was occasioned by deportation proceedings, extradition, or other legal process shall be held to be entitled to such exception.” Voluntary departure for an alien who would otherwise be deported also means that he will not be subject to §212(a)(17), 8 U. S. C. § 1182(a)(17), which, at the time of Plasencia’s hearing, required aliens who had once been deported to seek prior approval of the Attorney General before reentering. There was no comparable requirement of prior approval for aliens who had been excluded and sought again to enter more than one year later. § 212(a)(16), 8 U. S. C. § 1182(a)(16). The requirement of prior approval for deported aliens now applies only within five years of deportation. 95 Stat. 1612, §212(a)(17), 8 U. S. C. § 1182(a)(17) (1976 ed., Supp. V). Apparently the practice of the INS is to determine this question in exclusion proceedings. See In re Leal, 15 I. & N. Dec. 477, 478-479 (BIA 1975); In re Becerra-Miranda, 12 I. & N. Dec. 358, 362-363 (BIA 1967). Section 101(a)(13), 8 U. S. C. § 1101(a)(13), which defines “entry,” was enacted in 1952 in response to the harsh results visited upon resident aliens by earlier restrictive interpretations of the term. Both the House and Senate Reports contained identical explanatory language: “Normally an entry occurs when the alien crosses the borders of the United States and makes a physical entry, and the question of whether an entry has been made is susceptible of a precise determination. However, for the purposes of determining the effect of a subsequent entry upon the status of an alien who has previously entered the United States and resided therein, the preciseness of the term ‘entry’ has not been found to be as apparent. Earlier judicial constructions of the term in the immigration laws, as set forth in Volpe v. Smith (289 U. S. 422 (1933)), generally held that the term ‘entry’ included any coming of an alien from a foreign country to the United States whether such coming be the first or a subsequent one. More recently, the courts have departed from the rigidity of that rule and have recognized that an alien does not make an entry upon his return to the United States from a foreign country where he had no intent to leave the United States (Di Pasquale v. Karnuth, 158 F. 2d 878 (C. C. A. 2d 1947)), or did not leave the country voluntarily (Delgadillo v. Carmichael, 332 U. S. 388 (1947)). The bill defines the term ‘entry’ as precisely as practicable, giving due recognition to the judicial precedents. Thus any coming of an alien from a foreign port or place or an outlying possession into the United States is to be considered an entry, whether voluntary or otherwise, unless the Attorney General is satisfied that the departure of the alien, other than a deportee, from this country was unintentional or was not voluntary.” S. Rep. No. 1137, 82d Cong., 2d Sess., 4 (1952); H. R. Rep. No. 1365, 82d Cong., 2d Sess., 32 (1952). In Di Pasquale, the court refused to allow a deportation that depended upon an “entry” that occurred after an overnight train on which an alien was a passenger passed through Canada on its way from Buffalo to Detroit. In Delgadillo, the Court refused to define as an “entry” the return of an alien taken to Cuba to recuperate after the merchant ship on which he sailed was torpedoed in the Caribbean diming World War II. Indeed, we expressly declined to reach the question whether Chew himself was entitled to a deportation proceeding. We stated: “From a constitutional point of view, he is entitled to due process without regard to whether or not, for immigration purposes, he is to be treated as an entrant alien, and we do not now reach the question whether he is to be so treated.” 344 U. S., at 600. The statute provides a right to representation without expense Question: What is the ideological direction of the decision? A. Conservative B. Liberal C. Unspecifiable Answer:
sc_certreason
K
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the reason, if any, given by the court for granting the petition for certiorari. OHIO v. KOVACS, dba B & W ENTERPRISES et al. No. 83-1020. Argued October 10, 1984 Decided January 9, 1985 White, J., delivered the opinion for a unanimous Court. O’Connor, J., filed a concurring opinion, post, p. 285. E. Dennis Muchnicki, Assistant Attorney General of Ohio, argued the cause for petitioner. With him on the briefs was Anthony J. Celebrezze, Jr., Attorney General. Kathryn A. Oberly argued the cause for the United States as amicus curiae urging reversal. With her on the brief were Solicitor General Lee, Assistant Attorney General Habicht, Deputy Solicitor General Claiborne, Peter R. Steenland, Jr., and Dirk D. Snel. David A. Caldwell argued the cause and filed a brief for respondent. Briefs of amici curiae urging reversal were filed for the Commonwealth of Pennsylvania et al. by Leroy S. Zimmerman, Attorney General, Howard J. Wein, and James D. Morris; and for the Council of State Governments et al. by Lawrence R. Velvet. Justice White delivered the opinion of the Court. Petitioner State of Ohio obtained an injunction ordering respondent William Kovacs to clean up a hazardous waste site. A receiver was subsequently appointed. Still later, Kovacs filed a petition for bankruptcy. The question before us is whether, in the circumstances present here, Kovacs’ obligation under the injunction is a “debt” or “liability on a claim” subject to discharge under the Bankruptcy Code. I Kovacs was the chief executive officer and stockholder of Chem-Dyne Corp., which with other business entities operated an industrial and hazardous waste disposal site in Hamilton, Ohio. In 1976, the State sued Kovacs and the business entities in state court for polluting public waters, maintaining a nuisance, and causing fish kills, all in violation of state environmental laws. In 1979, both in his individual capacity and on behalf of Chem-Dyne, Kovacs signed a stipulation and judgment entry settling the lawsuit. Among other things, the stipulation enjoined the defendants from causing further pollution of the air or public waters, forbade bringing additional industrial wastes onto the site, required the defendants to remove specified wastes from the property, and ordered the payment of $75,000 to compensate the State for injury to wildlife. Kovacs and the other defendants failed to comply with their obligations under the injunction. The State then obtained the appointment in state court of a receiver, who was directed to take possession of all property and other assets of Kovacs and the corporate defendants and to implement the judgment entry by cleaning up the Chem-Dyne site. The receiver took possession of the site but had not completed his tasks when Kovacs filed a personal bankruptcy petition. Seeking to develop a basis for requiring part of Kovacs’ postbankruptcy income to be applied to the unfinished task of the receivership, the State then filed a motion in state court to discover Kovacs’ current income and assets. Kovacs requested that the Bankruptcy Court stay those proceedings, which it did. The State also filed a complaint in the Bankruptcy Court seeking a declaration that Kovacs’ obligation under the stipulation and judgment order to clean up the Chem-Dyne site was not dischargeable in bankruptcy because it was not a “debt,” a liability on a “claim,” within the meaning of the Bankruptcy Code. In addition, the complaint sought an injunction against the bankruptcy trustee to restrain him from pursuing any action to recover assets of Kovacs in the hands of the receiver. The Bankruptcy Court ruled against Ohio, In re Kovacs, 29 B. R. 816 (SD Ohio 1982), as did the District Court. The Court of Appeals for the Sixth Circuit affirmed, holding that Ohio essentially sought from Kovacs only a monetary payment and that such a required payment was a liability on a claim that was dis-chargeable under the bankruptcy statute. In re Kovacs, 717 F. 2d 984 (1983). We granted certiorari to determine the dischargeability of Kovacs’ obligation under the affirmative injunction entered against him. 465 U. S. 1078 (1984). II Kovacs alleges that the Army Corps of Engineers, using funds recovered from those concerns that generated the wastes, has removed all industrial wastes from the site and that if he has an obligation to pay those expenses, the obligation is owed to the United States, not the State. Kovacs urges that the case is therefore moot. The State argues that the case is not moot because the removal of the barrels and wastes from the surface did not satisfy all of Kovacs’ obligations to clean up the site; it is said that the ground itself remains permeated with toxic materials that must be removed if further pollution of the public waters is to be avoided. We perceive nothing feigned or frivolous about the State’s submission. Sibron v. New York, 392 U. S. 40, 57 (1968). The State surely has a stake in the outcome of this case, United States Parole Comm’n v. Geraghty, 445 U. S. 388, 397 (1980), which in our view is not moot. We proceed to the merits. Ill Except for the nine kinds of debts saved from discharge by 11 U. S. C. § 523(a), a discharge in bankruptcy discharges the debtor from all debts that arose before bankruptcy. § 727(b). It is not claimed here that Kovacs’ obligation under the injunction fell within any of the categories of debts excepted from discharge by §523. Rather, the State submits that the obligation to clean up the Chem-Dyne site is not a debt at all within the meaning of the bankruptcy law. For bankruptcy purposes, a debt is a liability on a claim. § 101(11). A claim is defined by § 101(4) as follows: “(4) ‘claim’ means— “(A) right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured; or “(B) right to an equitable remedy for breach of performance if such breach gives rise to a right to payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured, unma-tured, disputed, undisputed, secured, or unsecured.” The provision at issue here is § 101(4)(B). For the purposes of that section, there is little doubt that the State had the right to an equitable remedy under state law and that the right has been reduced to judgment in the form of an injunction ordering the cleanup. The State argues, however, that the injunction it has secured is not a claim against Kovacs for bankruptcy purposes because (1) Kovacs’ default was a breach of the statute, not a breach of an ordinary commercial contract which concededly would give rise to a claim; and (2) Kovacs’ breach of his obligation under the injunction did not give rise to a right to payment within the meaning of § 101(4)(B). We are not persuaded by either submission. There is no indication in the language of the statute that the right to performance cannot be a claim unless it arises from a contractual arrangement. The State resorted to the courts to enforce its environmental laws against Kovacs and secured a negative order to cease polluting, an affirmative order to clean up the site, and an order to pay a sum of money to recompense the State for damage done to the fish population. Each order was one to remedy an alleged breach of Ohio law; and if Kovacs’ obligation to pay $75,000 to the State is a debt dischargeable in bankruptcy, which the State freely concedes, it makes little sense to assert that because the cleanup order was entered to remedy a statutory violation, it cannot likewise constitute a claim for bankruptcy purposes. Furthermore, it is apparent that Congress desired a broad definition of a “claim” and knew how to limit the application of a provision to contracts when it desired to do so. Other provisions cited by Ohio refute, rather than support, its strained interpretation. The courts below also found little substance in the submission that the cleanup obligation did not give rise to a right to payment that renders the order dischargeable under §727. The definition of “claim” in H. R. 8200 as originally drafted would have deemed a right to an equitable remedy for breach of performance a claim even if it did not give rise to a right to payment. The initial Senate definition of claim was narrower, and a compromise version, §101(4), was finally adopted. In that version, the key phrases “equitable remedy,” “breach of performance,” and “right to payment” are not defined. See 11 U. S. C. § 101. Nor are the differences between the successive versions explained. The legislative history offers only a statement by the sponsors of the Bankruptcy Reform Act with respect to the scope of the provision: “Section 101(4)(B) ... is intended to cause the liquidation or estimation of contingent rights of payment for which there may be an alternative equitable remedy with the result that the equitable remedy will be susceptible to being discharged in bankruptcy. For example, in some States, a judgment for specific performance may be satisfied by an alternative right to payment in the event performance is refused; in that event, the creditor entitled to specific performance would have a ‘claim’ for purposes of a proceeding under title 11.” We think the rulings of the courts below were wholly consistent with the statute and its legislative history, sparse as it is. The Bankruptcy Court ruled as follows, In re Kovacs, 29 B. R., at 818: “There is no suggestion by plaintiff that defendant can render performance under the affirmative obligation other than by the payment of money. We therefore conclude that plaintiff has a claim against defendant within the meaning of 11 U. S. C. § 101(4), and that defendant owes plaintiff a debt within the meaning of 11 U. S. C. §101(11). Furthermore, we have concluded that that debt is dischargeable.” The District Court affirmed, primarily because it was bound by and saw no error in the Court of Appeals’ prior opinion holding that the State was seeking no more than a money judgment as an alternative to requiring Kovacs personally to perform the obligations imposed by the injunction. To hold otherwise, the District Court explained, “would subvert Congress’ clear intention to give debtors a fresh start.” App. JA-16. The Court of Appeals also affirmed, rejecting the State’s insistence that it had no right to, and was not attempting to enforce, an alternative right to payment: “Ohio does not suggest that Kovacs is capable of personally cleaning up the environmental damage he may have caused. Ohio claims there is no alternative right to payment, but when Kovacs failed to perform, state law gave a state receiver total control over all Kovacs’ assets. Ohio later used state law to try and discover Kovacs’ post-petition income and employment status in an apparent attempt to levy on his future earnings. In reality, the only type of performance in which Ohio is now interested is a money payment to effectuate the Chem-Dyne cleanup. “The impact of its attempt to realize upon Kovacs’ income or property cannot be concealed by legerdemain or linguistic gymnastics. Kovacs cannot personally clean up the waste he wrongfully released into Ohio waters. He cannot perform the affirmative obligations properly imposed upon him by the State court except by paying money or transferring over his own financial resources. The State of Ohio has acknowledged this by its steadfast pursuit of payment as an alternative to personal performance.” 717 P. 2d, at 987-988. As we understand it, the Court of Appeals held that, in the circumstances, the cleanup duty had been reduced to a monetary obligation. We do not disturb this judgment. The injunction surely obliged Kovacs to clean up the site. But when he failed to do so, rather than prosecute Kovacs under the environmental laws or bring civil or criminal contempt proceedings, the State secured the appointment of a receiver, who was ordered to take possession of all of Kovacs’ nonexempt assets as well as the assets of the corporate defendants and to comply with the injunction entered against Kovacs. As wise as this course may have been, it dispossessed Kovacs, removed his authority over the site, and divested him of assets that might have been used by him to clean up the property. Furthermore, when the bankruptcy trustee sought to recover Kovacs’ assets from the receiver, the latter sought an injunction against such action. Although Kovacs had been ordered to “cooperate” with the receiver, he was disabled by the receivership from personally taking charge of and carrying out the removal of wastes from the property. What the receiver wanted from Kovacs after bankruptcy was the money to defray cleanup costs. At oral argument in this Court, the State’s counsel conceded that after the receiver was appointed, the only performance sought from Kovacs was the payment of money. Tr. of Oral Arg. 19-20. Had Kovacs furnished the necessary funds, either before or after bankruptcy, there seems little doubt that the receiver and the State would have been satisfied. On the facts before it, and with the receiver in control of the site, we cannot fault the Court of Appeals for concluding that the cleanup order had been converted into an obligation to pay money, an obligation that was dischargeable in bankruptcy. IV It is well to emphasize what we have not decided. First, we do not suggest that Kovacs’ discharge will shield him from prosecution for having violated the environmental laws of Ohio or for criminal contempt for not performing his obligations under the injunction prior to bankruptcy. Second, had a fine or monetary penalty for violation of state law been imposed on Kovacs prior to bankruptcy, § 523(a)(7) forecloses any suggestion that his obligation to pay the fine or penalty would be discharged in bankruptcy. Third, we do not address what the legal consequences would have been had Kovacs taken bankruptcy before a receiver had been appointed and a trustee had been designated with the usual duties of a bankruptcy trustee. Fourth, we do not hold that the injunction against bringing further toxic wastes on the premises or against any conduct that will contribute to the pollution of the site or the State’s waters is dischargeable in bankruptcy; we here address, as did the Court of Appeals, only the affirmative duty to clean up the site and the duty to pay money to that end. Finally, we do not question that anyone in possession of the site — whether it is Kovacs or another in the event the receivership is liquidated and the trustee abandons the property, or a vendee from the receiver or the bankruptcy trustee — must comply with the environmental laws of the State of Ohio. Plainly, that person or firm may not maintain a nuisance, pollute the waters of the State, or refuse to remove the source of such conditions. As the case comes to us, however, Kovacs has been dispossessed and the State seeks to enforce his cleanup obligation by a money judgment. The judgment of the Court of Appeals is Affirmed. Kovacs originally filed a reorganization petition under Chapter 11 of the Bankruptcy Code, 11U. S. C. § 1101 et seq., but converted the petition to a liquidation bankruptcy under Chapter 7. See 11 U. S. C. § 1112. The Bankruptcy Court held that the requested hearing was an effort to collect money from Kovacs in violation of the automatic stay provision. See 11 U. S. C. § 362. It entered a specific stay as well. The District Court affirmed, ruling that Ohio was trying to enforce a judgment obtained before filing of the bankruptcy petition. The Court of Appeals for the Sixth Circuit also found the hearing barred. In re Kovacs, 681 F. 2d 454 (1982). In that court’s view, while § 362(b) allowed governmental units to continue to enforce police powers through mandatory injunctions, it denied them the power to collect money in their enforcement efforts. Because of the later filing by Ohio of a complaint to declare that Kovacs’ obligations were not claims under bankruptcy, we granted certiorari, vacated the judgment of the Court of Appeals, and remanded to that court to consider whether the dispute over the stay was moot. 459 U. S. 1167 (1983). As far as we are advised, the Court of Appeals has taken no action on the remand. H. R. Rep. No. 95-595, p. 309 (1977); S. Rep. No. 95-989, p. 21 (1978). See 2 R. Levin & K. Klee, Collier on Bankruptcy ¶ 101-.04, p. 101-16.4 (15th ed. 1984). See 11 U. S. C. § 365 (assumption or rejection of executory contracts and leases). Congress created exemptions from discharge for claims involving penalties and forfeitures owed to a governmental unit, 11 U. S. C. § 523(a)(7), and for claims involving embezzlement and larceny. § 523(a)(4). If a bankruptcy debtor has committed larceny or embezzlement, giving rise to a remedy of either damages or equitable restitution under state law, the resulting liability for breach of an obligation created by law is clearly a claim which is nondisehargeable in bankruptcy. H. R. 8200, 95th Cong., 1st Sess., 309-310 (House Committee print 1977), as reported September 8, 1977. See S. 2266, 95th Cong., 1st Sess., 299 (1977), as introduced October 31, 1977. 124 Cong. Rec. 32393 (1978) (remarks of Rep. Edwards); see also id., at 33992 (remarks of Sen. DeConcini). More fully stated, the Bankruptcy Court’s observations were: “What is at stake in the present motion is whether defendant’s bankruptcy will discharge the affirmative obligation imposed upon him by the Judgment Entry, that he remove and dispose of all industrial and/or other wastes at the subject premises. If plaintiff is successful here, it would be able to levy on defendant’s wages, the action prevented by our Prior Decision, after defendant’s bankruptcy case is closed and/or the stay of 11 U. S. C. § 362 as interpreted by our Prior Decision is no longer in force. The parties have crystallized the issue here in simple fashion, plaintiff stoutly insisting that the just identified affirmative obligation is not a monetary obligation, while defendant says that it is. The problem arises, of course, because it is not stated as a monetary obligation. Essentially for this reason plaintiff argues that it is not a monetary obligation. Yet plaintiff in discussing the background for the Judgment Entry says that it expected that defendant would generate sufficient funds in his ongoing business to pay for the clean-up. Moreover, we take judicial notice that plaintiff sought discovery with respect to defendant’s earnings, the matter dealt with in our Prior Decision, for the purpose of levying upon his wages, a technique which has no application other than in the enforcement of a money judgment. There is no suggestion by plaintiff that defendant can render performance under the affirmative obligation other than by the payment of money. We therefore conclude that plaintiff has a claim against defendant within the meaning of 11 U. S. C. § 101(4), and that defendant owes plaintiff a debt within the meaning of 11 U. S. C. § 101(11). Furthermore, we have concluded that that debt is dischargeable.” 29 B. R., at 818. We were advised at oral argument that the receiver at that time was still in possession of the site, although he was contemplating terminating the receivership. Tr. of Oral Arg. 4, 56-57. We were also advised that it was difficult to tell exactly who owned the property at 500 Ford Boulevard and that although the trustee did not formally abandon the property, he did not seek to take possession of it. Id., at 55, 58. The State relies on Penn Terra, Ltd. v. Department of Environmental Resources, 733 F. 2d 267 (CA3 1984). There, the Court of Appeals for the Third Circuit held that the automatic stay provision of 11U. S. C. § 362 did not apply to the State’s seeking an injunction against a bankrupt to require compliance with the environmental laws. This was held to be an effort to enforce the police power statutes of the State, not a suit to enforce a money judgment. But in that case, there had been no appointment of a receiver who had the duty to comply with the state law and who was seeking money from the bankrupt. The automatic- stay provision does not apply to suits to enforce the regulatory statutes of the State, but the enforcement of such a judgment by seeking money from the bankrupt — what the Court of Appeals for the Sixth Circuit concluded was involved in this case — is another matter. The commencement of a case under the Bankruptcy Code creates an estate which, with limited exceptions, consists of all of the debtor’s property wherever located. 11U. S. C. § 541. The trustee, who is to be appointed promptly in Chapter 7 cases, is charged with the duty of collecting and reducing the property of the estate and is to be accountable for all of such property. 11 U. S. C. § 704. A custodian of the debtor’s property appointed before commencement of the case is required to deliver the debt- or’s property in his custody to the trustee, unless the bankruptcy court concludes that the interest of creditors would be better served by permitting the custodian to continue in possession and control of the property. 11 U. S. C. § 543. After notice and hearing, the trustee may abandon any property of the estate that is burdensome to the estate or that is of inconsequential value to the estate. 11 U. S. C. § 554. Such abandonment is to the person having the possessory interest in the property. S. Rep. No. 95-989, p. 92 (1978). Property that is scheduled but not administered is deemed abandoned. 11 U. S. C. § 554(e). Had no receiver been appointed prior to Kovacs’ bankruptcy, the trustee would have been charged with the duty of collecting Kovacs’ nonexempt property and administering it. If the site at issue were Kovacs’ property, the trustee would shortly determine whether it was of value to the estate. If the property was worth more than the costs of bringing it into compliance with state law, the trustee would undoubtedly sell it for its net value, and the buyer would clean up the property, in which event whatever obligation Kovacs might have had to clean up the property would have been satisfied. If the property were worth less than the cost of cleanup, the trustee would likely abandon it to its prior owner, who would have to comply with the state environmental law to the extent of his or its ability. Question: What reason, if any, does the court give for granting the petition for certiorari? A. case did not arise on cert or cert not granted B. federal court conflict C. federal court conflict and to resolve important or significant question D. putative conflict E. conflict between federal court and state court F. state court conflict G. federal court confusion or uncertainty H. state court confusion or uncertainty I. federal court and state court confusion or uncertainty J. to resolve important or significant question K. to resolve question presented L. no reason given M. other reason Answer:
songer_circuit
G
What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case. In re EBELING. EBELING v. BOBENG et al. (two cases). Nos. 7593, 7594. Circuit Court of Appeals, Seventh Circuit Nov. 6, 1941. Rehearing Denied Dec. 11, 1941. Harry Freeman and Freeman & Freeman, all of Chicago, 111. (Earl Freeman, of Chicago, 111., of counsel), for bankrupts-appellants. Henry L. Phoenix, Richard C. Murphy, and Phoenix & Murphy, all of Chicago, 111., for claimants-appellees. Before MAJOR, KERNER and MINT-ON, Circuit Judges. KERNER,.Circuit Judge. On July 28, 1938, after appellants had been adjudicated bankrupts, appellees filed their claims evidenced by bonds secured by a trust deed which had been foreclosed. On April 30, 1940, and May 3, 1940, after objections to the claims had been sustained, appellees filed amended claims, claiming, as owners of the bonds mentioned in the original claims, an equitable and beneficial interest in the deficiency decree entered in the foreclosure suit foreclosing said bonds. To the amended claims bankrupts filed objections, asserting that the amended claims were new and different claims, that they were filed subsequent to the expiration of the statutory period for filing claims, and that appellees were not the proper parties to file claims under the deficiency decree. The referee overruled the objections. On review the District Court sustained the orders of the referee. Appellants now seek a reversal of the orders. To be sure, the statute does provide that claims shall not be proved against a bankrupt estate subsequent to six months after the adjudication, (Bankruptcy Act, as amended § 57, sub. n, 11 U.S.C.A. § 93, sub. n, and gives the court no discretionary power to extend the time, Tarbell v. Crex Carpet Co., 8 Cir., 90 F.2d 683 and Bowman v. MacPherson, 10 Cir., 93 F.2d 318; but this section does not bar amendments filed after the expiration of the statutory period, In re Lipman, 2 Cir., 65 F.2d 366, and where a proof of claim has been filed within the time provided by the statute, it may be amended, In re Rothbell, D. C., 6 F.Supp. 244, the only limitation upon the rule being that the amendment does not introduce a distinctly new and different claim. In re Rothert, 7 Cir., 61 F.2d 1. In other words, there must be in the record the substance of that which is asked for. The right to amend can go no further than to bring forward and make effective that which in some shape was asserted in the original claim. In re G. L. Miller & Co., 2 Cir., 45 F.2d 115, 116. In the instant case appellants contend that the amended claims are based on an entirely new cause of action. They insist that the original claims are based on bonds, while the amended claims are predicated upon an equitable interest in a deficiency decree running in favor of a trustee. The record discloses that in the petitions for adjudication the petitioning creditors based their claims upon “Balance due on first mortgage bonds — as evidenced by deficiency decree entered in foreclosure proceedings filed in the Circuit Court of Cook County as suit No. 36C1968 and entitled Harold S. Fennema, successor trustee v. Richard R. Ebeling et al.” The original claims alleged that the bankrupts were indebted to the claimants upon bonds secured by a trust deed, which had been foreclosed. The amended claims allege that the bankrupts were indebted to the claimants and that the consideration of said debt was an equitable and beneficial interest as holders and owners of bonds in the deficiency decree entered in the Circuit Court of Cook County, suit No. 36C1968 entitled Harold S. Fennema, successor trustee, v. Richard R. Ebeling et al. In view of this record, we think that the amendments did not introduce new and different claims. See In re Rothert, supra. The amendments merely supplied with greater particularity allegations of fact upon which the claims were based. See In re G. L. Miller & Co., supra. Appellants raise the point that Fennema, successor trustee, was the only party entitled to prosecute a claim on the deficiency decree. They argue that since the decree in the foreclosure suit was in favor of Fennema, action on the decree must be brought in his name. Triplett v. Scott, 12 Ill. 137 and § 1084, Freeman on Judgments, 5th Ed., p. 2252. With this contention we cannot agree. The successor trustee was not the owner of the bonds. Appellees owned the bonds and as such owners they were creditors of the bankrupts. As such owners of the bonds they had an equitable or beneficial interest in the decree, the successor-trustee having only the legal title. That fact, however, did not make him in equity the- bankrupt’s creditor. United States Trust Co. v. Gordon, 6 Cir., 216 F. 929, 931. We are of the opinion that Mackay v. Randolph Macon Coal Co., 8 Cir., 178 F. 881 is in point on the question now being discussed. In that case, as here, the trustee recovered a deficiency decree in foreclosure proceedings instituted prior to bankruptcy. Thereafter the trustee presented the deficiency decree as a claim against the bankrupt’s estate and the claim was allowed. Subsequently, being apprehensive that the trustee might not be a creditor, the bondholders made proof and asked that they be allowed as claims against the estate. The District Court, being of the opinion that the bonds had been merged in the deficiency decree, disallowed the claims. The Circuit Court of Appeals reversed and allowed the bondholders to prove their claims. Since we have found no reason to reverse the orders of the District Court, they will be affirmed. 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_trialpro
A
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on procedure at trial favor the appellant?" This includes jury instructions and motions for directed verdicts made during trial. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". HEIM v. UNIVERSAL PICTURES CO., Inc., et al. No. 178. Circuit Court of Appeals, Second Circuit. Feb. 16, 1946. Plaintiff further testified as follows: In the writing of his song he did not base any part of it upon any prior musical work; he definitely was not influenced at all by any prior works; and that every part of his musical composition was original with him. In Berlin, in 1930, for the first time he met Joe Pasternak, the producer of the film “Nice Girl” for the Universal Pictures Co., Inc., in which the defendants’ song “Perhaps” was sung by the actress Deanna Durbin; from 1933 through 1937 he saw Joe Pasternak very often in Europe, but mostly in Budapest and in Vienna; Pasternak lived in a studio in Budapest, and the plaintiff also lived in the studio; that Pasternak, who represented the defendant Universal Pictures Co., Inc., in Europe at that time, had an office in the same studio where the Hungarian picture “Budai. Cukraszda” was produced. Plaintiff said that he came to the United States on March 8, 1939. By letter, he subsequently “contacted” Pasternak, who was then in California, through his agent, about his song “Ma Este Meg Boldog Vagyok,” because when Pasternak was in Hungary “he liked it very much.” Plaintiff said that he does not claim that the lyrics of the defendants’ song infringed upon his composition; but that only the verse of defendants’ composition infringed upon the chorus of his composition, as the verse of the defendants’ song is the same as the chorus of his song; and that “where little changes are made they are unmusical.” He said that no part of the chorus of his song was taken from Dvorak’s “Humoresque”; that no part of the chorus of his song was taken from any music in the public domain; and that his song is a wholly original composition; that the Hungarian picture “Budai Cukraszda” played in the State of California; but that he has never met Aldo Franchetti, the writer of defendants’ song, “Perhaps,” or Andres De Seguróla, the writer of the lyrics of defendants’ song. Without contradiction, the evidence shows the following: Plaintiff’s agent, Foreign & Domestic Music Corp., wrote to Pasternak, as follows: “November 4th, 1940 “Mr. J. Pasternak “Universal Pictures Company, Inc. “Universal City, California. “Dear Mr. Pasternak: “We are pleased to announce that (Emery H. Heim) Hadju Imbre of Budapest who you know very well is under contract with our company. We are sending 'you under separate cover some of his outstanding compositions published in Hungary and here. Included in this lot are: “Dumaparti Randevu “Budai Cukraszda “Red Bizom Afelesegem “Tokai Rapszodia If interested in using any of the songs please be good enough to communicate with this office. “Very truly yours, “Foreign & Domestic Music Corp. “Samuel Cummins” On November 19, 1940, Pasternak, on the stationery of the Universal Pictures Company, Inc., replied from California, as follows: “November 19, 1940 “Mr. Samuel Cummins, “Foreign & Domestic Music Corp. “230 E. 41st Street, “New York, N. Y. “Dear Mr. Cummins: “I have your letter of the 14th and the music which I have noted. “I am sorry to tell you that at the present time I would not be interested because I have most of the music set for my three forthcoming productions. Perhaps at some time in the future I can use some of your material. Many thanks for sending in your suggestions to me.” Celia B. Cohen, the secretary and treasurer of the Foreign & Domestic Music Corporation, testified that she mailed .to Joe Pasternak the letter of November 4, 1940, and also the musical compositions mentioned in said letter, one of which was Budai Cukraszda. She further testified that when the letter of Joe Pasternak dated November 19, 1940, was received by the Foreign & Domestic Music Corporation, the music was not enclosed and was never returned thereafter. She also testified on cross examination that the corporation was owned and controlled by plaintiff and two others, and that plaintiff was the “most active member of the corporation” but did not alone determine its policies. Plaintiff’s attorney served a notice upon the attorney for the defendants to produce upon the, trial of this action the contract between Pasternak and the Universal Pictures Co., Inc., but the same was not produced; but instead the attorney for defendant stipulated that Pasternak was the the producer of the film “Nice Girl,” in which the defendants’ song “Perhaps” was sung by the star Deanna Durbin, and that Pasternak had charge of the production of the film; that as such producer Pasternak had the power to determine the use or exclusion of the use of the song if he so desired; that all songs controlled by Universal Pictures Company and used in their pictures are published by Robbins Music Corp. and that the song “Perhaps” was such a song; and that the Universal Music Corporation is a subsidiary of Universal Pictures Co., Inc., and that the copyright to the song “Perhaps” was held in its name. Plaintiff called as a witness one Adler who, in open court at the trial, testified as an expert on music that there is a substantial similarity between the “verse” of the defendants’ song and the “chorus” of plaintiff’s song, and that in his opinion there was a substantial taking of that “chorus” in defendants’ “verse.” After cross examination, he testified on redirect that, as a musician, if he heard the chorus of the plaintiff’s song and the verse of the defendants’ song, he would not say that they would bring to his mind any similarity with “Humoresque.” Samuel Cummins, as witness for plaintiff, testified on examination before trial that plaintiff transferred the song to Foreign and Domestic Music Corporation, of which he, Cummins, was general manager, under a written agreement which had been destroyed in a fire; the corporation had never published the song or done anything with it; no musical arrangement had been made of the song for commercial performance, it had never been submitted to anyone for performance, and had never been submitted to any recording company. Franchetti did not appear at the trial. Defendants put in evidence his deposition taken in California on December 5, 1942, at the instance of defendants. It consisted of written, direct interrogatories and cross interrogatories. In that deposition he said that he is a prominent musical composer and conductor, having received a diploma of professor of music from the Royal Conservatory of Milan in 1907; for many years had played practically every musical instrument and had conducted orchestras all over the world; composed about two thousand songs and about one hundred and. fifty major works, such as symphonies, orchestra poems and operas, having received the David Bispham gold medal for his opera “Namiko-San” which was performed all over the United States; andi since 1937 had been in the regular employ of Warner Bros., motion picture studio in California. He further testified that he wrote his song for himself about December, 1939, with no intention to sell it; that the words were originally written by a Mrs. Cuttle who came to him with four or five lyrics to which she asked him to write music; that he selected one and composed his song “in front of Mrs. Cuttle” in “about fifteen or twenty minutes”; that he then played it for Mr. Seguróla; and that Seguróla liked the music, but not the words, and bought the music from him; that at the time he composed the music of the verse of “Perhaps,” he was thinking of the “Humoresque,” because it was to be a happy song in the “Humoresque’ style;” that “the first bar, about eight notes, was a sort of take-off of Dvorak’s ‘Humoresque,’ ” and was “just fashioned after that type of work”; that he never met the plaintiff; that prior to the commencement of this action he never heard the plaintiff’s song, and that he never had access thereto; that he did not take, copy or adopt said musical composition entitled “Perhaps” from plaintiff’s song; that he never saw, heard or had access to or had any knowledge of any motion picture entitled “Budai Cukraszda.” On cross, Franchetti stated in his deposition that he composed the music of the song “Perhaps,” which was used in the Universal Picture “Nice Girl,” about December, 1939; that he was not instructed by Pasternak to compose the song; that Pasternak did not have any conference with him as to the type of song desired ¡prior to the composition of “Perhaps”; that Pasternak never told him that he was familiar with plaintiff’s song; that Pasternak never showed him the music of that song; that he dealt with Seguróla only; that he never had anything to do with Universal, and was never employed by them; that he was not employed to write music for the picture “Nice Girl,” produced by Joe Pasternak for Universal Pictures Co., Inc., before he composed the song “Perhaps.” Franchetti was asked on cross-interrogation the following question; “Please state your position with the defendant Universal Pictures Co., Inc., and the Universal Music Corporation at the time you composed the song 'Perhaps.’ ” To this cross-interrogatory he gave no answer. The defendants offered in evidence the agreements under which they acquired the right and title, to their song, as follows: (a) An agreement between Franchetti, as composer, and Andres de Seguróla, as purchaser, made on April 29, 1940, at Los Angeles, California, whereby the composer sold his rights to the song “Dancing Doll” (the name originally given to “Perhaps”). In paragraph “6” of this agreement the “Composer further warrants that such work is original with the Composer in all respects and that no part thereof was taken from, or based upon any other musical work * * * that such work is not in the public domain”; and that the consideration for the song is $100. (b) An assignment of the rights to the song “Dancing Doll,” also known as “Perhaps,” from Seguróla to Universal Pictures Company, dated November 28, 1940; it warrants “that said music is not, nor is any part thereof, in the public domain but is validly copyrightable throughout the world as original work.” (c) An assignment from Seguróla to Universal Pictures Co., Inc., of the rights to the lyrics written by Seguróla for the defendants’ song “Perhaps,” dated November 28, 1940. (d) A letter from Universal Pictures'Co., Inc., upon the stationery of the Universal Pictures Company, dated and addressed as follows: “Universal City, California. “November 28, 1940 “Mr. Andres de Seguróla, “% Universal Pictures Company, Inc, “Universal City, California. "Dear Mr. de Seguróla:” In this letter, Universal Pictures Co., Inc., stated that, “As consideration in full for your execution and delivery of said assignments to us and for all of your agreements, representations, warranties and assignments made therein, we have paid you the sum of Seven Hundred and Fifty Dollars ($750.00), receipt of which you hereby acknowledge”; and in addition thereto the letter provides that 66%% of all royalties from the publication of the song and 33%% of all royalties from the mechanical rights of said music shall be paid to Seguróla, (e) An assignment from Franchetti to Universal Pictures Company, for the consideration of $.1.00, of the song “Perhaps,” also known as “Dancing Doll,” dated November 28, 1940, and written upon the stationery of the Universal Pictures, and contains the warranty “that said work is not, nor is any part thereof, in the public domain,” and “represents and warrants that said work is original with the undersigned in all respects; that the same is not, nor is any part threof, taken from or based upon any other musical, dramatic or other work.” Kenneth S. Clark, defendants’ expert on music, on direct examination in open court, testified that the chorus of the plaintiff’s song and the verse of defendants’ song are identical with the prominent strain in the “Humoresque”. The defendants then offered in evidence nine popular songs, which were copyrighted prior to 'plaintiff’s song; Clark testified that all of these nine songs are patterned after “Humoresque.” Clark further testified that a verse is added to a popular song to make it longer “so when the public buys a copy they think they get their money’s worth”; the theme is always in the chorus and never in the verse; the title, one of the most material parts, is always in the chorus, and never in the verse; a singer or an orchestra almost never renders the verse; the orchestra usually plays the chorus, the singer sings it, and then the orchestra repeats the chorus in another key for variety; the public only hums, whistles and sings the chorus and never the verse; and many of the popular songs do not even have a verse. On cross-examination, Clark testified that to the average ear there is a similarity between the chorus of plaintiff’s song and the verse of defendants’ song and that both are from “Humoresque”; that the chorus of plaintiff’s song and the verse of defendants’ song are very familiar because they are exactly the same as the phrase from “Humoresque,” which is a very common theme to everybody; and that the nine popular songs offered in evidence by defendants are all substantially similar to the song of plaintiff and the song of defendants to a greater or less degree, some more and some less; that some listeners hearing these nine popular songs would immediately detect a substantial similarity between any one of those songs and the plaintiff’s chorus and the defendants’ verse; and that some listeners might be subaverage and would not detect, and that in his opinion, if a person could not detect, such similarity, he would be below the average listener. Adler, plaintiff’s expert, in rebuttal, testified that in his opinion, after examining all of the nine songs offered by defendants, he could see no substantial similarity between any of these nine songs and the plaintiff’s song or defendants’ song; that there is a similarity between the popular songs themselves, but that there is no similarity between these popular songs and the plaintiff’s. The trial judge held that plaintiff’s copyright was invalid, that plaintiff was not the real party in interest, and that none of the defendants had infringed. He entered judgment dismissing the complaint on the merits. In his opinion he said: “The court finds there is substantial identity of the indicated phrases of the musical compositions of plaintiff and that produced by Universal Pictures. This is not seriously controverted. In answer to this proof, defendants showed by the depositions of Aldo Franchetti that he was the writer of the music of ‘Perhaps’, and that he had taken the suggestion of the accused bars from a certain phrase in’ the ‘Humoreske’ of Dvorak, a work long within the public domain. It is true that when played, even in the same key, the phrases of ‘Humoreske’ appear but slightly reminiscent of either of the two songs in dispute. But this constitutes no refutation of the testimony when it is considered that the sixteen-note phrase of the ‘Humoreske’ is identical in progression with defendants’, except that the latter omits the 14th and 15th notes. The bars in each are identical, but as noted above, the harmonies are different, as is the accent. Franchetti is a composer of some two thousand songs and over one hundred major compositions, including the opera ‘Namiko-San’, for the production of which he was awarded the David Bispham Medal. “There is no lack of ingenuity here, apparently, and this adds credence to be given to his testimony. Reinforcement is obtained from the fact that the note and bar sequence of plaintiff’s own phrases are identical with ‘Humoreske’, although the harmony and melody are divergent. The casual occurrence of this phrase in either plaintiff’s or defendants’ composition is indicated by the fact that it occurs in modified forms in other popular music. But although this reasoning is convincing, the plaintiff ip any event must fail, owing to the entire absence of proof of access. Plaintiff’s case upon this point is almost negligible. It is contradictory and untrustworthy. On the other hand, it is positively shown that plaintiff has never met nor had any contact with Franchetti, that plaintiff had never been in California, and it was further shown that he had no proof that the piece had ever been performed in California. The work of plaintiff had a very narrow field in the United States. Upon the point of access, plaintiff did not sustain the burden of proof.” „ Among the judge’s findings of fact are the following: 8. That no printed copies of plaintiff’s said musical composition were ever distributed, offered for sale, sold or disposed of in the United States and no phonograph recordings of plaintiff’s said musical composition were ever made, distributed, offered for sale, sold or disposed of in the United States. 9. That said musical composition was never performed in the United States outside of New York City and such performances of said musical composition, if any, were negligible and of no moment. 11. That defendant Aldo Franchetti, received a diploma as a Professor of Music from the Royal Conservatory of Milano, Italy in 1907, plays practically every musical instrument, has conducted orchestras all over the world, has composed about two thousand songs, and about one hundred fifty major works such as symphonies, operas and orchestra poems, having received the David Bispham gold medal for his opera “Namiko-San” which was performed all over the United States and has been regularly employed at the motion picture studio of Warner Bros, in California since 1937. 14. That defendants’ said musical composition was copyrighted by publication in the United States in 1941. 15. That the alleged similarity in the two compositions is that of a fourteen note phrase in the verse of defendants’ said musical composition to a sixteen note phrase in the chorus of plaintiff’s said musical composition. 16. That in the writing of the said phrase of the verse of defendants’ said musical composition, defendant Aldo Franchetti was influenced by and took the suggestion of the music thereof from the music of the well known musical composition entitled “Humoreske” by Anton Dvorak, which he had frequently played on the violin. 17. That the note and bar sequence of said phrase in the verse of defendants’ said musical composition is identical with phrases in said musical composition entitled “Humoreske,” except that two notes in said phrase of the latter composition do not appear in said phrases of the former composition. 18. That the note and bar sequence of said sixteen note phrase in the chorus of plaintiff’s said musical composition is identical with phrases of said musical composition entitled “Humoreske.” 19.. That the said phrase in the chorus of plaintiff’s said musical composition was not original with plaintiff. 22. That prior to defendant Aldo Franchetti writing the music of defendants’ said musical composition, he never heard, had knowledge of, or access to plaintiff’s said musical composition, or any copy, notation or form thereof. 23. That no part of the music of defendants’ said musical composition was based upon, or taken, copied or adapted from, the music of plaintiff's said musical composition or any part thereof. 24. That prior to the institution of this action plaintiff disposed of his rights in plaintiff’s said musical composition to Foreign and Domestic Music Corp. and notice of the alleged infringement was served at plaintiff’s insistence on defendants Universal Pictures Company, Inc., and Robbins Music Corporation, by said Foreign and Domestic Music Corp. as exclusive owner of said musical composition. Henry Pearlman, of New York City, for appellant. Julian T. Abeles, of New York City, for appellees. Before L. HAND, CLARK, and FRANK, Circuit Judges. His testimony on that point is as follows: “Q. Will you compare and analyze tile songs, showing us what similarity, if any, you found, and the significance of the similarities? A. On the introduction of the defendants’ song, it is based or built on the first measures of the plaintiff’s song. The first two measures of the plaintiff’s chorus are similar or identical in melody, harmony and rhythm to the defendants’ chorus. I have made a few notes wliich I will refer to now. The first five notes in the third measure aro the same, that is, the same in tho defendants’ verso as tho plaintiff’s chorus. The fourth measure is alike except for a slight change in harmonic progression. In the third part of the measure you have 5, 6, 7 and 8, which have the same harmonic frame, rhythm and melody, and the 9th and 10th exactly alike in bar; the RSth measure, the first two notes are alike, and the musical result is the same in the entire measure. Then, in my opinion, the 14th and 15th are not alike.” FRANK, Circuit Judge. 1. The Hungarian publisher, the proprietor at the time of the copyright registration on September 14, 1936, was a citizen of a foreign country with which the United States has a treaty extending copyright protection to Hungarian citizens in accord with § 8(b). As publication in Hungary occurred on November 11, 1935, the registration followed publication, and therefore § 9, not § 11, applied. As on the date of publication the author was a citizen of Hungary, and the song had then been published solely in a foreign state, there was compliance with § 12, as amended in 1914, by the deposit of one complete copy. The trial judge correctly found that “no printed copies * * * were ever distributed, offered for sale, sold or disposed of in the United States.” The letter of November 4, 1940, from Cummins to Pasternak, enclosing a copy of the song, was not a publication or offering for sale in the United States. Nor were the playings of the song here, nor was the filing of the copy in the copyright office. The sales of imported copies in this country were not shown to have been authorized by the then proprietor. It follows that the mistake of date in the notice of copyright was not, on any theory, a violation of §§ 9 and 18; for § 9 merely requires that the notice be affixed to each copy “published or offered for sale in the United States by authority of the copyright proprietor.” We construe the statute, as to a publication in a foreign country by a foreign author (i.e., as to a publication described in the 1914 amendment), not to require, as a condition of obtaining or maintaining a valid American copyright, that any notice be affixed to any copies whatever published in such foreign country, regardless of whether publication first occurred in that country or here, or whether it occurred before or after registration here. It seems to be suggested by some text-writers that, under the 1914 amendment, where publication abroad precedes publication here, the first copy published abroad must have affixed to it the notice described in § 18. Such a requirement would achieve no practical purpose, for a notice given by a single copy would obviously give notice to virtually no one. There is no doubt textual difficulty in reconciling all the sections, as has been often observed; the most practicable and, as we think, the correct interpretation, is that publication abroad will be in all cases enough, provided that, under the laws of the country where it takes place, it does not result in putting the work into the public domain. Assuming, arguendo, that plaintiffs publication in Hungary did not do so, it could not affect the American copyright that copies of his song were at any time sold there without any notice of the kind required by our statute, and it would therefore be of no significance, in its effect on the American copyright, if copies sold in Hungary bore a notice containing the wrong publication date. On that assumption, there would be no need to consider whether, had the notice with the mistaken date been affixed to copies published or offered for sate in the United States by authority of the proprietor, that mistake would have invalidated the copyright, especially in the light of § 20. We do not know whether the publication in Hungary was such as to amount to dedication in that country, but, as we are affirming the dismissal of the complaint for other reasons, it is not necessary to decide that question. 2. In a suit like this, plaintiff, to make out his case, must establish two separate facts: (a) that the alleged infringer copied from plaintiff’s work, and (b) that, if copying is proved, it was so “material” or “substantial” as to constitute unlawful appropriation. Plaintiff here must lose for failure to establish the first of these facts. The evidence by no means compels the conclusion that there was access; on the other hand, it does not compel the conclusion that there was not. Consequently, copying might still be proved by showing striking similarity. Here similarity exists; indeed, a passage in Franchelti’s “verse” is identical with one in plaintiff’s “chorus.” Mere similarity is not enough; but here one finds more; both to the eye and ear, the identity is unmistakable, as defendants virtually concede. But defendants explain this fact by saying that, quite independently, both composers utilized a common source — either Dvorak’s composition or the older commonplace theme which Dvorak had adopted and adapted. As, however, both optically and aurally, plaintiff’s treatment is distinguishable from Dvorak’s and also from the older commonplace theme, that explanation would not wash, were plaintiff’s -contribution highly original. In an appropriate case, copying might be demonstrated, with no proof or weak proof of access, by showing that a single brief phrase, contained in both pieces, was so idiosyncratic- in its treatment as to preclude coincidence. In such circumstances, stimulation by the same stimulus would not serve as a defense: Buchanan tells us that Kekulé’s “idea of the carbon-ring came out of the lurid imagery of a morning after a party”; many a chemist had had a like experience without such a fruitful result. Hamilton reported of his great mathematical discovery that “the Quaternions started into life, or. light, full grown, on the 16th day of October, as I was walking with Lady Hamilton to Dublin, and came up to Brougham Bridge”; no other mathematician who had observed a bridge when strolling with his wife in mid-October had made the same discovery. Nor would it be alone enough that the passage in question is brief or that the identical matter in plaintiff’s song is found in the “chorus,” and, in Franchetti’s, in the “verse.” Nor would Franchetti’s musical reputation and achievements answer, for Handel ruthlessly plagiarized; we do not accept the aphorism, “When a great composer steals, he is ‘influenced’; when an unknown steals, he is ‘infringing.’ ” On the issue of copying, it was proper for the trial judge to avail himself of (although not to be bound by) expert testimony. He heard the experts of both sides. In effect, he found that plaintiff’s method of dealing with the common trite note sequence did not possess enough originality, raising it above the level of the banal, to preclude coincidence as an adequate explanation of the identity. We cannot say that the judge erred. Whether, had he reached a contrary conclusion, we would have affirmed, we do not consider. Affirmed. See 17 U.S.C.A. § 8(b) and note, 37 Stat., pt. 2,1631. Tbe 1914 amendment inserted the ■words “or if the work is by an author who is a citizen or subject of a foreign State or nation and has been published in a foreign country, one complete copy of the best edition then published in such foreign country.” Allen v. Walt Disney Productions, Ltd., D.C., 41 F.Supp. 134, 136; cf. Gerlach-Barklow Co. v. Morris & Bendien, 2 Cir., 23 F.2d 159, 162, 163; Falk v. Gast Lithograph & Engraving Co., 2 Cir., 54 F. 890; cf. Patterson v. Century-Productions, 2 Cir., 93 F.2d 489, 492. See McCarthy & Fischer, Inc. v. White, D.C., 259 F. 364; Shafter, Musical Copyright (2d ed. 1939), 130-431. Cf. Osgood v. A. S. Aloe Co., C.C., 69 F. 291, 294; Patterson v. Century Productions, supra, 93 F.2d at page 493. In United Dictionary Co. v. G. & C. Merriam Co., 1908, 208 U.S. 260, 28 S.Ct. 290, 52 L.Ed. 478, it was held that if a work were copyrighted here, the omission of notice of the American copyright from an edition subsequently published in England did not invalidate the copyright. We do not read the 1914 Amendment as a mere codification of the ruling in that case, i. o., as limited t.o eases where the foreign publication occurs after an American copyright has been obtained or after publication in this country. Universal Film Mfg. Co. v. Copperman, D.C., 212 F. 301, 303, 304, related to a copyright which ante-dated the 1914 amendment to § 12. Basevi v. Edward O’Toole Co., D.C., 26 F.Supp. 41, 46, wo think was wrongly decided on this pojnt . Ladas, The International Protection of Literary and Artistic Property (1938) 688, says, in speaking of the 1914 amendment to § 12: “It would seem difficult to give a safe interpretation of the Act in this respect. However-, if tho role established in the first part of § 9 is to be given effect to, i. e., the rule that a person ‘may secure copyright for his work by publication thereof with the notice of copyright required by the Act;’ it would seem that no person is entitled to claim statutory copyright under the Act, unless, when first publishing tho work abroad or in the United States, he has affixed tho statutory notice. Thereafter, the notice need not appear on each copy of the work published outside the United States, since tho second part of § 9 requires this only of ‘each copy thereof published or offered for sale in the United States.’ ” See also 13 C.J. 1063, note 33. Were that question here, we should have to consider whether the statement in Baker v. Taylor, Fed.Cas.No.782, and subsequent cases which cite it apply under the present liberalized Copyright Act; see Washingtonian Publishing Co. v. Pearson, 306 U.S. 30, 59 S.Ct. 397, 83 L.Ed. 470; United States v. Backer, 2 Cir., 131 F.2d 533; Shafter, loc. cit., 98. See Arnstein v. Porter, 2 Cir., 1940, 154 F.2d 464. Thus, e. g., the alleged plagiarist might openly admit that he copied, but lie could defend by showing that his copying was too insubstantial to be wrongful. There may be wrongful copying, though small quantitatively; so if someone were to copy tho words, “Euclid alone has looked on Beauty bare,” or “Twas brillig and the slithy toves.” On the issue of copying — as distinguished from the issue of illicit copying —“dissection” and optical analysis are proper aids to the trier of the facts. See Arnstein v. Porter, supra. “Beethoven’s Fifth Symphony is a marvellous structure on a commonplace theme;” Shafter, loe. cit., 197. As to the way in which Coleridge creatively employed phrases he found in tales of sea voyages, see Lowes, The Road to Xanadu, 2d Ed., 1930, 59, 434, quoted in Picard v. United Aircraft Corp., 2 Cir., 128 F.2d 632, 638 note 1. Buchanan, Possibility (1927) 189. Graves, Life of Sir William Rowan Hamilton (1882) H, 434-436, quoted in Porterfield, Creative Factors in Scientific Research (1941) 97. Helmholz said that “his most important thoughts” came to him “during the slow ascent of hills on a sunny day” ; see Graham Wallas, The Art of Thought (1926) 80; no other hill-climbing physicist anticipated Helmholz’s works. See Boosey v. Empire Music Co., D. C., 224 F. 646; Farmer v. Elstner, C.C., 33 F. 494, 496. Quantity, in some cases, where copying and misappropriation have been proved, may affect the measure of damages. Witmark & Sons v. Pastime Amusement Co., D.C., 298 F. 470, 477, affirmed 2 Cir., 2 F.2d 1020. Of. Macaulay’s Essay on Robert Montgomery. For a defense of Handel, by way of confession and avoidance, see Tovey’s article on Handel in 12 Encyc. Britannica, 910, 914, 915. Handel's ruthlessness in general is illustrated in the story of “his holding the great prima donna Cuzzoni at arms-length out of a window and threatening to drop her unless she consented to sing a song which she had declared unsuitable to her style”; see Tovey, loe. cit., 911. -I Shafter, loe. cit., 189. We do not mean that such originality is essential to the validity of a copyright. See Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 249, 250, 23 S.Ct. 298, 47 L.Ed. 460; Sheldon v. Metro-Goldwyn Pictures Corp., 2 Cir., 81 F.2d 49, 53, 54; Fred Fisher, Inc. v. Dillingham, D. C., 298 F. 145, 149; cf. Hein v. Harris, C.C., 175 F. 875. As to the needed quantum of originality, see Chamberlin v. Uris Sales Corp., 2 Cir., 150 F.2d 512, 513; Shafter, loc. cit., 223, 224. Accordingly, we never reach the question whether, assuming that Francnetti copied, his copying went beyond permissible bounds. Question: Did the court's ruling on procedure at trial favor the appellant? This includes jury instructions and motions for directed verdicts made during trial. A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_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. James M. SHEA, Appellant, v. UNITED STATES of America, Appellee. No. 74-2115. United States Court of Appeals, Fourth Circuit. Argued Nov. 6, 1974. Decided Nov. 26, 1974. Richard E. Crouch (Philip J. Hirschkop, Alexandria, Va., on brief), for appellant. Mark S. Geraghty, Arlington, Va., Sp. Asst. U. S. Atty. (David H. Hopkins, U. S. Atty., on brief), for appellee. Before HAYNSWORTH, Chief Judge, and WINTER and BUTZNER, Circuit Judges. PER CURIAM: James Shea was convicted of willfully supplying his employer with false or fraudulent information about his income tax withholding, in violation of 26 U.S.C. § 7205 (1970). This court affirmed his conviction. Shea v. United States, No. 15,313 (4th Cir. April 6, 1971). Shea’s conviction arose from his attempt to protest the Government’s policies in Viet Nam. On February 20, 1970 Shea filed a W-4 Form with his employer showing that he had 20 dependents, a substantial increase from his previous claim of six dependents. In response to his employer’s query about the change, Shea wrote: “I changed my number of dependents as indicated on the enclosed W-4 Form after considering carefully the Internal Revenue’s regulations, statutes covering income tax, and the advice of my lawyer. My explanation of the change is that the number of my dependents has increased.” Earlier, on January 23, 1970, when filing an income tax return, Shea had enclosed a letter protesting government policies. In that letter he proclaimed a general intent to seek ways to resist the payment of taxes. He did not, however, repeat his protest in a letter attached to the W-4 Form or refer to it in any way when asked for an explanation of the increase in the number of his dependents. After the decision in United States v. Snider, 502 F.2d 645 (4th Cir. 1974), Shea filed a motion for relief under 28 U.S.C. § 2255, which the district court denied. Like Shea, Snider was convicted of violating § 7205 for making an inaccurate statement on his withholding form. Snider had filed a W-4 Form, claiming three billion dependents, which represented all the human beings in the world, as he explained in a cover letter. Reversing the conviction, this court held that the information was not “(1) supplied with an intent to deceive, or (2) false in the sense of deceptive — of such a nature that it would reasonably affect withholding to the detriment of the government.” 502 F.2d at 655. Since the claim of three billion dependents could deceive no one, this court found that dismissal of the indictment was appropriate. Shea’s case is distinguishable from Snider’s. On its face, the claim of 20 dependents is not completely implausible. Unlike Snider, Shea enclosed no letter with his W-4 to explain his actions. The letter of January 23 does not bring this case within Snider’s holding since Shea did not sufficiently alert the Government that he planned to claim enough dependents to wipe out his tax liability. Accordingly, we do not find that dismissal of the indictment would be appropriate. Shea siso claims that the district court applied an incorrect legal standard in his trial without a jury. The record on appeal, however, does not disclose an error warranting post-conviction relief. Accordingly, we affirm the district court’s denial of the motion to vacate the sentence. Affirmed. 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_state
53
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". Philip Roberts CHATMAN, Jr., Plaintiff, Appellant, v. Commodore D.E. HERNANDEZ, U.S.N., et al., Defendants, Appellees. No. 86-1205. United States Court of Appeals, First Circuit. Submitted Sept. 12, 1986. Decided Nov. 21, 1986. Philip Roberts Chatman, Jr., on brief pro se. Enrique S. Lamoutte, Asst. U.S. Atty., and Daniel F. Lopez Romo, U.S. Atty., Hato Rey, P.R., on brief, for defendants, appellees. Before CAMPBELL, Chief Judge, BREYER and TORRUELLA, Circuit Judges. PER CURIAM. Appellant Philip Roberts Chatman, Jr. challenges a district court order dismissing his pro se complaint on the grounds that the court lacked subject matter jurisdiction under 42 U.S.C. § 1983, 28 U.S.C. §§ 2241, 2255 or 28 U.S.C. §§ 1346(b), 2671-80. For the reasons stated below, we affirm. We adopt the district court’s statement of the facts as follows: Phillip R. Chatman, Jr., Aviation Boatswain’s Mate Handler Third Class (E-4), U.S. Navy, was accused of murdering his twenty one month old daughter, assault on a Naval Investigative Service agent, and fraudulent enlistment. On March 22, 1982, he appeared before a military judge and entered a guilty plea. After a hearing, a General Court Martial, properly convened, sentenced Mr. Chatman to a Dishonorable Discharge, confinement at hard labor for twenty years, forfeiture of all pay and allowances, and reduction in rank to E-l. On June 18, 1982, the convening authority reviewed and approved the sentence as imposed, but suspended the execution of the last three years of confinement. During both of the aforementioned proceedings Mr. Chatman was assisted by appointed military counsel. On September 17, 1982, the United States Court of Military Review affirmed the findings and sentence of the trial court. Thereafter, on January 18, 1988, plaintiffs petition for remand to the U.S. Navy-Marine Corps Court of Military Review was denied. On October 27, 1983, plaintiffs petition for review by the U.S. Court of Military Appeals was also denied. At present, plaintiff is incarcerated in the Indiana Federal Penitentiary at Terre Haute. There is pending a petition for a writ of habeas corpus before the United States District Court for the Southern District of Indiana filed by plaintiff against the Warden of the aforementioned institution challenging the lawfulness of his conviction, sentence and confinement. On August 25, 1985, the present action was filed seeking damages for the alleged medical malpractice concerning the death of his daughter, for permanent injuries sustained as a result of brutality of Naval Investigative Service agents and for his family’s embarrassment as a result of his conviction and incarceration. Damages are also sought for loss of his military pay and loss of promotion opportunity as a result of his conviction. Finally, plaintiff requests release from incarceration, a formal letter of apology and expungement of his conviction from all records. 42 U.S.C. § 1983 Appellant’s primary claim for relief is under 42 U.S.C. § 1983. However, Section 1983 applies to persons acting “under color of state law” and not to persons acting pursuant to federal law. Cervoni v. Secretary of H.E.W., 581 F.2d 1010, 1019 (1st Cir.1978). Here, appellant alleges that his constitutional rights were violated by the actions of federal officials acting under federal law. Such a claim is beyond the scope of Section 1983. Thus, under this provision, appellant has failed to state a claim upon which reliéf can be granted. The Habeas Corpus Statutes Section 2255 of Title 28, United States Code, provides relief to judgments and sentences imposed by federal courts. Davis v. United States, 417 U.S. 333, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974). However, Article 76 of the Uniform Code of Military Justice, 10 U.S.C. § 876, states that military review of court martial convictions shall be “final and conclusive” and “binding upon all ... courts ... of the United States.” Therefore, this court lacks jurisdiction to entertain an action under Section 2255 which challenges a military conviction. A habeas corpus claim under 28 U.S.C. § 2241 is also unavailable. Such relief lies only in the district wherein petitioner is confined. White v. State of Tennessee, 447 F.2d 1354 (6th Cir.), cert. denied, 406 U.S. 921, 92 S.Ct. 1782, 32 L.Ed.2d 121 (1971). The appellant is being held in custody at Terre Haute, Indiana, which is where the habeas corpus proceeding should properly be brought and, in fact, was brought. Constitutional Violations In Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), the Supreme Court authorized a suit for damages against federal officials whose actions violated an individual’s constitutional rights, even though Congress had not expressly authorized such suits. However, the Court added, this remedy is not available when “special factors counselling hesitation” are present. Id. at 396, 91 S.Ct. at 2005. Appellant Chatman’s alleged constitutional violations could have been brought under the Biven’s rationale, but for those “special factors.” Recently, the Supreme Court specifically determined that enlisted military personnel may not maintain a suit to recover damages from a superior officer for alleged constitutional violations. Chap-pell v. Wallace, 462 U.S. 296, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983). Part of the rationale for this holding was the accepted existence of two systems of justice: The special status of the military has required, the Constitution has contemplated, Congress has created, and this Court has long recognized two systems of justice, to some extent parallel: one for civilians and one for military personnel. Id. at 303-304, 103 S.Ct. at 2367. In the present ease, all of the individuals mentioned in appellant’s complaint, with the exception of the Naval Investigative Service agents, were commissioned officers, and therefore, superior to the appellant. The appellant then, under Chappell, is precluded from basing his claim on Bivens. Mandamus Appellant could conceivably have brought an action for mandamus and in-junctive relief pursuant to 28 U.S.C. §§ 1361, 1331 to compel the upgrading of his military discharge and the voiding of his court-martial conviction. See, e.g., Kaiser v. Secretary of the Navy, 542 F.Supp. 1263 (D.Col.1982); Lima v. Secretary of the U.S. Army, 314 F.Supp. 337 (D.Pa. 1970). But appellant’s action under 28 U.S.C. § 1361 is barred for failure to exhaust administrative remedies. “It is well settled that a party seeking corrective or habeas relief from allegedly improper courts-martial and military discharges, must exhaust all adequate and available military remedies before seeking relief in federal court.” Kaiser, supra, 542 F.Supp. at 1265. Appellant in the instant case failed to petition the Board for Correction of Naval Records for review of his case. 10 U.S.C. § 1552(a). The failure to exhaust administrative remedies does not necessitate a dismissal; this court could follow the example of the Kaiser court and order a stay pending exhaustion. Kaiser, supra, 542 F.Supp. 1263. However, in regards to an action pursuant to 28 U.S.C. § 1361, case law is clear that the remedy of mandamus is a drastic one, to be invoked only in extraordinary situations. Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 101 S.Ct. 188, 66 L.Ed.2d 193 (1980); U.S. v. Sam Goody, Inc., 675 F.2d 17 (C.A.N.Y.1982). Three elements must exist before mandamus is properly exercised: 1) plaintiff must have a clear right to the relief, 2) defendant must have a clear duty to act, and 3) no other adequate remedy must be available. Sheehan v. Army & Air Force Exchange Service, 619 F.2d 1132, rev’d on other grounds 456 U.S. 728, 102 S.Ct. 2118, 72 L.Ed.2d 520, on remand 686 F.2d 262 (5th Cir.1980). Appellant does have an “other adequate remedy,” e.g., the administrative remedy provided by the Board for Correction of Naval Records. Furthermore, appellant’s situation is not “extraordinary.” On the basis of the record, appellant does not present a clear right to have his court-martial conviction voided nor his dishonorable discharge upgraded. He is claiming a violation of his constitutional right of due process based on his allegations of ineffective assistance of counsel and of an unfair trial due to the bias of the presiding officer. But these allegations are not clearly supported by the trial record nor by appellant’s brief. His claims are, at best, dubious, and thus, mandamus is not an appropriate remedy here. Federal Tort Claims Act The Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671-80 is a limited waiver of sovereign immunity for certain tort claims brought against the United States. To the extent that the FTCA is applicable to appellant’s claims for money damages for wrongful death due to the negligence of federal government employees, it is barred due to appellant’s failure to exhaust administrative remedies and pursuant to Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950) (the United States is not liable under the FTCA for injuries to servicemen while on active duty). Section 2675 of the FTCA establishes as a prerequisite to bringing suit therein, that a plaintiff present notice of his or her claim to the appropriate federal agency. Adams v. United States, 615 F.2d 284 (5th Cir.1980). Appellant failed to file any administrative claim, which failure precludes an action under the FTCA. Santiago Rivera v. U.S., 405 F.Supp. 330, 331 (D.P.R.1975). The Feres doctrine is a judicially created exception to the FTCA’s waiver of immunity. 340 U.S. 135, 71 S.Ct. 153. The Court held that “the Government is not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service.” 340 U.S. at 146, 71 S.Ct. at 159. At the time of the alleged wrongs in this case, appellant was in fact a serviceman on active duty. The investigation for the crimes for which he was convicted, as well as the trial itself, were “in the course of activity incident to (his) service.” The appellant must resort to the administrative remedy provided by the Board for Correction of Naval Records. We are aware that 10 U.S.C. § 1552(b) provides a three year statute of limitation in which to file with the Board, unless it is in the “interest of justice” to excuse the failure to file. Appellant was convicted on March 22, 1982, but his petition for review by the U.S. Court of Military Appeals was not denied until October 27, 1983. Appellant’s action accrued from the date of the last administrative decision, not from the date of discharge. Mulvaney v. Stetson, 470 F.Supp. 725, 730 (N.D.I11.1979). Even if the statute of limitation had run, this court believes it to be in the interest of justice to excuse the failure to file, due to appellant’s pro se position. It is hereby ordered that the district court’s opinion is affirmed. Question: In what state or territory was the case first heard? 01. not 02. Alabama 03. Alaska 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. Florida 11. Georgia 12. Hawaii 13. Idaho 14. Illinois 15. Indiana 16. Iowa 17. Kansas 18. Kentucky 19. Louisiana 20. Maine 21. Maryland 22. Massachussets 23. Michigan 24. Minnesota 25. Mississippi 26. Missouri 27. Montana 28. Nebraska 29. Nevada 30. New 31. New 32. New 33. New 34. North 35. North 36. Ohio 37. Oklahoma 38. Oregon 39. Pennsylvania 40. Rhode 41. South 42. South 43. Tennessee 44. Texas 45. Utah 46. Vermont 47. Virginia 48. Washington 49. West 50. Wisconsin 51. Wyoming 52. Virgin 53. Puerto 54. District 55. Guam 56. not 57. Panama Answer:
songer_procedur
C
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. Richard J. MAYBERRY, Appellant, v. James F. MARONEY, Superintendent, State Correctional Institution, Pittsburgh, Pennsylvania. No. 76-2296. United States Court of Appeals, Third Circuit. Argued May 2, 1977. Decided July 7, 1977. John M. Duff, Deputy Atty. Gen., Dept, of Justice, Commonwealth of Pennsylvania, Pittsburgh, Pa., Frederick R. Nene, Asst. Atty. Gen., Pittsburgh, Pa., Robert P. Kane, Atty. Gen., Harrisburg Pa., for appellee. Michael L. Rosenfield, Berlin, Boas, Issac-son, Logan, Rosenfield & Sharon, Pittsburgh, Pa., for appellant. Before GIBBONS and HUNTER, Circuit Judges, and LAYTON, Senior District Judge. Honorable Caleb R. Layton, III, Senior United States District Judge for the District of Delaware, sitting by designation. LAYTON, Senior District Judge: Once again we are asked to review the district court’s grant of relief, pursuant to Rule 60(b)(5) and (6), F.R.C.P. from a consent judgment entered in favor of the plaintiff class on January 18, 1973. Additionally, the plaintiff class has appealed from the refusal of the district judge to disqualify himself. The facts surrounding this rather lengthy litigation are familiar to all concerned, and will be summarized only to the extent necessary in order to dispose of the issues presently before this Court. On July 29, 1966, plaintiff Mayberry brought this action pursuant to 42 U.S.C. § 1983, complaining of physical abuse by prison officials and confinement in facilities creating hazards to his health. Suffice it to say that after much litigation, the plaintiff sought to have the action certified on behalf of the class of “all those who have been at any time subsequent to June 25, 1965, or who are at present, or who will hereafter be confined at the State Correction Institute at Pittsburgh (Western Penitentiary).” The Commonwealth declined to oppose the class certification and, on December 11, 1972, a certification order was entered. On January 18, 1973 a consent judgment was entered, which, in pertinent part, enjoined the Commonwealth from confining any class member in a basement facility known as the Behavior Adjustment Unit (BAU). No immediate change was wrought by the injunction, because the BAU had already been ordered closed by the Governor of Pennsylvania one year earlier, a fact heavily relied upon by the Commonwealth in argument before this Court. The Governor’s order was rescinded on December 11, 1973, and prison officials, once again, began to use the BAU for confinement of unruly prisoners, notwithstanding the fact that such activity was clearly in violation of the January 18, 1973 consent judgment. After more than 10 months of such violative use, the Commonwealth sought relief from the consent judgment pursuant to Rule 60(b), F.R.C.P. Relief was granted by the district court without a hearing, and on January 19, 1976, we remanded with directions to conduct a hearing, at which time evidence in support of the Commonwealth’s motion could properly be gathered and made of record. Upon remand the plaintiff moved to have the district judge disqualify himself, pursuant to 28 U.S.C. § 455. This motion was denied. A hearing was held and, on August 24, 1976, the district court granted the Commonwealth’s motion to vacate the consent judgment. Both the issues of the district judge’s refusal to disqualify himself, and his grant of relief are raised on this appeal. Preliminary to our disposition of these two issues, however, a contention raised by the Commonwealth requires attention. In its brief, the Commonwealth noted, almost as an aside, that opposing counsel, Michael L. Rosenfield, Esq., of the National Emergency Civil Liberties Committee, “purports to represent a class no member of which has retained him and no member of which has appeared in this action other than Mayber-ry, who himself has professed no interest in this case.” While it is unclear what conclusion the Commonwealth seeks to support with this alleged set of facts, we perceive an issue which arguably draws into question our jurisdiction to pass on the merits of this appeal. Thus the following discussion is necessary. The relevant facts are as follows. After our remand to the district court, a hearing was held on April 6, 1976 at which time evidence in support of the Commonwealth’s motion was introduced. On April 19, 1976 Mr. Rosenfield filed a motion to withdraw as counsel. This motion was prompted by letters from Mayberry to Rosenfield and the district court, in which the plaintiff expressed a general dissatisfaction with Ro-senfield’s representation and demanded that he be allowed to proceed pro se. After a brief hearing, no transcript of which has apparently been made, the district judge granted Rosenfield’s motion to withdraw “insofar as it relate[d] to the legal representation of named plaintiff Mayber-ry. Insofar as it relate[d] to the legal representation of the plaintiff class . the petition [was] denied.” Rosenfield was ordered to “continue to represent the class until such time as other suitable counsel enter[ed] on behalf of said class in this case.” Rosenfield continued to represent the class through the time of the district court’s final disposition, and has taken this appeal on behalf of the class. We deal here only with the issue, raised by these facts, whether there no longer exists a live “case or controversy” within the meaning of Article III of the United States Constitution, where, in a class action, an appeal is taken by an attorney who was ordered by the district court to represent the interests of that class after its representative had dissolved his retainer of that attorney and taken no further action. While plaintiff Mayberry, in his April 9, 1976 letter to the court, indicated a desire to continue pro se, the record is silent regarding any subsequent action taken by him in opposition to the Commonwealth’s motion. If, as the Commonwealth has alleged, the class representative in this suit “has professed no interest” in these proceedings, and thus is not advancing any live interests before this Court, we must determine whether there remain parties at bar who have “such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues . . . .” Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962). Even assuming that we may no longer look to Mayberry to advance the necessary live interests at this stage in the proceedings, the record fails to raise any doubt that, at the time the complaint was filed and at the time the class was certified, Mayberry provided this jurisdictional prerequisite. That being so, while the same “case or controversy” requirement obtains at all stages of the litigation, including the present proceedings, we may now look to the interests of the class, rather than those of its representative, to provide such a live controversy. Sosna v. Iowa, 419 U.S. 393, 402, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975). Given that the class includes “all those who have been at any time subsequent to June 25, 1965, or who are at present, or who will hereafter be confined at the [Western Penitentiary]”, clearly there are presently class members subject to confinement in the BAU. Thus live interests, sufficient to meet the “case or controversy” requirement, are properly before the Court. THE DISQUALIFICATION ISSUE Shortly after our remand to the district court, directing that a hearing be held on the Commonwealth’s motion for relief from the consent judgment, the plaintiffs moved to have the district judge disqualify himself. The motion was denied. The proper inquiry on appeal is whether the district judge abused his discretion in so doing. Davis v. Board of School Comm’rs of Mobile Cty., 517 F.2d 1044, 1052 (5th Cir.), cert. denied, 425 U.S. 944, 96 S.Ct. 1685, 48 L.Ed.2d 188 (1976). The plaintiffs assert that, because the district judge granted the Commonwealth’s first motion without a hearing, and thus was allegedly predisposed towards granting rather extraordinary relief even in the absence of a properly developed record, his “impartiality might reasonably be questioned” within the meaning of 28 U.S.C. § 455(a). While the district court applied § 455 as amended, thus employing a more expansive standard for recusal, we need not pause to consider whether he did so properly in the face of Congress’ provision that the more expansive standard promulgated by the 1974 amendment shall not apply to any proceeding commenced prior to 1974. See In Re Virginia Elec. & Power Co., 539 F.2d 357 (4th Cir. 1976). Contra, Samuel v. University of Pittsburgh, 395 F.Supp. 1275 (W.D.Pa.), rev’d on other grounds, 538 F.2d 991 (3d Cir. 1976). Instead we feel that, under either standard, the plaintiffs’ motion was properly denied. Plaintiffs maintain that they are not urging upon this Court a general rule requiring the disqualification of each district judge to whom a case is remanded because of an error committed by that judge. Instead, they contend that the particular error for which we remanded, i. e., the failure to properly develop a record upon which an enlightened disposition could be made of the Commonwealth’s request for relief from a final judgment, somehow ineluctably summons reasonable questions concerning the impartiality of the judge committing that error. We disagree. Noting that, other than the error itself, no facts are alleged in support of the plaintiffs’ requested disqualification, we can perceive no distinction between the alleged inference of partiality raised by the error committed in this case and that raised by any one of a host of other conceivable procedural errors. We doubt, therefore, that in providing for disqualification upon a judge’s questioned impartiality, Congress considered such an inference to be “reasonable” within the meaning of § 455. In expressing its concern that the new standard promulgated by § 455 might become a vehicle for “judge shopping”, see 1974 U.S.Code Cong. and Adm. News p. 6355, we think it clear that Congress was cautioning against the adoption of the argument made by plaintiffs, and hold, therefore, that the district judge did not abuse his discretion in refusing to disqualify himself. RELIEF FROM FINAL JUDGMENT We now turn to the central question presented by this appeal — whether, in vacating the January 18, 1973 consent judgment, the district court properly exercised its discretion. Because the record is barren of facts indicating any entitlement to 60(b) relief, we hold the grant of such relief to be an abuse of discretion and, therefore, reverse. Rule 60(b), F.R.C.P., provides that “[o]n 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) . it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from operation of the judgment.” While the language of either provision is broad, neither presents the court with a “standardless residual discretionary power to set aside judgments . . . .” Mayberry v. Maroney, 529 F.2d 332, 337 (3d Cir. 1976) (Gibbons, J., concurring). Instead it is settled that such relief is extraordinary and may be granted only upon a showing of “exceptional circumstances”. Id. at 335; Stradley v. Cortez, 518 F.2d 488, 493 (3d Cir. 1975); John E. Smith’s Sons Co. v. Lattimer Foundry & Mach. Co., 239 F.2d 815 (3d Cir. 1956); Torockio v. Chamberlain Mfg. Co., 56 F.R.D. 82 (W.D.Pa.), aff’d, 474 F.2d 1340 (3d Cir. 1973). Thus a party seeking such relief must bear a heavy burden of showing circumstances so changed that “dangers, once substantial, have become attenuated to a shadow,” United States v. Swift & Co., 286 U.S. 106, 119, 52 S.Ct. 460, 464, 76 L.Ed. 999 (1932), and that, absent such relief an “extreme” and “unexpected” hardship will result. Id. We think a healthy respéct for the finality of judgments demands no less. In granting the Commonwealth’s motion below, the court relied upon evidence adduced at a hearing, at which the only witness was a prison official whose employment at the Western Penitentiary began after the consent judgment was entered, and a personal view of the BAU facility. It concluded that the “adequate evidence of changed circumstances” which we required upon remand, Mayberry, supra, 529 F.2d at 335, was as follows. First “the Commonwealth’s proposed use of the BAU basement area is now subject to specific limitations not in effect prior to January 1973 — principally, the limitation to emergency confinement for a maximum of 48 hours. Second, the testimony of Deputy Superintendent Zimmerman and the Court’s own view of the premises in question support the proposition that recourse to the basement facility on an emergency or crisis basis is essential to the orderly management of Western Penitentiary.” Mayberry v. Maroney, 418 F.Supp. 669, 673 (W.D.Pa. 1976). The first “changed circumstance,” if that be an appropriate label, is simply not that which is contemplated by the rule. The parties have agreed to, and the court has sanctioned, the closing of an allegedly offensive facility. The Commonwealth may not now artificially create its own “changed circumstance,” and thus relieve itself from a free, calculated and deliberate choice, by offering a substitute remedy1 which provides a lesser safeguard against the injuries complained of on behalf of the class. Obviously this alternative remedy would be more convenient for the Commonwealth. And it may be that, as the district court concluded, this suggested substitute remedy “is neither unjust nor unreasonable.” Id. at 674. But, in the words of Mr. Justice Cardozo, “[w]e are not framing a decree. We are asking ourselves whether anything has happened that will justify us now in changing a decree. The injunction, whether right or wrong, is not subject to impeachment in its application to the conditions that existed at its making.” Swift & Co., supra, 286 U.S. at 119, 52 S.Ct. at 464. Rather than this manufactured “changed circumstance,” we would think it relevant to show that the physical conditions existing in the BAU had been improved, for that surely must have been one of the sources of the complaint on behalf of the class. Yet, while the district court concluded on the basis of its personal view, that “[tjhough certainly not a particularly pleasant place of confinement . . . , that area is bright, dry and clean, the individual cells small but reasonably adequate for use on the temporary (48-hour minimum) basis . . . ,” Mayberry, supra, 418 F.Supp. at 672, it also found that “[t]he record does not indicate whether the physical condition of the area is the same as it was prior to January 1973.” Id. at 672 n.6. The second “changed circumstance” found by the court below is similarly insufficient to warrant this extraordinary relief. While the Commonwealth’s witness testified that “recourse to the basement facility on an emergency or crisis basis is essential to the orderly management of Western Penitentiary,” id. at 673, the district court failed to determine that this need was any greater than that which existed in January 1973, and which was consciously subordinated by the Commonwealth in its desire to settle the action. The Commonwealth “cannot be relieved of such a choice because hindsight seems to indicate to [it] that [its] decision . . . was probably wrong. . There must be an end to litigation someday, and free, calculated, deliberate choices are not to be relieved from.” Ackermann v. United States, 340 U.S. 193, 198, 71 S.Ct. 209, 211, 95 L.Ed. 207 (1950). The fact that, at the time the consent judgment was entered, the BAU had already been closed pursuant to an order by the Governor of Pennsylvania, and thus •that the decree “merely embodied a commitment already in existence,” Mayberry, supra, 418 F.Supp. at 671 n.2, does not alter our view of this case. Surely a party’s conscious decision to suffer a judgment against it is not such a meaningless act that relief is available simply because a parallel commitment has been terminated by executive fiat. We might end our discussion at this point, but for the district court’s lengthy analysis of the impact of Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976) upon this case. After describing Rizzo as precluding federal judicial review of the “managerial” decisions of state prison officials, “[a]bsent a violation of the Eighth Amendment’s prohibition of cruel and unusual punishments,” Mayberry, supra, 418 F.Supp. at 672, the district court indicated a strong inclination to deny injunctive relief were it faced with a de novo proceeding. The issue in this case does not involve the propriety of federal intervention into the “day-to-day administration of prison affairs . ,” id., a fact that the district court somewhat grudgingly recognized. That issue has already been resolved by the parties at bar. Even assuming that Rizzo represents a change in the state of the law from the time the consent judgment was entered, it is settled that Rule 60(b)(5) does not contemplate relief based merely upon precedential evolution. Lubben v. Selective Service System Local Bd. No. 27, 453 F.2d 645, 650 (1st Cir. 1972); Wallace Clark & Co., Inc. v. Acheson Industries, Inc., 394 F.Supp. 393, 395 n.4 (S.D.N.Y.), aff’d, 532 F.2d 846 (2d Cir.), cert. denied, 425 U.S. 976, 96 S.Ct. 2177, 48 L.Ed.2d 800 (1976). Thus the only issue before this Court is whether the Commonwealth offered sufficient evidence of circumstances so exceptional that our overriding interest in the finality and repose of judgments may properly be overcome. No such evidence having been adduced, the district court’s vacation of the January 1973 consent judgment was without the limits of its discretion. Accordingly, we reverse and remand to the district court with directions to vacate its order of August 24, 1976. . Mayberry v. Maroney, C.A. 68-959, Doc. # 44 (W.D.Pa. December 11, 1972). . Id., Doc. # 47. . Id., Doc. # 44. . Mayberry v. Maroney, 529 F.2d 332 (3d Cir. 1976). . Mayberry v. Maroney, C.A. 68-959, Memo. Opinion Doc. # 63 (W.D.Pa. March 19, 1976). . Mayberry v. Maroney, 418 F.Supp. 669 (W.D. Pa.1976). . Brief for Appellee at 14. . Mayberry v. Maroney, C.A. 68-959, Doc. #’s 68 and 69 (W.D.Pa., Apr. 1976). . Id, Doc. # 71. . Id . These same facts may give rise to a separate question relating to the requirement that a class action may proceed only if “the representative parties will fairly and adequately protect the interests of the class.” Rule 23(a)(4), F.R.C.P. Such a question is one of procedure and, other than the considerations discussed in the text, does not impact upon our own jurisdiction. Harris v. Palm Springs Alpine Estates, Inc., 329 F.2d 909, 912-913 (9th Cir. 1964). That being so, and because no Rule 23 issue was raised by the parties, or treated by the court below, we decline to reach any such issue here. . Plaintiffs expressly disavow any reliance upon 28 U.S.C. § 144, and thus are not claiming that any “personal bias or prejudice either against the [plaintiffs] or in favor of any adverse party . . . ” exists. Brief for Appellant, p. 1. . Pub.L. 93-512 § 1 (December 5, 1974). . Id, § 3. . The Commonwealth responds, in its brief, by arguing that Mr. Henry Swanger, then counsel for the plaintiff class, expressly agreed to have the district court decide the question without a hearing. Unfortunately, although such an agreement was obliquely referred to at a subsequent conference, see Transcript, February 20, 1975, p. 3, the proceeding at which this alleged agreement was made was not recorded. . The 5th Circuit has held that the determination whether a judge’s impartiality might reasonably be questioned should “be made on the basis of conduct extra-judicial in nature as distinguished from conduct within a judicial context.” Davis v. Board of School Comm’rs of Mobile Cty., 517 F.2d 1044, 1052 (5th Cir.) cert. denied 425 U.S. 944, 96 S.Ct. 1685, 48 L.Ed.2d 188 (1976). Insofar as the policy behind § 455 is concerned with matters of potential influence which exist “outside the courtroom”, we agree that the primary inquiry ought to be into extrajudicial conduct. There are no such circumstances of record in this case. . Zimmerman testified that the present practice, in dealing with an unruly prisoner, is to transfer him to another penal facility, and that such transfers are a fairly common occurrence. Transcript, April 6, 1976, pp. 10, 17, 21. Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
sc_certreason
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. CALIFORNIA v. HODARI D. No. 89-1632. Argued January 14, 1991 Decided April 23, 1991 Scalia, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, Blackmun, O’Connor, Kennedy, and Souter, JJ., joined. Stevens, J., filed a dissenting opinion, in which Marshall, J., joined, post, p. 629. Ronald E. Niver, Deputy Attorney General of California, argued the cause for petitioner. With him on the briefs were John K. Van de Kamp, Attorney General, Richard B. Igle-hart, Chief Assistant Attorney General, John H. Sugiyama, Senior Assistant Attorney General, and Clifford K. Thompson, Jr., and Morris Beatus, Deputy Attorneys General. Clifford M. Sloan argued the cause for the United States as amicus curiae urging reversal. On the brief were Solicitor General Starr, Assistant Attorney General Mueller, Deputy Solicitor General Bryson, and Paul J. Larkin, Jr. James L. Lozenski, by appointment of the Court, 498 U. S. 935, argued the cause for respondent. With him on the brief was J. Bradley O’Connell Briefs of amici curiae urging reversal were filed for the Criminal Justice Legal Foundation by Kent S. Scheidegger and Charles L. Hobson; and for the Wayne County Prosecuting Attorney by John D. O’Hair, pro se, and Timothy A. Baughman. Briefs of amici curiae urging affirmance were filed for the California Attorneys for Criminal Justice by Paul L. Gabbert; and for the National Association of Criminal Defense Lawyers by Paul Morris. Briefs of amici curiae were filed for the Appellate Committee of the California District Attorneys Association by Ira Reiner and Harry B. Sondheim; and for Marvin Calm, pro se. Justice Scalia delivered the opinion of the Court. Late one evening in April 1988, Officers Brian McColgin and Jerry Pertoso were on patrol in a high-crime area of Oakland, California. They were dressed in street clothes but wearing jackets with “Police” embossed on both front and back. Their unmarked car proceeded west on Foothill Boulevard, and turned south onto 63rd Avenue. As they rounded the corner, they saw four or five youths huddled around a small red car parked at the curb. When the youths saw the officers’ car approaching they apparently panicked, and took flight. The respondent here, Hodari D., and one companion ran west through an alley; the others fled south. The red car also headed south, at a high rate of speed. The officers were suspicious and gave chase. McColgin remained in the car and continued south on 63rd Avenue; Pertoso left the car, ran back north along 63rd, then west on Foothill Boulevard, and turned south on 62nd Avenue. Hodari, meanwhile, emerged from the alley onto 62nd and ran north. Looking behind as he ran, he did not turn and see Pertoso until the officer was almost upon him, whereupon he tossed away what appeared to be a small rock. A moment later, Pertoso tackled Hodari, handcuffed him, and radioed for assistance. Hodari was found to be carrying $130 in cash and a pager; and the rock he had discarded was found to be crack cocaine. In the juvenile proceeding brought against him, Hodari moved to suppress the evidence relating to the cocaine. The court denied the motion without opinion. The California Court of Appeal reversed, holding that Hodari had been “seized” when he saw Officer Pertoso running towards him, that this seizure was unreasonable under the Fourth Amendment, and that the evidence of cocaine had to be suppressed as the fruit of that illegal seizure. The California Supreme Court denied the State’s application for review. We granted certiorari. 498 U. S. 807 (1990). As this case comes to us, the only issue presented is whether, at the time he dropped the drugs, Hodari had been “seized” within the meaning of the Fourth Amendment. If so, respondent argues, the drugs were the fruit of that seizure and the evidence concerning them was properly excluded. If not, the drugs were abandoned by Hodari and lawfully recovered by the police, and the evidence should have been admitted. (In addition, of course, Pertoso’s seeing the rock of cocaine, at least if he recognized it as such, would provide reasonable suspicion for the unquestioned seizure that occurred when he tackled Hodari. Cf. Rios v. United States, 364 U. S. 253 (1960).) We have long understood that the Fourth Amendment’s protection against “unreasonable . . . seizures” includes seizure of the person, see Henry v. United States, 361 U. S. 98, 100 (1959). From the time of the founding to the present, the word “seizure” has meant a “taking possession,” 2 N. Webster, An American Dictionary of the English Language 67 (1828); 2 J. Bouvier, A Law Dictionary 510 (6th ed. 1856); Webster’s Third New International Dictionary 2057 (1981). For most purposes at common law, the word connoted not merely grasping, or applying physical force to, the animate or inanimate object in question, but actually bringing it within physical control. A ship still fleeing, even though under attack, would not be considered to have been seized as a war prize. Cf. The Josefa Segunda, 10 Wheat. 312, 325-326 (1825). A res capable of manual delivery was not seized until “tak[en] into custody.” Pelham v. Rose, 9 Wall. 103, 106 (1870). To constitute an arrest, however— the quintessential “seizure of the person” under our Fourth Amendment jurisprudence — the mere grasping or application of physical force with lawful authority, whether or not it succeeded in subduing the arrestee, was sufficient. See, e. g., Whitehead v. Keyes, 85 Mass. 495, 501 (1862) (“[A]n officer effects an arrest of a person whom he has authority to arrest, by laying his hand on him for the purpose of arresting him, though he may not succeed in stopping “and holding him”); 1 Restatement of Torts §41, Comment h (1934). As one commentator has described it: “There can be constructive detention, which will constitute an arrest, although the party is never actually brought within the physical control of the party making an arrest. This is accomplished by merely touching, however slightly, the body of the accused, by the party making the arrest and for that purpose, although he does not succeed in stopping or holding him even for an instant; as where the bailiff had tried to arrest one who fought him off by a fork, the court said, ‘If the bailiff had touched him, that had been an arrest ....”’ A. Cornelius, Search and Seizure 163-164 (2d ed. 1930) (footnote omitted). To say that an arrest is effected by the slightest application of physical force, despite the arrestee’s escape, is not to say that for Fourth Amendment purposes there is a continuing arrest during the period of fugitivity. If, for example, Pertoso had laid his hands upon Hodari to arrest him, but Hodari had broken away and had then cast away the cocaine, it would hardly be realistic to say that that disclosure had been made during the course of an arrest. Cf. Thompson v. Whitman, 18 Wall. 467, 471 (1874) (“A seizure is a single act, and not a continuous fact”). The present case, however, is even one step further removed. It does not involve the application of any physical force; Hodari was untouched by Officer Pertoso at the time he discarded the cocaine. His defense relies instead upon the proposition that a seizure occurs “when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.” Terry v. Ohio, 392 U. S. 1, 19, n. 16 (1968) (emphasis added). Hodari contends (and we accept as true for purposes of this decision) that Pertoso’s pursuit qualified as a “show of authority” calling upon Hodari to halt. The narrow question before us is whether, with respect to a show of authority as with respect to application of physical force, a seizure occurs even though the subject does not yield. We hold that it does not. The language of the Fourth Amendment, of course, cannot sustain respondent’s contention. The word “seizure” readily bears the meaning of a laying on of hands or application of physical force to restrain movement, even when it is ultimately unsuccessful. (“She seized the purse-snatcher, but he broke out of her grasp.”) It does not remotely apply, however, to the prospect of a policeman yelling “Stop, in the name of the law!” at a fleeing form that continues to flee. That is no seizure. Nor can the result respondent wishes to achieve be produced — indirectly, as it were — by suggesting that Pertoso’s uncomplied-with show of authority was a common-law arrest, and then appealing to the principle that all common-law arrests are seizures. An arrest requires either physical force (as described above) or, where that is absent, submission to the assertion of authority. “Mere words will not constitute an arrest, while, on the other hand, no actual, physical touching is essential. The apparent inconsistency in the two parts of this statement is explained by the fact that an assertion of authority and purpose to arrest followed by submission of the arrestee constitutes an arrest. There can be no arrest without either touching or submission.” Perkins, The Law of Arrest, 25 Iowa L. Rev. 201, 206 (1940) (footnotes omitted). We do not think it desirable, even as a policy matter, to stretch the Fourth Amendment beyond its words and beyond the meaning of arrest, as respondent urges. Street pursuits always place the public at some risk, and compliance with police orders to stop should therefore be encouraged. Only a few of those orders, we must presume, will be without adequate basis, and since the addressee has no ready means of identifying the deficient ones it almost invariably is the responsible course to comply. Unlawful orders will not be deterred, moreover, by sanctioning through the exclusionary rule those of them that are not obeyed. Since policemen do not command “Stop!” expecting to be ignored, or give chase hoping to be outrun, it fully suffices to apply the deterrent to their genuine, successful seizures. Respondent contends that his position is sustained by the so-called Mendenhall test, formulated by Justice Stewart’s opinion in United States v. Mendenhall, 446 U. S. 544, 554 (1980), and adopted by the Court in later cases, see Michigan v. Chesternut, 486 U. S. 567, 573 (1988); INS v. Delgado, 466 U. S. 210, 215 (1984): “[A] person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” 446 U. S., at 554. See also Florida v. Royer, 460 U. S. 491, 502 (1983) (opinion of White, J.). In seeking to rely upon that test here, respondent fails to read it carefully. It says that a person has been seized “only if,” not that he has been seized “whenever”; it states a necessary, but not a sufficient, condition for seizure — or, more precisely, for seizure effected through a “show of authority.” Mendenhall establishes that the test for existence of a “show of authority” is an objective one: not whether the citizen perceived that he was being ordered to restrict his movement, but whether the officer’s words and actions would have conveyed that to a reasonable person. Application of this objective test was the basis for our decision in the other case principally relied upon by respondent, Chesternut, supra, where we concluded that the police cruiser’s slow following of the defendant did not convey the message that he was not free to disregard the police and go about his business. We did not address in Chester-nut, however, the question whether, if the Mendenhall test was met — if the message that the defendant was not free to leave had been conveyed — a Fourth Amendment seizure would have occurred. See 486 U. S., at 577 (Kennedy, J., concurring). Quite relevant to the present case, however, was our decision in Brower v. Inyo County, 489 U. S. 593, 596 (1989). In that case, police cars with flashing lights had chased the decedent for 20 miles — surely an adequate “show of authority”— but he did not stop until his fatal crash into a police-erected blockade. The issue was whether his death could be held to be the consequence of an unreasonable seizure in violation of the Fourth Amendment. We did not even consider the possibility that a seizure could have occurred during the course of the chase because, as we explained, that “show of authority” did not produce his stop. Id., at 597. And we discussed, ibid., an opinion of Justice Holmes, involving a situation not much different from the present case, where revenue agents had picked up containers dropped by moonshiners whom they were pursuing without adequate warrant. The containers were not excluded as the product of an unlawful seizure because “[t]he defendant’s own acts, and those of his associates, disclosed the jug, the jar and the bottle — and there was no seizure in the sense of the law when the officers examined the contents of each after they had been abandoned.” Hester v. United States, 265 U. S. 57, 58 (1924). The same is true here. In sum, assuming that Pertoso’s pursuit in the present case constituted a “show of authority” enjoining Hodari to halt, since Hodari did not comply with that injunction he was not seized until he was tackled. The cocaine abandoned while he was running was in this case not the fruit of a seizure, and his motion to exclude evidence of it was properly denied. We reverse the decision of the California Court of Appeal, and remand for further proceedings not inconsistent with this opinion. It is so ordered. California conceded below that Officer Pertoso did not have the “reasonable suspicion” required to justify stopping Hodari, see Terry v. Ohio, 392 U. S. 1 (1968). That it would be unreasonable to stop, for brief inquiry, young men who scatter in panic upon the mere sighting of the police is not self-evident, and arguably contradicts proverbial common sense. See Proverbs 28:1 (“The wicked flee when no man pursueth”). We do not decide that point here, but rely entirely upon the State’s concession. For this simple reason — which involves neither “logic-chopping,” post, at 646, nor any arcane knowledge of legal history — it is irrelevant that English law proscribed “an unlawful attempt to take a presumptively innocent person into custody.” Post, at 631. We have consulted the common law to explain the meaning of seizure — and, contrary to the dissent’s portrayal, to expand rather than contract that meaning (since one would not normally think that the mere touching of a person would suffice). But neither usage nor common-law tradition makes an attempted seizure a seizure. The common law may have made an attempted seizure unlawful in certain circumstances; but it made many things unlawful, very few of which were elevated to constitutional proscriptions. Nor have we ever done so. The dissent is wrong in saying that Terry v. Ohio, 392 U. S. 1 (1968), “broadened the range of encounters . . . encompassed within the term ‘seizure,’ ” post, at 635. Terry unquestionably involved conduct that would constitute a common-law seizure; its novelty (if any) was in expanding the acceptable justification for such a seizure, beyond probable cause. The dissent is correct that Katz v. United States, 389 U. S. 347 (1967), “unequivocally rejectfs] the notion that the common law of arrest defines the limits of the term ‘seizure’ in the Fourth Amendment,” post, at 637. But we do not assert that it defines the limits of the term “seizure”; only that it defines the limits of a seizure of the person. What Katz stands for is the proposition that items which could not be subject to seizure at common law (e. g., telephone conversations) can be seized under the Fourth Amendment. That is quite different from saying that what constitutes an arrest (a seizure of the person) has changed. Question: What reason, if any, does the court give for granting the petition for certiorari? A. case did not arise on cert or cert not granted B. federal court conflict C. federal court conflict and to resolve important or significant question D. putative conflict E. conflict between federal court and state court F. state court conflict G. federal court confusion or uncertainty H. state court confusion or uncertainty I. federal court and state court confusion or uncertainty J. to resolve important or significant question K. to resolve question presented L. no reason given M. other reason Answer:
songer_appel1_1_3
D
What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case. KENDALL CO. v. TETLEY TEA CO., Inc. No. 4547. United States Court of Appeals First Circuit. June 1, 1951. Hector M. Holmes, Boston, Mass. (H. L. Kirkpatrick, Edgar H. Kent and Fish, Richardson & Neave, all of Boston, Mass., on brief), for appellant. T. Clay Lindsey, Hartford, Conn. (George P. Dike, Boston, Mass., on brief), for ap-pellee. Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges. MAGRUDER, Chief Judge. In this patent infringement suit, the court below gave judgment for the defendant upon a holding that the claims in suit are invalid. 89 F.Supp. 897. The patent in question, No. 2,277,050, is a product patent for an infuser, particularly a tea bag. It was applied for by Raymond E. Reed and John F. Ryan, designated as joint inventors, and was issued on March 24, 1942, to appellant herein, The Kendall Company, as assignee. The Kendall Company, a manufacturer of various woven and non-woven fabrics, does not itself manufacture tea bags, but it does manufacture a fabric known as “Webril”, a form of which is designed for use in the making of tea bags. Using a competing material purchased from C. H. Dexter & Sons, Inc., the defendant-appellee Tetley Tea Company manufactures heat-sealed tea bags alleged to infringe the patent in suit. Dexter has conducted and controlled the defense of the case, having agreed to indemnify Tetley for any loss sustained on account of the alleged infringement. Raymond E. Reed came to the Kendall Mills Division of The Kendall Company at Walpole, Massachusetts, in December, 1933, to take a principal part in a research project devoted to the development of a fabric which would not require the expensive processes of spinning and weaving. The broad idea was that thermoplastic fibers, particularly those of cellulose acetate, might be so treated as to form webs or fabrics either alone or in conjunction with non-thermoplastic fibers, such as cotton or wool, and that these cheaper materials might replace the more expensive woven fabrics. After many experiments it was found that an apparently useful product could best be formed by producing with textile machinery a web of cellulose acetate fibers and cotton fibers intermingled, and then subjecting the web to heat and pressure to develop the inherent adhesive properties of the cellulose acetate fibers so that they would adhere to each other and to the cotton fibers at intersecting points. Thus could be formed a material of some tensile strength, and wide variations in pliability and porosity depending upon the ratio of cellulose acetate fibers in the mixture and the degree of heat and pressure used. It .was found preferable to add a plasticizer to the cellulose acetate fibers in order to lower the temperature at which the fibers would become adhesive, and such plasticizers were obtained on the commercial market. Reed and his co-workers also found that several webs so formed could be superimposed and subjected to heat and pressure to produce laminated products of varying thicknesses. The experiments had reached such a state of development by July 5, 1935, that Reed, as sole inventor, on that day filed an application in the Patent Office (Serial No. 30,022) setting forth the above discoveries in considerable detail and describing the various types of fabric which might be produced by variations in the method. No mention was made in the application of the possible use of the fabric for the manufacture of tea bags or other infusers. On December 2, 1935, Reed filed an application for a patent for a collar and cuff inter-liner, which eventuated in patent No. 2,202,025 issued May 28, 1940, to Kendall as assignee; the disclosure in this application described the method of making the interlining material substantially as in the previous application (Serial No. 30,022), but the claims were limited to its use as a collar fabric. On November 6, 1939, Reed, as sole inventor, filed an application for a patent on a textile fabric and method of making the same, the application being described as “a continuation, in part, of my copending application Ser. No. 30,022, filed July 5, 1935.” It is conceded that in essential parts “the continuing case discloses exactly the same invention described and claimed in the original application. In fact, most of the claims were taken from the original case, some of them being modified slightly in order better to define the invention, and many of them being copied verbatim.” The earlier application, Serial No. 30,022, was afterwards abandoned, and the continuing application eventuated in patent No. 2,277,049, issued to Kendall as assignee of Reed, on March 24, 1942, the same date on which the patent now in suit was issued. Meanwhile, by August of 1936, Reed had conceived the idea that a form of the above-described fabric, which goes by the trade name “Webril”, and was so trademarked in 1938, might be useful for the manufacture of tea bags; and he experimented with the development of a satisfactory material for this purpose. He thought at that time, 'however, that it would be necessary to kier-boil and bleach the fabric after its manufacture in order to render it tasteless and non-toxic. This had been the process used in the making of the prior-art gauze tea bags, but such process when used on the Webril fabric chemically regenerated its thermoplastic fibers to pure cellulose and thus rendered the fibers no longer thermoplastic. Therefore, while the fabric was made originally as disclosed substantially in the 1935 application, it could not be made into a heat-sealed envelope, and could be used only in a stapled or sewed tea bag. The product in this form was apparently not marketed commercially. In January, 1937, Reed went to work for appellant’s subsidiary, Bauer & Black, in Chicago. In the following month Dr. John F. Ryan was employed at the Kendall plant in Walpole to work on various Web-ril products, including tea bags. When Reed returned to Walpole in August, 1938, he and Ryan collaborated on the further development of the tea bag. According to Reed’s testimony, in late 1938 or early 1939 he and Ryan first conceived the idea of fabricating a material which would not have to be kier-boiled and bleached and which would be heat-sealing. During Reed’s absence there had been developed an improved method of bleaching cotton fibers so that they would be pure and tasteless, and by experimentation Reed and Ryan found that at least two plasticizers were available which were tasteless and non-toxic. These plasticizers, prepared by Monsanto Chemical Company under the names Santicizers E-1S and M-17, had been known at least before 1937 and had been tried out by Reed on other products. To make the fabric heat-sealable, it was found preferable that a relatively heavy concentration of the thermoplastic fibers be placed on one surface and a light concentration on the other, so that the material would not stick to the heat-sealing machine. To accomplish this, Reed and Ryan designed a fabric consisting of three plies or webs hot-calendered together, the top web consisting of 60 per cent thermoplastic fibers, the other two containing only S to 10 per cent of such fibers. This material, known as Webril 1300, was placed in commercial production around August, 1939, the earliest sale appearing to be in the following month. On August 31, 1940, Reed and Ryan, as joint inventors, applied for the patent in suit. Their disclosure opens by pointing out the wide use of infusers for the packaging of foodstuffs, such as tea and coffee, as well as their use by chemists, druggists, and others; and explains that for purposes of convenience the infuser will be referred to thereinafter as a “tea bag” and the material to be infused as “tea”. The inventors then proceed to. list as the three fundamental requirements of a satisfactory tea bag (1) that it be sufficiently water-permeable to allow rapid infusion, (2) that the structure of the bag be such as to prevent any substantial sifting through of the tea leaves, and (3) that it be very inexpensive to manufacture. They point out the disadvantages of the prior-art tea bags, such as those made of gauze or paper. They recite that they have discovered a way of making a satisfactory tea bag by using “an unwoven fabric from unspun fibers * * * preferably. * * * by mixing textile fibers of the common types with other fibers having latent adhesive properties, and then developing such properties and thereby uniting a sufficient number of the fibers to produce a coherent, porous fabric structure.” As an example, it is stated that plasticized cellulose acetate and bleached cotton fibers in the proportions of 40 per cent of the former and 60 per cent of the latter may be mixed together by feeding into a picker lapper. “After the mixture has been converted into lap rolls on this machine, it is then carded and the webs from three carding machines are next superposed or combined to produce a single web which is subsequently treated to develop the latent adhesive properties of the cellulose acetate fibers. Such a treatment may consist in hot-calendering the combined web, the rolls being heated to a sufficient temperature to soften, somewhat at least, the exterior of the cellulose acetate fibers and thus make them adhere firmly to the cotton fibers.” The disclosure points out that rayon and other non-thermoplastic fibers may be used in place of cotton, and that other thermoplastic fibers, such as vinyl, may be used as the binder. Further, the inventors indicate that while the above-described fabric is heat-sealable, a more satisfactory heat-sealing fabric can be made by concentrating a larger proportion of thermoplastic fibers on one surface; and they show how this can be done by placing on the top surface a web containing 60 per cent thermoplastic fibers and decreasing the proportion of such fibers in the other two webs to 5 or 10 per cent. In the specifications they do not confine themselves to the use of their described fabric in a heat-sealed infuser, but also suggest that it may be used in a sewed, stapled, or pouch-type bag. They conclude with the usual broad statement that they have disclosed only the preferred form of their invention and that some, or'all, of the advantages and novel features of the invention may be obtained in modified embodiments of it. The claims in suit are Nos. 1, 2, 3, 5, 12, and 14, the last two of which incorporate by reference, and amplify, claim 4. Claim 1 covers: “An infuser comprising a porous envelope for enclosing a material adapted to be infused in a liquid, a substantial portion at least of said envelope consisting essentially of heterogeneously intermingled unspun water-insoluble fibers bonded together to form a fibrous structure highly pervious to liquids, a substantial proportion of said fibers having normally latent adhesive properties adapted to be developed by heat.” Claim 2 is identical with claim 1, except that instead of the final phrase it calls for “a substantial proportion of said fibers being thermoplastic and the envelope including overlapped layers united by the direct adhesion of the thermoplastic fibers of one layer to fibers of another layer.” (In other words, claim 2 is specifically limited to a heat-sealed bag, which apparently claim 1 is not.) Claim 3 adds to claim 1 only that the “said fibers having normally adhesive properties are stable in hot water but are adapted to become adhesive at temperatures above that of boiling water”; this claim, like claim 1, is also apparently not limited to a heat-sealed bag. Claim 5 substitutes for the last phrase in claim 1 “a high proportion of said fibers having normally latent thermoplastic properties and being present in such quantity as to make said portion of the envelope inherently heat-sealable due to the presence of said thermoplastic properties.” (This claim, the same as claim 2, by way of contrast with the language of claims 1 and 3, indicates that the latter claims are not confined to heat-sealed bags, or even to bags having a sufficient proportion of thermoplastic fibers to be heat-sealable.) Claim 4, which is incorporated by reference in claims 12 and 14, reads: “An infuser comprising a porous envelope for enclosing a material adapted to be infused in a liquid, a substantial portion at least of said envelope consisting essentially of an unwoven sheet material composed of un-spun fibers and a water-insoluble binder distributed in a discontinuous form substantially throughout said portion of the envelope, said binder and said fibers being adhesively united into a sheeted structure, highly pervious to air and water but capable of substantially preventing sifting of dry particles of said material therethrough, said binder having normally latent adhesive properties adapted to be developed by heat.” (This requires only “an unwoven sheet material” and a water-insoluble la-tently adhesive binder, not necessarily in fiber form.) Claim 12 adds that marginal portions of the porous envelope described in claim 4 “are united by the adhesive properties of said thermoplastic binder”; thus the claim is limited to a heat-sealed tea bag, but the material need not contain any thermoplastic fibers. Claim 14 covers an infuser as in claim 4, “in which said binder is present in fiber form and the concentration of binder fibers is considerably higher in one surface of said sheet material than in the opposite surface”, but claim 14 is not limited to heat-sealed bags. As an alternative ground of decision, the court below held the patent invalid because whatever invention was disclosed in the application was that of Reed alone, not of Reed and Ryan jointly. There is authority for the proposition that where two or more persons obtain a joint patent for what was invented solely by one of them, the patent is void. Duplex Envelope Co., Inc., v. Denominational Envelope Co., 4 Cir., 1935, 80 F.2d 179, 186; 1 Walker on Patents (Deller’s ed.) § 118, and cases cited. We are not prepared to depart from this rule, though it was sharply criticized in a dictum in Buono v. Yankee Maid Dress Corp., 2 Cir., 1935, 77 F.2d 274, 278. Nor are we prepared to take the distinction suggested in De Laski & Thropp Circular Woven Tire Co. v. William R. Thropp & Sons Co., D.C.D.N.J., 1914, 218 F. 458, 465, affirmed 3 Cir., 1915, 226 F. 941, that the rule should be inapplicable where the patent is issued directly to the assignee of the purported joint inventors. It is difficult to see how the assignee could stand any better than his assignors; if a patent must be issued to the inventor, not to the inventor and another, it would seem that the application for the patent must be signed by the inventor, not by the inventor and another, whether or not the patent is issued directly to an assignee. However, it is generally agreed that this defense is a technical one regarded with disfavor by the courts and requiring very clear and convincing proof to sustain it. Klein v. American Casting & Mfg. Corp., 2 Cir., 1937, 87 F.2d 291, 294. Contrary to the view taken by the district judge, we think that on the evidence in the record, if the disclosure in the patent in suit is deemed to be a sufficient advance over the prior art to constitute invention, the invention is that of Reed and Ryan jointly, not of Reed alone. Prior to his collaboration with Ryan, Reed had apparently not conceived of a heat-sealing infuser. True, Reed alone had developed the method of making the Webril fabric, a variation of which was later used for the infuser described in the patent in suit, and he had also recognized that such fabric might be usable as a tea bag. But it was the joint work of Reed and Ryan from the fall of 1938 to August of 1939 that brought forth the actual product described in the patent. The only tea bag conceived of by Reed previous to his association with Ryan, so far as the record shows, was one made from Reed’s basic material, but subsequently kier-boiled and bleached, and not heatsealable. The two men together recognized and worked out the problems of tastelessness, non-toxicity, and heat-sealability. Whether that was a sufficient advance over the prior art to justify a patent to Reed and Ryan as joint inventors remains to be considered. So far as concerns prior-art tea bags, we do not think enough was shown to make out an anticipation of the alleged joint invention by Reed and Ryan, though their claims were perhaps too broadly stated. No doubt, the idea of a tea ball or tea bag is quite old, and the conception of using any particular existing material to make such a product could hardly, without more, amount to a patentable invention. Cf. Hotchkiss v. Greenwood, 1850, 11 How. 248, 13 L.Ed. 683, with Smith v. Goodyear Dental Vulcanite Co., 1876, 93 U.S. 486, 23 L.Ed. 952. Most of the earlier tea bag patents involved the use of some perforated material, such as parchment paper, and depended for their novelty principally on the particular design employed: e. g., patent No. 1,247,906 to Tully; patent No. 1,489,807 to Anderson; patent No. 2,138,358 to Salfisiberg; patent No: 2,149,-713 to Webber. And, as admitted by the disclosure in the patent in suit, non-perforated, inherently porous material, such as gauze or filter paper, was in common use in the tea bag manufacture at the time of the present claimed invention. Moreover, the idea was not new of utilizing some thermoplastic material so as to make the fabric heat-sealable, and thus to eliminate the operations of sewing or stapling; though prior patents had referred only to the use of some thermoplastic coating, not to the use of thermoplastic fibers. See Salfisberg, Webber, supra. Thus the differences between the disclosure of the patent in suit over the prior-art tea bags seem to be chiefly two: (1) The use of a thermoplastically bonded fabric which is inherently porous, and is unwoven or unspun; and (2) the incorporation of thermoplastic fibers to make the infuser heat-sealable. In view of the nature of the disclosures in the patent in suit, it is proper also to consider whether developments in the prior art of bonded fabrics constitute an anticipation of the claimed invention. The use of thermoplastic fibers in conjunction with non-thermoplastic fibers in producing an adhesively bonded material was not new (Italian patent No. 364,516 to Francis; patent No. 1,903,960 to Dreyfus; patent No. 2,011,914 to Schwartz; patent No. 1,829,585 to Dreyfus and Miles). Nor was there novelty in making a laminated product (Dreyfus and Miles, supra), or one in which webs from three or more carding machines were combined by a binder, as in patent No. 810,935 to Goldman, though here the binder was in powder form. Apparently, however, prior to the date of conception of the claimed invention in suit (late 1938 or early 1939), or to the date of its reduction to practice (August, 1939), there had been issued no patent disclosing the particular type of fabric described in the patent in suit; that is, an unwoven material, produced on textile machinery, formed by laminating webs of mixed thermoplastic and non-thermoplastic fibers by heat and pressure; nor had any similar material been devised which was suitable for a tea bag. We do not think that patent No. 1,829,585 to Dreyfus and Miles or patent No. 1,903,960 to Dreyfus constituted a sufficient anticipation in this respect; the former involves a paper-type fabric and the latter apparently a woven fabric, and both are concerned with producing a waterproof material rather than a water-pervious material. But we think that the textile fabric patent No. 2,277,049, issued to Kendall as assignee of Reed, may be cited against the patent in suit. As above stated, this patent goes back to an application filed by Reed alone on July 5, 1935 (Serial No. 30,022), which application was later supplanted by Reed’s application of November 6, 1939. The situation here presented is not that of copending applications by the same inventor, with the earlier application cited as prior art against the later one. See National Electric Ticket Register Co. v. Automatic Ticket Register Corp., 2 Cir., 1926, 15 F.2d 257; Barber-Colman Co. v. Withnell, 1 Cir., 1927, 20 F.2d 373, 376; and In re Barton, 1929, 58 App.D.C. 373, 30 F.2d 997. These cases have been criticized (Stringham, Double Patenting § 2804B (1933)), but we need not examine into their correctness now. Reed alone is a different inventor from Reed and Ryan jointly. Dwight & Lloyd Sintering Co., Inc., v. Greenawalt, 2 Cir., 1928, 27 F.2d 823, 830; Denaro v. Maryland Baking Co., D.C., Md., 1930, 40 F.2d 513, 516, affirmed on opinion below 4 Cir., 1931, 50 F.2d 1074. Reed alone being the original and first inventor of the invention disclosed by his application Serial No. 30,022, supplanted later by his application of November 6, 1939, the disclosure by Reed and Ryan jointly, in their application for the patent in suit, cannot be held to be a patentable invention if the earlier invention by Reed alone was such an encroachment upon the field that what it left was too little by way of creative advance to support a patent. Alexander Milburn Co. v. Davis-Bournonville Co., 1926, 270 U.S. 390, 46 S.Ct. 324, 70 L.Ed. 651; Western States Machine Co. v. S. S. Hepworth Co., 2 Cir., 1945, 147 F.2d 345. Whether the copending application in such a case should technically be described as “prior art” is quite unimportant. See the illuminating discussion by Learned Hand, J., in Western States Machine Co. v. S. S. Hep-worth Co., supra, 147 F.2d at pages 348-349. See also Detrola Radio & Television Corp. v. Hazeltine Corp., 1941, 313 U.S. 259, 265, 61 S.Ct. 948, 85 L.Ed. 1319. Reed’s patent No. 2,277,049 discloses a textile method of making the Webril fabric with thermoplastic fibers, and the combining of two or more webs by running them through a heated calender. It also discloses that the proportions of the two types of fibers may be varied according to the particular qualities desired, such as “pliability, drape, firmness, porosity, and the like,” and that the proportion of thermoplastic fibers may be increased from that shown in the specific illustration given (about 4 per cent) to any greater amount, desired. The advances disclosed in the patent in suit over the disclosures in No. 2,277,049 would seem to be three only: (1) Using the unwoven bonded fabric in the-manufacture of an infuser; (2) including sufficient thermoplastic fibers to make the material heat-sealable (30-40 per cent), and (3) employing three webs, one of which contains a far greater proportion of thermoplastic fibers, thus making the material more convenient for the heat-sealing operation. As to (1) above: There was clearly no invention in the conception of making an, infuser out of the fabric covered by patent No. 2,277,049. The Webril material was. designed as a substitute for woven materials, and gauze had been used in the prior-art as a common fabric for the manufacture of tea bags. Patent No. 2,277,049 discloses that the fabric described could be made more or less porous by varying the proportions of the two types of fibers and. the amount of heat and pressure applied. Since claims 1 and 3 of the patent in suit. revealed only the use of such fabric in the manufacture of an infuser, without requiring that the infuser be heat-sealed, or even that the material contain ■ sufficient thermoplastic fibers to render it heat-sealable, those claims are certainly invalid as lacking invention over the prior art. • As to (2) above, we do not think there is invention in the disclosure of including sufficient thermoplastic fibers to make the fabric heat-sealable. Claims 2 and 5 of the patent in suit describe an infuser which is heat-sealed, or the fabric of which is inherently heat-sealable because of the incorporation into the material of thermoplastic fibers. (Claim 12 also covers a heat-sealed infuser, but claim 4, which it incorporates by reference, does not require that the binder be in fiber form; thus claim 12 in its literal breadth is invalid as lacking invention over the prior art, as above indicated.) The characteristics of thermoplastic fibers were well known, e. g., patent No. 1,829,585 to Dreyfus and Miles; patent No. 1,903,960 to Dreyfus; and Reed’s patent No. 2,277,049. Nor was there novelty in the idea of making a heat-sealed infuser, e. g., Salfisberg, supra; Webber, supra; patent No. 2,306,399 to Menzel. However, the disclosures in these patents taught the imparting of the quality of heat-sealability to the material by the use of a thermoplastic liquid coating or thermoplastic powder. It is apparently true that until the patent in suit, no one had conceived the idea of making the material for an infuser heat-sealable by incorporating thermoplastic fibers into the material. It is true also that Reed’s patent No. 2,277,049 did not disclose the proportion .of thermoplastic fibers necessary to make the Webril material heat-sealing, nor did it state that it was possible to make a fabric containing sufficient thermoplastic fibers for that purpose and yet being sufficiently porous for use as an infuser. But if a tea bag manufacturer, after reading the No. 2,277,049 patent, had conceived the idea of using thermoplastic fibers to produce a heat-sealable tea bag, and had manufactured such .an unwoven material on textile machinery (to which such patent is limited), he would clearly have infringed that patent. If the added concept of using a sufficient proportion of thermoplastic fibers in the manufacture of material for a heat-sealable infuser would not be sufficient to save the material from infringing patent No. 2,277,049, provided the material were made by the textile method, we do not see how there could be invention in a patent — such as the one in suit — which discloses only the textile method of making the material, but claims broadly the conception of using thermoplastic fibers to produce heat-sealed tea bags, regardless of how the material is made. Claims 2 and 5, as well as claim 12 for the reason above stated, are therefore invalid for lack of invention. As to (3) above, the patent cannot be sustained on the concept, without more, of employing a higher concentration of thermoplastic fibers on one surface rather than on the other in order to facilitate the heat-sealing operation. Claim 14 of the patent in suit is the only one which mentions this feature, though the claim is not in terms limited to heat-sealed infusers. Previous disclosures in the art of making heat-sealed infusers had naturally involved the concentration of the thermoplastic material on one surface and not the other. See Web-ber, supra; Menzel, supra, this being a copending application filed prior to the application for the patent in suit. Once it was recognized that it was desirable for the material to be heat-sealed in the making of the infuser, the facilitation of the heat-sealing operation by having one surface heat-sealable and the other not would seem to have been an obvious detail to one skilled in the art. Claim 14 is also invalid for lack of invention. Furthermore, we think that Reed’s patent No. 2,202,025, above mentioned, also may properly be cited against the patent in suit. This patent was applied for by Reed as sole inventor on December 2, 1935, and was issued to Kendall as assignee of Reed on May 28, 1940, which was prior to the filing of the application for the patent now in suit. While No. 2,202,025 covered only a material to be used as a collar interliner, it does make a disclosure very similar to that of Reed’s 2,277,049 patent and the patent in suit, as to the production of an unwoven, thermoplastically bonded fabric, and in addition it discloses that the fabric is porous and can 'be made to adhere to the broadcloth or other collar fabric by the application of heat and pressure. The judgment of the District Court is affirmed. . In the view we have taken of the case, it is not necessary to consider in detail the Dexter material, the use of which in the manufacture of a heat-sealed tea hag is alleged to constitute infringement of the patent in suit. Dexter’s heat seal paper is not made with textile machinery, and admittedly does not infringe Reed’s patent No. 2,277,049 on the Wehril fabrie. Dexter’s paper consists of fibers all of paper making length, bonded together by ordinary paper makers bond and a wet strengthening agent (melamine resin), a sufficient proportion of thermoplastic vinyon fibers being included in the mixture to impart to the material the heat-sealing characteristic. Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case? A. agriculture B. mining C. construction D. manufacturing E. transportation F. trade G. financial institution H. utilities I. other J. unclear Answer:
sc_caseoriginstate
25
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state of the court in which the case originated. Consider the District of Columbia as a state. BENTON v. MARYLAND. No. 201. Argued December 12, 1968 Reargued March 24, 1969.— Decided June 23, 1969. M. Michael Cramer argued the cause for petitioner on the original argument and on the reargument. With him on the briefs were H. Thomas Sisk, Laurence Levitan, and Paul H. Weinstein. Francis B. Burch, Attorney General of Maryland, argued the cause for respondent on the reargument. With him on the briefs was Edward F. Borgerding, First Assistant Attorney General. Mr. Borgerding argued the cause for respondent on the original argument. With him on the brief was Mr. Burch. Peter L. Strauss argued the cause for the United States on the reargument as amicus curiae. With him on the brief were Solicitor General Griswold, Assistant Attorney General Wilson, Beatrice Rosenberg, and Ronald L. Gainer. Me. Justice Marshall delivered the opinion of the Court. In August 1965, petitioner was tried in a Maryland state court on charges of burglary and larceny. The jury found petitioner not guilty of larceny but convicted him on the burglary count. He was sentenced to 10 years in prison. Shortly after his notice of appeal was filed in the Maryland Court of Appeals, that court handed down its decision in the case of Schowgurow v. State, 240 Md. 121, 213 A. 2d 475 (1965). In Schowgurow the Maryland Court of Appeals struck down a section of the state constitution which required jurors to swear their belief in the existence of God. As a result of this decision, petitioner’s case was remanded to the trial court. Because both the grand and petit juries in petitioner’s case had been selected under the invalid constitutional provision, petitioner was given the option of demanding re-indictment and retrial. He chose to have his conviction set aside, and a new indictment and new trial followed. At this second trial, petitioner was again charged with both larceny and burglary. Petitioner objected to retrial on the larceny count, arguing that because the first jury had found him not guilty of larceny, retrial would violate the constitutional prohibition against subjecting persons to double jeopardy for the same offense. The trial judge denied petitioner’s motion to dismiss the larceny charge, and petitioner was tried for both larceny and burglary. This time the jury found petitioner guilty of both offenses, and the judge sentenced him to 15 years on the burglary count and 5 years for larceny, the sentences to run concurrently. On appeal to the newly created Maryland Court of Special Appeals, petitioner’s double jeopardy claim was rejected on the merits. 1 Md. App. 647, 232 A. 2d. 541 (1967). The Court of Appeals denied discretionary review. On the last day of last Term, we granted certiorari, 392 U. S. 925 (1968), but limited the writ to the consideration of two issues: After oral argument, it became clear that the existence of a concurrent sentence on the burglary count might prevent the Court from reaching the double jeopardy issue, at least if we found that any error affected only petitioner’s larceny conviction. Therefore, we scheduled the case for reargument, 393 U. S. 994 (1968), limited to the following additional question not included in the original writ: “(1) Is the double jeopardy clause of the Fifth Amendment applicable to the States through the Fourteenth Amendment? “(2) If so, was the petitioner ‘twice put in jeopardy’ in this case?” “Does the ‘concurrent sentence doctrine,’ enunciated in Hirabayashi v. United States, 320 U. S. 81, 105, and subsequent cases, have continuing validity in light of such decisions as Ginsberg v. New York, 390 U. S. 629, 633, n. 2, Peyton v. Rowe, 391 U. S. 54, Carafas v. LaVallee, 391 U. S. 234, 237-238, and Sibron v. New York, 392 U. S. 40, 50-58?” The Solicitor General was invited to file a brief expressing the views of the United States and to participate in oral argument. After consideration of all the questions before us, we find no bar to our decision of the double jeopardy issue. On the merits, we hold that the Double Jeopardy Clause of the Fifth Amendment is applicable to the States through the Fourteenth Amendment, and we reverse petitioner’s conviction for larceny. I. At the outset of this case we are confronted with a jurisdictional problem. If the error specified in the original writ of certiorari were found to affect only petitioner’s larceny conviction, reversal of that conviction would not require the State to change the terms of petitioner’s confinement. Whatever the status of his sentence on the larceny conviction, petitioner would probably stay in prison until he had served out his sentence for burglary. Is there, in these circumstances, a live “case” or “controversy” suitable for resolution by this Court, or is the issue moot? Is petitioner asking for an advisory opinion on an abstract or hypothetical question? The answer to these questions is crucial, for it is well settled that federal courts may act only in the context of a justiciable case or controversy. Muskrat v. United States, 219 U. S. 346 (1911); see Flast v. Cohen, 392 U. S. 83, 94-97 (1968). The language used in a number of this Court’s opinions might be read to indicate that the existence of a valid concurrent sentence removes the necessary elements of a justiciable controversy. The “concurrent sentence doctrine” took root in this country quite early, although its earliest manifestations occurred in slightly different contexts. In Locke v. United States, 7 Cranch 339 (1813), a cargo belonging to the plaintiff in error had been condemned under a libel containing 11 counts. Chief Justice John Marshall, speaking for the Court, found it unnecessary to consider Locke’s challenges to all 11 counts. He declared, simply enough, “The Court however, is of opinion, that the 4th count is good, and this renders it unnecessary to decide on the others.” Id., at 344. Similar reasoning was later applied in a case where a single general sentence rested on convictions under several counts of an indictment. Drawing upon some English cases and some dicta from Lord Mansfield, the Court in Claassen v. United States, 142 U. S. 140, 146 (1891), held that if the defendant had validly been convicted on any one count “the other counts need not be considered.” The most widely cited application of this approach to cases where concurrent sentences, rather than a single general sentence, have been imposed is Hirabayashi v. United States, 320 U. S. 81 (1943). In that case the defendant had been found guilty of two different offenses and had received concurrent three-month sentences. He challenged the constitutionality of both convictions, but this Court affirmed the lower court’s judgment after considering and rejecting only one of his challenges. Since the conviction on the second count was valid, the Court found it “unnecessary” to consider the challenge to the first count. Id., at 85, 105. The concurrent sentence doctrine has been widely, if somewhat haphazardly, applied in this Court’s decisions. At times the Court has seemed to say that the doctrine raises a jurisdictional bar to the consideration of counts under concurrent sentences. Some opinions have baldly declared that judgments of conviction “must be upheld” if any one count was good. Barenblatt v. United States, 360 U. S. 109, 115 (1959); see United States v. Gainey, 380 U. S. 63, 65 (1965). In other cases the Court has chosen somewhat weaker language, indicating only that a judgment “may be affirmed if the conviction on either count is valid.” Roviaro v. United States, 353 U. S. 53, 59, n. 6 (1957). And on at least one occasion, the Court has ignored the rule entirely and decided an issue that affected only one count, even though there were concurrent sentences. Putnam v. United States, 162 U. S. 687 (1896). One can search through these cases, and related ones, without finding any satisfactory explanation for the concurrent sentence doctrine. See United States v. Hines, 256 F. 2d 561, 562-563 (C. A. 2d Cir. 1958). But whatever the underlying justifications for the doctrine, it seems clear to us that it cannot be taken to state a jurisdictional rule. See Yates v. United States, 355 U. S. 66, 75-76 (1957); Putnam v. United States, supra. Moreover, whatever may have been the approach in the past, our recent decisions on the question of mootness in criminal cases make it perfectly clear that the existence of concurrent sentences does not remove the elements necessary to create a justiciable case or controversy. In Sibron v. New York, 392 U. S. 40 (1968), we held that a criminal case did not become moot upon the expiration of the sentence imposed. We noted “the obvious fact of life that most criminal convictions do in fact entail adverse collateral legal consequences.” Id., at 55. We concluded that the mere possibility of such collateral consequences was enough to give the case the “impact of actuality” which was necessary to make it a justiciable case or controversy. Sibron and a number of other recent cases have canvassed the possible adverse collateral effects of criminal convictions, and we need not repeat that analysis here. It is enough to say that there are such possibilities in this case. For example, there are a few States which consider all prior felony convictions for the purpose of enhancing sentence under habitual criminal statutes, even if the convictions actually constituted only separate counts in a single indictment tried on the same day. Petitioner might some day in one of these States have both his larceny and burglary convictions counted against him. Although this possibility may well be a remote one, it is enough to give this case an adversary cast and make it justiciable. Moreover, as in Sibron, both of petitioner’s convictions might some day be used to impeach his character if put in issue at a future trial. Although petitioner could explain that both convictions arose out of the same transaction, a jury might not be able to appreciate this subtlety. We cannot, therefore, say that this Court lacks jurisdiction to decide petitioner’s challenge to his larceny conviction. It may be that in certain circumstances a federal appellate court, as a matter of discretion, might decide (as in Hirabayashi) that it is “unnecessary” to consider all the allegations made by a particular party. The concurrent sentence rule may have some continuing validity as a rule of judicial convenience. That is not a subject we must canvass today, however. It is sufficient for present purposes to hold that there is no jurisdictional bar to consideration of challenges to multiple convictions, even though concurrent sentences were imposed. II. While Maryland apparently agrees that there is no jurisdictional bar to consideration of petitioner’s larceny conviction, it argues that the possibility of collateral consequences is so remote in this case that any double jeopardy violation should be treated as a species of “harmless error.” The Solicitor General, while not commenting at length on the facts of this particular case, suggests that we treat the concurrent sentence doctrine as a principle of judicial efficiency which permits judges to avoid decision of issues which have no appreciable impact on the rights of any party. Both Maryland and the Solicitor General argue that the defendant should bear the burden of convincing the appellate court of the need to review all his concurrent sentences. Petitioner, on the other hand, sees in Sibron a command that federal appellate courts treat all errors which may possibly affect a defendant’s rights, and he argues that the concurrent sentence rule therefore has no continuing validity, even as a rule of convenience. Because of the special circumstances in this case, we find it unnecessary to resolve this dispute. For even if the concurrent sentence doctrine survives as a rule of judicial convenience, we find good reason not to apply it here. On direct appeal from petitioner’s conviction, the Maryland Court of Special Appeals did in fact rule on his double jeopardy challenge to the larceny count. 1 Md. App., at 650-651, 232 A. 2d, at 542-543. It is unclear whether Maryland courts always consider all challenges raised on direct appeal, notwithstanding the existence of concurrent sentences, but at least in this case the State decided not to apply the concurrent sentence rule. This may well indicate that the State has some interest in keeping the larceny conviction alive; if, as Maryland argues here, the larceny conviction is of no importance to either party, one wonders why the state courts found it necessary to pass on it. Since the future importance of the conviction may well turn on issues of state law about which we are not well informed, we propose, on direct appeal from the Maryland courts, to accept their judgment on this question. Since they decided this federal constitutional question, we see no reason why we should not do so as well. Moreover, the status of petitioner’s burglary conviction and the eventual length of his sentence are both still in some doubt. Should any attack on the burglary conviction be successful, or should the length of the burglary sentence be reduced to less than five years, petitioner would then clearly have a right to have his larceny conviction reviewed. As we said in Sibron v. New York, supra, at 56-57, it is certainly preferable to have that review now on direct appeal, rather than later. For these reasons, and because there is no jurisdictional bar, we find it appropriate to reach the questions specified in our original writ of certiorari. III. In 1937, this Court decided the landmark case of Palko v. Connecticut, 302 U. S. 319. Palko, although indicted for first-degree murder, had been convicted of murder in the second degree after a jury trial in a Connecticut state court. The State appealed and won a new trial. Palko argued that the Fourteenth Amendment incorporated, as against the States, the Fifth Amendment requirement that no person “be subject for the same offence to be twice put in jeopardy of life or limb.” The Court disagreed. Federal double jeopardy standards were not applicable against the States. Only when a kind of jeopardy subjected a defendant to “a hardship so acute and shocking that our polity will not endure it,” id., at 328, did the Fourteenth Amendment apply. The order for a new trial was affirmed. In subsequent appeals from state courts, the Court continued to apply this lesser Palko standard. See, e. g., Brock v. North Carolina, 344 U. S. 424 (1953). Recently, however, this Court has “increasingly looked to the specific guarantees of the [Bill of Rights] to determine whether a state criminal trial was conducted with due process of law.” Washington v. Texas, 388 U. S. 14, 18 (1967). In an increasing number of cases, the Court “has rejected the notion that the Fourteenth Amendment applies to the States only a ‘watered-down, subjective version of the individual guarantees of the Bill of Rights ....’” Malloy v. Hogan, 378 U. S. 1, 10-11 (1964) , Only last Term we found that the right to trial by jury in criminal cases was “fundamental to the American scheme of justice,” Duncan v. Louisiana, 391 U. S. 145, 149 (1968), and held that the Sixth Amendment right to a jury trial was applicable to the States through the Fourteenth Amendment. For the same reasons, we today find that the double jeopardy prohibition of the Fifth Amendment represents a fundamental ideal in our constitutional heritage, and that it should apply to the States through the Fourteenth Amendment. Insofar as it is inconsistent with this holding, Palko v. Connecticut is overruled. Palko represented an approach to basic constitutional rights which this Court’s recent decisions have rejected. It was cut of the same cloth as Betts v. Brady, 316 IT. S. 455 (1942), the case which held that a criminal defendant’s right to counsel was to be determined by deciding in each case whether the denial of that right was “shocking to the universal sense of justice.” Id., at 462. It relied upon Twining v. New Jersey, 211 U. S. 78 (1908), which held that the right against compulsory self-incrimination was not an element of Fourteenth Amendment due process. Betts was overruled by Gideon v. Wainwright, 372 U. S. 335 (1963); Twining, by Malloy v. Hogan, 378 U. S. 1 (1964). Our recent cases have thoroughly rejected the Palko notion that basic constitutional rights can be denied by the States as long as the totality of the circumstances does not disclose a denial of “fundamental fairness.” Once it is decided that a particular Bill of Rights guarantee is “fundamental to the American scheme of justice,” Duncan v. Louisiana, supra, at 149, the same constitutional standards apply against both the State and Federal Governments. Palko’s roots had thus been cut away years ago. We today only recognize the inevitable. The fundamental nature of the guarantee against double jeopardy can hardly be doubted. Its origins can be traced to Greek and Roman times, and it became established in the common law of England long before this Nation’s independence. See Bartkus v. Illinois, 359 U. S. 121, 151-155 (1959) (Black, J., dissenting). As with many other elements of the common law, it was carried into the jurisprudence of this Country through the medium of Blackstone, who codified the doctrine in his Commentaries. “[T]he plea of autrefoits acquit, or a former acquittal,” he wrote, “is grounded on this universal maxim of the common law of England, that no man is to be brought into jeopardy of his life more than once for the same offence.” Today, every State incorporates some form of the prohibition in its constitution or common law. As this Court put it in Green v. United States, 355 U. S. 184, 187-188 (1957), “[t]he underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.” This underlying notion has from the very beginning been part of our constitutional tradition. Like the right to trial by jury, it is clearly “fundamental to the American scheme of justice.” The validity of petitioner’s larceny conviction must be judged, not by the watered-down standard enunciated in Palko, but under this Court’s interpretations of the Fifth Amendment double jeopardy provision. IV. It is clear that petitioner’s larceny conviction cannot stand once federal double jeopardy standards are applied. Petitioner was acquitted of larceny in his first trial. Because he decided to appeal his burglary conviction, he is forced to suffer retrial on the larceny count as well. As this Court held in Green v. United States, supra, at 193— 194, “[conditioning an appeal of one offense on a coerced surrender of a valid plea of former jeopardy on another offense exacts a forfeiture in plain conflict with the constitutional bar against double jeopardy.” Maryland argues that Green does not apply to this case because petitioner’s original indictment was absolutely void. One cannot be placed in “jeopardy” by a void indictment, the State argues. This argument sounds a bit strange, however, since petitioner could quietly have served out his sentence under this “void” indictment had he not appealed his burglary conviction. Only by accepting the option of a new trial could the indictment be set aside; at worst the indictment would seem only voidable at the defendant’s option, not absolutely void. In any case, this argument was answered here over 70 years ago in United States v. Ball, 163 U. S. 662 (1896). In that case Millard Fillmore Ball was indicted, together with two other men, for the murder of one William T. Box in the Indian Territory. He was acquitted and his codefendants were convicted. They appealed and won a reversal on the ground that the indictment erroneously failed to aver the time or place of Box’s death. All three defendants were retried, and this time Ball was convicted. This Court sustained his double jeopardy claim, notwithstanding the technical invalidity of the indictment upon which he was first tried. The Court refused to allow the Government to allege its own error to deprive the defendant of the benefit of an acquittal by a jury. Id., at 667-668. “ [A] lthough the indictment was fatally defective, yet, if the court had jurisdiction of the cause and of the party, its judgment is not void, but only voidable by writ of error . . . ,” and the Government could not have the acquittal set aside over the defendant’s objections. Id., at 669-670. This case is totally indistinguishable. Petitioner was acquitted of larceny. He has, under Green, a valid double jeopardy plea which he cannot be forced to waive. Yet Maryland wants the earlier acquittal set aside, over petitioner’s objections, because of a defect in the indictment. This it cannot do. Petitioner’s larceny conviction cannot stand. Y. Petitioner argues that his burglary conviction should be set aside as well. He contends that some evidence, inadmissible under state law in a trial for burglary alone, was introduced in the joint trial for both burglary and larceny, and that the jury was prejudiced by this evidence. This question was not decided by the Maryland Court of Special Appeals because it found no double jeopardy violation at all. It is not obvious on the face of the record that the burglary conviction was affected by the double jeopardy violation. To determine whether there is in fact any such evidentiary error, we would have to explore the Maryland law of evidence and the Maryland definitions of larceny and burglary, and then examine the record in detail. We do not think that this is the kind of determination we should make unaided by prior consideration by the state courts. Accordingly, we think it “just under the circumstances,” 28 U. S. C. § 2106, to vacate the judgment below and remand for consideration of this question. The judgment is vacated and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. The increase in petitioner’s sentence on the burglary count from 10 to 15 years is presently the subject of litigation on federal habeas corpus in the lower federal courts. A federal district court ordered the State to resentence petitioner, Benton v. Copinger, 291 F. Supp. 141 (D. C. Md. 1968), and an appeal brought by the State is presently pending in the United States Court of Appeals for the Fourth Circuit. See Part V, infra. Of course, if the error infected both counts upon which petitioner was convicted, there would be no concurrent sentence problem at all. We do not, however, resolve the question of whether the burglary conviction was “tainted.” The length of that sentence is presently a matter in dispute, see n. 1, supra. Grant v. Astle, 2 Doug. 722, 99 Eng. Rep. 459 (1781); Peake v. Oldham, 1 Cowp. 275, 98 Eng. Rep. 1083 (1775); Rex v. Benfield, 2 Burr. 980, 97 Eng. Rep. 664 (1760). Street v. New York, 394 U. S. 576, 579-580, n. 3 (1969); Carafas v. LaVallee, 391 U. S. 234, 237-238 (1968); Ginsberg v. New York, 390 U. S. 629, 633-634, n. 2 (1968). The majority rule is, apparently, that all convictions handed down at the same time count as a single conviction for the purpose of habitual offender statutes, but a few States follow the stricter rule described in the text. The relevant cases are collected at 24 A. L. R. 2d 1262-1267 (1952), and in the accompanying supplements. In Sibron we noted the inadequacies of a procedure which postpones appellate review until it is proposed to subject the convicted person to collateral consequences. 392 U. S., at 56-57. For the reasons there stated, an attempt to impose collateral consequences after an initial refusal to review a conviction on direct appeal because of the concurrent sentence doctrine may well raise some constitutional problems. That issue is not, however, presented by this case, and accordingly we express no opinion on it. Compare Meade v. State, 198 Md. 489, 84 A. 2d 892 (1951), with Marks v. State, 230 Md. 108, 185 A. 2d 909 (1962). See n. 7, supra. See n. 1, supra, and Part V, infra. A stronger ease for total abolition of the concurrent sentence doctrine may well be made in cases on direct appeal, as compared to convictions attacked collaterally by suits for post-conviction relief. Because of our disposition of this case, we need not reach this question. Quoting from Ohio ex rel. Eaton v. Price, 364 U. S. 263, 275 (1960) (opinion of BrennaN, J.). A list of those Bill of Rights guarantees which have been held “incorporated” in the Fourteenth Amendment can be found in Duncan, supra, at 148. J. Sigler, Double Jeopardy 1-37 (1969). 4 W. Blackstone, Commentaries *335. Sigler, supra, n. 14, at 78-79; Brock v. North Carolina, 344 U. S. 424, 435, n. 6 (1953) (Vinson, C. J., dissenting). There is no danger here that the jury might have been tempted to compromise on a lesser charge because of an erroneous retrial on a greater charge. See United States ex rel. Hetenyi v. Wilkins, 348 F. 2d 844, 866 (C. A. 2d Cir. 1965), cert. denied, sub nom. Mancusi v. Hetenyi, 383 U. S. 913 (1966). Larceny is a lesser offense than burglary. See Note, Individualized Criminal Justice in the Supreme Court: A Study of Dispositional Decision Making, 81 Harv. L. Rev. 1260, 1272-1273 (1968). Question: What is the state of the court in which the case originated? 01. Alabama 02. Alaska 03. American Samoa 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. District of Columbia 11. Federated States of Micronesia 12. Florida 13. Georgia 14. Guam 15. Hawaii 16. Idaho 17. Illinois 18. Indiana 19. Iowa 20. Kansas 21. Kentucky 22. Louisiana 23. Maine 24. Marshall Islands 25. Maryland 26. Massachusetts 27. Michigan 28. Minnesota 29. Mississippi 30. Missouri 31. Montana 32. Nebraska 33. Nevada 34. New Hampshire 35. New Jersey 36. New Mexico 37. New York 38. North Carolina 39. North Dakota 40. Northern Mariana Islands 41. Ohio 42. Oklahoma 43. Oregon 44. Palau 45. Pennsylvania 46. Puerto Rico 47. Rhode Island 48. South Carolina 49. South Dakota 50. Tennessee 51. Texas 52. Utah 53. Vermont 54. Virgin Islands 55. Virginia 56. Washington 57. West Virginia 58. Wisconsin 59. Wyoming 60. United States 61. Interstate Compact 62. Philippines 63. Indian 64. Dakota Answer:
songer_circuit
H
What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case. Theresa HICKLIN, Appellant, v. Robert EDWARDS, Appellee. No. 15315. United States Court of Appeals Eighth Circuit. Oct. 28, 1955. See also, 8 Cir., 222 F.2d 921. Donald L. Randolph, Kansas City, Mo., for appellant. David H. Clark and Lane D. Bauer, Kansas City, Mo. (Sebree, Shook, Hardy & Ottman, Kansas City, Mo., on the brief), for appellee. Before WOODROUGH, JOHNSEN and VOGEL, Circuit Judges. WOODROUGH, Circuit Judge. This appeal is taken by Theresa Hick-lin to reverse a judgment which denied a motion filed by her to set aside a default judgment for some $1,300 and costs rendered against her in the action in which her motion was filed. She stated in the motion that she was never served with summons in the action either personally or by substituted service according to the statute and that the judgment and a garnishment proceeding had thereunder were void and she had a meritorious defense. After a hearing had on the motion, the trial court rendered its decision and order (which does not appear to have been reported) as follows: “Plaintiff instituted this suit to recover damages for rent in excess of the maximum ceiling rent on premises owned by the defendant and occupied by the plaintiff. The Marshal’s return recites that personal service was had upon the defendant, being in words and figures as follows: ■ “ T hereby certify and return, that on the 25th day of August, 1953, I received this summons and served it together with the complaint herein as follows: on the 27th day of August by delivering a copy of the within summons with a copy of complaint attached thereto, to the within named Theresa Hick-lin, at 213 Independence Avenue, Kansas City, Western District of Missouri.’ “Thereafter a default judgment for treble damages was rendered against the defendant in an amount in excess of $1,300. More than one year after the default judgment was entered, an execution was requested by the plaintiff and issued by the clerk of the court, and the bank account of defendant attached in the hands of a bank, as garnishee. “Thereafter the defendant filed motion to set aside the default on the ground that she had had no notice of the filing of such suit or the entry of the judgment; that the summons was not served upon the defendant nor any person for her, within the meaning of the statute. “Defendant supported her motion by an affidavit signed by her sister [in-law] stating that she was at the address which was described in the return as the home of the defendant; that she was not a resident of such home; that the marshal served the complaint and summons upon her, and that she delivered it-to the husband of the defendant, from whom the defendant was at that time estranged, and that she never received such summons or any knowledge thereof from her husband. “It is the general rule of Federal law that the question here involved is to be determined in accordance with Federal law, but it appears that there is no Federal law on the subject in this circuit that we have been able to find. There is a division of opinion among the Federal Courts as to whether or not such return is binding upon the defendant. In Woods v. Zellers, 9 F.R.D. 6, a District Court in Pennsylvania followed the State law and held that such a return was binding; other decisions have held that it is only prima facie and may be collaterally attacked. It affects the very validity of all judgments. “It is admittedly the law in Missouri that the return of the serving officer may not be collaterally attacked, and that those who are damaged by it, must resort to an action against the serving officer for false return In the absence of any Federal- authority, the law of the state is very persuasive and in the interest of uniformity should be followed. It is therefore my conclusion that the return of the serving officer is conclusive as to facts stated in the return and may not' be collaterally attacked. “The ‘Motion to Set Aside Judgment and Proceedings’ is therefore hereby overruled.” It is contended for Mrs. Hicklin on this appeal that the default judgment rendered against her without summons served upon her and without any notice or knowledge on her part of the pendency of the action was void and that the court erred in holding that the return of the serving officer was conclusive against her; that the court should have considered the showing presented in support of her motion and granted a hearing on the issue tendered by her motion as supported. Although we, as well as the trial court, have encountered a paucity of controlling Federal decisions directly upon the precise point of procedure that is here for decision, we are satisfied that the procedure in the Federal Courts for setting aside allegedly void judgments of those courts is not controlled, in the absence of express provision, by the procedure that may prevail in similar matters in the courts of the state where the Federal Court is functioning. The present uniform system of civil procedure in Federal Courts is governed by the Rules of Civil Procedure promulgated by the Supreme Court and adopted by the Congress. As stated in Williams v. Powers, 6 Cir., 135 F.2d 153, 156, “The power to prescribe the practice, pleadings, forms and modes of proceedings in the Courts of the United States is lodged in the Congress and this power cannot be abrogated or diminished by the states without the consent of the lawmaking power of the central government.” We hold that Rule 60(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A. is applicable and controlling here. The Rule provides that “On motion and upon such terms as are just, the court may relieve a party * * * from a final judgment * * * for the following reasons: * * * (4) the judgment is void; * * * the procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules or by an independent action.” The mandate the rule imposes on the court to relieve a party from a judgment “for the reason the judgment is void” is broad and unqualified and contains no restrictions in respect to any of the reasons that may be shown to render the judgment void. There is no room to graft an exception to the effect that if the reason for the invalidity of the judgment is a lack of service, the court is not bound by the mandate of the rule. The rule covers a judgment that is void for any reason including a lack of service. The motion filed by Mrs. Hicklin supported by the affidavits to the effect that she had had no summons served upon her and had no knowledge of the pendency of the action constituted a sufficient presentation to the court of her claim that the default judgment against her was void. As was stated by the Supreme Court nearly one hundred years ago in Nations v. Johnson, 24 How. 195, loc. cit. 203, 65 U.S. 195, loc. cit. 203, 16 L.Ed. 628, “No man shall be condemned in his person or property without notice and an opportunity to make his defense” * * * “Notice to the defendant is essential to the jurisdiction of all courts * * And “when a judgment is brought collaterally before the court, it may be shown to be void on its face for want of notice to the person against whom it is entered.” Cited in Earle v. McVeigh, 91 U.S. 503, 23 L.Ed. 398. In Webster v. Reid, 11 How. 437, loc. cit. 459, 52 U.S. 437, loe. cit. 459, 13 L.Ed. 761, the Supreme Court said, “No person is required to answer in a suit on whom process has not been served or whose property has not been attached. In this case there was no personal notice * * *. The judgments therefore are nullities * * In Walden v. Craig’s Heirs, 14 Pet. 147, loc. cit. 154, 39 U.S. 147, loc. cit. 154, 10 L.Ed. 393, the Supreme Court said: “Service of process or notice is necessary to enable a court to exercise jurisdiction in a case; and if jurisdiction is taken in a case in which there has been no process or notice, the proceeding is a nullity. It is not only voidable but it is absolutely void.” We recognize that under Rule 4(d) (7), F.R.C.P., 28 U.S.C.A., service of summons upon an individual like Mrs. Hicklin may be made “in the manner prescribed by the law of the state in which the service is made”, but the question here involved is as to the fact of personal service upon defendant and not as to the manner of service and Rule 4(d) (7) is not relevant. It is argued that the judgment appealed from should be sustained because Mrs. Hicklin failed to show that she had a meritorious defense, but aside from the fact that she stated in her motion that she had such a defense, it is settled that “no showing of merits is necessary in support of a motion to vacate a void judgment.” Wise v. Herzog, 72 App.D.C. 335, 114 F.2d 486, 492; Schwarz v. Thomas, D.C.Cir., 222 F.2d 305. We are of opinion that if Mrs. Hicklin can sustain the claim she has presented by strong and convincing evidence that the default judgment against her is void on the ground asserted, section 60(b) requires the court to accord her relief from it. It is contended that such ruling opens the way to promiscuous and fraudulent invalidations of judgments but we do not think so. The rule is settled that the officer’s return upon the summons imports verity which can be overcome only by strong and convincing evidence. Cleaves v. Funk, 10 Cir., 76 F.2d 828. The rule affords appropriate protection to the validity of judgments. The judgment is reversed and the case remanded with direction to the District Court to grant a trial on the issue presented by Mrs. Hicklin of the validity of the judgment. . The affidavit of the sister-in-law reads as follows: “Helen G. Hicklin, affiant herein, being first duly sworn on her oath states that she is the sister of Claude Eugene Hick-lin; that the said Claude Eugene Hick-lin is the husband of Theresa Hicklin, the defendant in the above captioned case. Affiant states that about 8:00 in the morning of August 27, 1953, she was with her said brother, Claude Eugene Hicklin, in the home of defendant located at 213 Independence Avenue, Kansas City, Missouri. Affiant states that on the said 27th day of August, 1953, affiant was residing at 1603 Palmer, Kansas City, Missouri, and that she has never lived at said 213 Independence Avenue, Kansas City, Missouri. That about said 8:00 in the morning of August 27, 1953, her said brother, [Claude] Eugene Hicklin, called to affiant and asked her to see the person who was at the front door; that affiant, being in the living quarters at said address, opened the door leading to a store room in the front of the premises, walked through the store room to the front door where an officer was standing, who said ‘Miss Hicklin?’; that thereupon affiant answered ‘yes’ and received from the officer some papers; that the officer said no more but went away after handing the said papers to affiant; that the affiant looked at the papers and determined that they were directed to Theresa Hicklin, defendant herein; that affiant thereupon turned the said papers over to her said brother, Claude Eugene Hicklin. Affiant further states that on’ said 27th day of August, 1953, her said brother had been drinking and was intoxicated. Affi-ant further says that her brother and his wife, Theresa Hicklin, have been estranged for some time; that prior to the said 27th day of August, 1953, she was suing him for divorce. Affiant further states that after handing the said papers to her said brother she did not know and does not know what subsequently happened to the said papers. Affiant further says that she left Kansas City, Missouri, to live elsewhere and was out of town from July, 1954 until on or about December 1,1954, when she moved back to Kansas City, Missouri” . Smoot v. Judd, 184 Mo. 508, 83 S.W. 481; Stewart v. Stringer, 41 Mo. 400, 404, 97 Am.Dec. 278; Johnson v. Wilson Estate, Inc., Mo.App., 256 S.W.2d 297; Shannon v. Del-Home Light Co., Mo.App., 43 S.W. 2d 872; Deichmann v. Hogan, Mo.App., 26 S.W.2d 874; Barnett v. Barnett, Mo. App., 245 S.W. 579. . We do not find Mechanical Appliance Co. v. Castleman, 215 U.S. 437, 30 S.Ct. 125, 54 L.Ed. 272; Williams v. Capital Transit Co., D.C.Cir., 215 F.2d 487; Woods v. Zellers, D.C., 9 F.R.D. 6; Jones v. Jones, 7 Cir., 217 F.2d 239; Higham v. Iowa State Travelers’ Ass’n, C.C., 183 F. 845; Trimble v. Erie Electric Motor Co., C.C., 89 F. 51, or United States v. Gayle, D.C., 45 F. 107 (eases relied on) to be conclusive. 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_opinstat
B
What follows is an opinion from a United States Court of Appeals. Your task is to identify whether the opinion writter is identified in the opinion or whether the opinion was per curiam. Ralph D. LAMBERT and Margot Lambert, Ernest J. Henley and Barbara M. Henley, Martha Henley, Petitioners, v. COMMISSIONER OF INTERNAL REVENUE, Respondent. Nos. 79-81, Dockets 28983-28985. United States Court of Appeals Second Circuit. Argued Oct. 20, 1964. Decided Oct. 30, 1964. Raymond F. Garrity, Washington, D. C. (Garrity, Ferguson & Phillipps, Carl A. Phillipps, Washington, D. C., on brief), for petitioners. Edward B. Greensfelder, Jr., St. Louis, Mo. (Louis F. Oberdorfer, Asst. Atty. Gen., Lee A. Jackson and David O. Walter, Attys., Dept. of Justice, Washington, D. C.), for respondent. Edward Pesin, Newark, N. J., for S. Arthur Stern, filed a brief as amicus curiae. Before FRIENDLY, KAUFMAN and ANDERSON, Circuit Judges. PER CURIAM: We affirm the judgment of the Tax Court on the opinion of Judge Fay. Although the Commissioner might well have taken a more lenient view on the facts here presented, it is plain that the petitioners did not comply with requirements on which the Commissioner was entitled to insist. 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_certreason
J
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the reason, if any, given by the court for granting the petition for certiorari. MANUFACTURERS TRUST CO., TRUSTEE, v. BECKER et al. No. 55. Argued October 20, 1949. Decided November 21, 1949. Edward K. Hanlon argued the cause and filed a brief for petitioner. David W. Kahn argued the cause and filed a brief for respondents. Solicitor General Perlman, Roger S. Foster, David Ferber and W. Victor Rodin filed a brief for the Securities & Exchange Commission, as amicus curiae, urging reversal. Mr. Justice Clark delivered the opinion of the Court. This proceeding in bankruptcy is on objections to the allowance of claims equal to the principal amount of bonds of the debtor acquired at a discount during its insolvency by close relatives and an office associate of directors of debtor. Petitioner’s objection that equitable considerations require limitation of the claims was dismissed by the referee, and the District Court affirmed. 80 F. Supp. 822. Following affirmance by a divided Court of Appeals for the Second Circuit, 173 F. 2d 944, we granted certiorari because the issue presented has importance in the administration of the arrangement and corporate reorganization provisions of the Bankruptcy Act. 337 U. S. 923. On January 8, 1946, Calton Crescent, Inc., sold its only property, an apartment house located in New Rochelle, New York, for $300,000 pursuant to a contract entered into in October 1945. Being unable to discharge in full its obligations under debenture bonds maturing in 1953, outstanding in principal amount of $254,450, debtor filed in May 1946, a petition under Ch. XI of the Bankruptcy Act, 11 U. S. C. § 701 et seq. Under the plan of arrangement, authorizing a dividend of 43.61% of the principal amount of the bonds, respondents Regine Becker, Emily K. Becker, and Walter A. Fribourg were to receive an aggregate dividend of $64,237.53 on allowance of claims based on respective individual holdings of debentures which total $147,300 in principal sum but were acquired at a total cost of $10,195.43. Petitioner, Manufacturers Trust Company, appearing individually as creditor for fees and disbursements due it as indenture trustee and also as original trustee under said indenture, objected to allowance of respondents’ claims as filed, on the ground that the circumstances of respondents’ acquisitions require limitation of their claims to the cost of the debentures plus interest. The circumstances pertinent to our consideration of petitioner’s objections are as follows: The debtor was organized in 1933 to take title to the apartment property pursuant to a plan of reorganization. By January 1942 debtor had defaulted under the terms of the first mortgage and was operating with a deficit; at no time in the previous several years had its debentures been selling on the market at more than 8% of face value. While debtor was then considering a sale of the property for $220,000, a suit to enjoin the sale was brought by Sanford Becker, son of respondent Regine Becker and husband of respondent Emily Becker. Thereafter he proposed to arrange a loan on second mortgage to debtor of $15,000 to pay off the arrearages on the first mortgage, all share and debenture holders being invited to participate. In April 1942 debtor accepted the offer, but none of its share or debenture holders elected to participate other than respondent Fribourg, who had desk room in the offices of Sanford Becker and his brother Norman Becker and was a long-time friend of the former. The loan was made by respondents Regine Becker, Emily Becker, and Fribourg. The second mortgage thus created was in default by the end of 1942, and in 1943 respondents took an assignment of rents but did not foreclose; nor was there change in management of the property. The second mortgage and interest were paid upon sale of the property in 1946. In addition to the second mortgage, sums aggregating $7,921.63 were advanced by respondents to pay taxes; this amount was repaid without interest in 1944 and 1945. Pursuant to provisions of the loan agreement in 1942, Sanford and Norman Becker were made directors of debtor, and when the remaining three directors resigned in 1944, the vacancies were filled by nominees of the Becker brothers. The referee found that from early 1942 the market value of the property of debtor was insufficient to pay its debts. However, the record shows a tax valuation during the period of only slightly less than the outstanding indebtedness. And although the debtor’s operating account frequently ran in arrears, it revealed a surplus in 1945. Prior to disposing of its property debtor was at all times a going concern. The debentures on which respondents claim were acquired, at prices varying from 3% to 14% of face value, after the Becker brothers became directors in 1942. Sanford Becker did not buy additional debentures after becoming a director. Norman Becker never owned any interest whatever in the debtor. Although neither of the Becker directors was interested in any purchase of the respondents, the debentures of Regine and Emily Becker were purchased through the agency of the Becker brothers and in the latter’s judgment. The debentures of Regine Becker were purchased from an over-the-counter securities broker. Those of Emily Becker were acquired in part from the same dealer, in part from an estate whose attorneys were fully informed as to debtor’s financial affairs, and in part from a Christian Association represented by a member of its investment committee who was fully advised as to the condition of debtor. Some of Fribourg’s debentures were bought from dealers in the over-the-counter market; others were acquired through an agent from the president and vice president of debtor when they withdrew from its management in 1944, and from other holders after the retiring president insisted that the offer made to him by Fribourg’s agent be extended to all holders and be accompanied by a statement of the president’s intention to accept. Fribourg was in the market for speculative securities and purchased the debentures as a “gamble,” being influenced by the tax valuation of the apartment building. All of respondents’ debentures, with the exception of $2,000 in face value purchased by Fribourg from a dealer, were acquired in advance of the contract for sale of the apartment property and the filing of debtor’s petition for arrangement. It was the referee’s finding, left undisturbed by both courts below, that respondents’ purchases were without overreaching or failure to disclose any material fact to the selling bondholders. Petitioner does not here contend that respondents’ claims should be limited because of conduct by the Becker directors or by respondents amounting to bad faith or abuse of fiduciary advantage. Nor does petitioner contend that respondents’ bondholdings influenced the conduct of corporate affairs to the injury of the corporation or other creditors. Indeed, the referee found that the purchases were not unfair to debtor, that at the time of respondents’ purchases debtor was not in the field to settle its indebtedness on the debentures, and that the assistance rendered to debtor by respondents materially aided in its grave financial situation. Moreover, the findings indicate that the most generous suggestion of an offer for the apartment building after the Beckers became directors and prior to the sale was at a figure substantially less than the sale price. Petitioner urges broadly that directors are precluded from profiting by the purchase of claims against an insolvent corporation. And, it contends, if directors may claim only the cost of debt securities acquired at a discount during a debtor’s insolvency, those related as respondents are to the Becker directors should not be permitted to do more. Thus we view respondents’ claims initially as if they were claims of directors. This Court has repeatedly insisted on good faith and fair dealing on the part of corporate fiduciaries. It is especially clear, when claims in bankruptcy accrue to the benefit of a corporate officer or director, that the court must reject any claim that would not be fair and equitable to other creditors. Pepper v. Litton, 308 U. S. 295, 308-309 (1939). Claims of a corporate officer or director arising out of transactions with the corporation have been enforced when good faith and fairness were found. Sanford Fork & Tool Co. v. Howe, Brown & Co., 157 U. S. 312 (1895); cf. Manufacturing Co. v. Bradley, 105 U. S. 175 (1882); see Richardson’s Ex’r v. Green, 133 U. S. 30, 43 (1890); Twin-Lick Oil Co. v. Marbury, 91 U. S. 587, 589-591 (1876). Likewise a standard of good faith and fair dealing has been found applicable, where not superseded by a differing legislative or administrative rule, to purchases by directors of corporate shares, in the over-the-counter market, at less than book value on conversion under a plan of public utility reorganization. Securities and Exchange Commission v. Chenery Corporation, 318 U. S. 80 (1943); cf. id., 332 U. S. 194 (1947). In the first Chen ery decision it was declared that equity has not imposed “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.” 318 U. S. at 88. When the transactions underlying respondents’ claims here are drawn alongside a good faith standard of fiduciary obligation, they appear unobjectionable. There is no component of unfair dealing or bad faith. The findings negative any misrepresentation or deception, any utilization of inside knowledge or strategic position, or any rivalry with the corporation. During the period of the purchases the conduct of the Becker directors and of respondents with reference to the affairs of the debtor was to its substantial benefit and to the advantage of the other debenture holders. And there is nothing to suggest that had the debentures been acquired by the Becker directors, they would have been unjustly enriched. Cf. Securities and Exchange Commission v. Chenery Corporation, supra, 318 U. S. at 86. However, it is the contention of petitioner, and of the Securities and Exchange Commission as amicus curiae, that a standard of good faith and fair dealing is inadequate here. Relying particularly upon Magruder v. Drury, 235 U. S. 106 (1914), they invoke the principle that a trustee can make no profit from his trust. But Magruder v. Drury involved an express trust, and even during insolvency corporate assets “are not in any true and complete sense trusts.” Hollins v. Brierfield Coal & Iron Co., 150 U. S. 371, 381-382 (1893). The Commission asserts, also, that if a director is free to acquire corporate obligations at a discount during insolvency and later enforce them in full, he will be subject to a possible conflict of interests inconsistent with his role as fiduciary to creditors of the corporation. Specifically it is argued that he may seek to postpone adjustment of claims or the institution of proceedings for relief, when such action would serve the interests of the corporation and its creditors, in order to continue his own purchase of corporate obligations at a market price lower than the valuation which he has made with the benefit of inside information. This Court has recognized that equity must apply not only the doctrines of unjust enrichment when fiduciaries have yielded to the temptation of self-interest but also a standard of loyalty which will prevent a conflict of interests from arising. See Weil v. Neary, 278 U. S. 160, 173 (1929); cf. Woods v. City Nat. Bank & Trust Co., 312 U. S. 262, 268 (1941). In this case the consideration is whether or to what extent a conflict of interests would arise from a director’s opportunity to purchase unmatured obligations of a corporation which, though technically insolvent, remains nevertheless a going concern. That “there is no such conflict in the ordinary case of the purchase by a director in a going corporation of its outstanding obligations,” Seymour v. Spring Forest Cemetery Assn., 144 N. Y. 333, 344, 39 N. E. 365, 367 (1895), would seem true not only of solvent corporations. Certainly the present record does not tend to establish that the opportunity for such purchases during insolvency would deprive a going corporation of the sound judgment of its officer. And in any event the potentiality of conflict must be weighed against the desirability of permitting reinforcement of the insolvent’s position insofar as a director’s acquisition of claims may help. On this record the probability that an actual conflict of loyalties arose from the opportunity to purchase respondents’ claims, while the debtor was a going concern, is not great enough to justify the exercise of equity jurisdiction which petitioner urges. Undoubtedly the possibilities of a conflict of interests for the purchasing director are intensified as the corporation becomes less a going concern and more a prospective subject of judicial relief. And if it is clear that a fiduciary may ordinarily purchase debt claims in fair transactions during solvency of the corporation, the lower federal courts seem equally agreed that he cannot purchase after judicial proceedings for the relief of a debtor are expected or have begun. In this case, which lies between, it is unnecessary to determine precisely at what point the probability of conflict requires that equity declare ended the opportunity for profitable trading. It could hardly have been prior to the latest purchases of Regine and Emily Becker. The nature of the relation between Fribourg and the Becker directors makes immaterial that some of Fribourg’s debentures may have been purchased after the corporation ceased to have the potency of a going concern, in expectation of or even after bankruptcy. Neither director had any indirect interest in Fribourg’s holdings or served as his agent for purchase. Fribourg, moreover, had begun to acquire debentures some months before the negotiations leading to the election of the Beckers as directors of the debtor and, according to Fribourg’s uncontradicted testimony, he began to purchase after looking over the apartment following Sanford Becker’s mention of his own purchase. There is nothing in the record to indicate that Fribourg’s purchases after the Beckers became directors were influenced by advice from them. Accordingly, any consideration of Fribourg’s claim as that of a director is precluded. A word of caution as to the scope of our decision is desirable in view of Judge Learned Hand’s opinion below. He suggested that if in fact liquidation had been imminent at the time of respondents’ purchases or if it were fairly demonstrable, as a matter of experience, that a director free from all potential self-interest would be more likely to initiate liquidation proceedings or to effect a debt settlement than one not wholly disinterested, a court of equity should explore such issues and not dismiss them out of hand. This decision is not meant to negative the relevance of these issues when raised by a proper record. We mention these matters because the Securities and Exchange Commission urges the importance of a decision in this case for questions that may well arise in proceedings under Ch. X. In such proceedings the Securities and Exchange Commission, acting as the statutory ad-visor to the court, would be within its rightful function in submitting to the court the light of its experience on dealings of the general kind disclosed in this case. Here we have proven facts in a particular case, and not a body of evidence submitted by the Securities and Exchange Commission, presumably informed by expert understanding. The decision of the Court of Appeals is Affirmed. Mr. Justice Douglas took no part in the consideration or decision of this case. The amount and cost of the respective holdings of the respondents, insofar as objected to, are as follows: , Principal Amount Cost Regine Becker.................... $44,500 $3060. 63 Emily K. Becker.................. 52,800 5010.00 Walter A. Fribourg................ 50,000 2124.80 Sanford Becker and respondent Fribourg first became interested in the affairs of debtor in September 1941. Soon thereafter each purchased, independently, debentures of debtor of the face value of $5,000. No contest is made of these purchases. It appears that transactions in the debentures included the transfer of capital shares of the debtor which had no market apart from the debentures. The major items of indebtedness consisted of (1) the first mortgage on the apartment building in original principal amount of $175,000, which had been reduced by 1946 to $154,000, of which reduction $7,875 had been paid since 1943; (2) the second mortgage and tax advances of the respondents totalling some $22,000, and (3) the debentures of $254,450, on which, however, interest was payable only if earned. The tax valuation was $421,630. The District Court’s characterization of debtor as a going concern was not upset by the Court of Appeals and is accepted here. Regine Becker began purchases on February 10, 1944, and continued through August 30, 1945. The purchases of Emily Becker were made between May 24, 1944, and February 5, 1945. In addition to the purchases referred to in note 2, supra, Fribourg made purchases through June 4, 1946. The latest purchase by a respondent clearly prior to the contract for sale was by Regine Becker on August 30 preceding the contract in October 1945. Fribourg apparently acquired $1,500 of debentures after the contract of sale and an additional $500 after the filing of debtor’s petition. Since the power of disallowance of claims, conferred on the bankruptcy court by § 2 of the Act, 30 Stat. 545, 11 U. S. C. § 11, embraces the rejection of claims “in whole or in part, according to the equities of the case,” Pepper v. Litton, 308 U. S. 295, 304-305 (1939), the court may undoubtedly require limitation of the amount of claims in view of equitable considerations. Cf. Bankruptcy Act, § 212, 52 Stat. 895, 11 U. S. C. § 612. Cf. In re The Van Sweringen Co., 119 F. 2d 231 (C. A. 6th Cir. 1941); In re Norcor Mfg. Co., 109 F. 2d 407 (C. A. 7th Cir. 1940). Cf. In re Jersey Materials Co., 50 F. Supp. 428 (D. N. J. 1943); In re McCrory Stores Corp., 12 F. Supp. 267 (S. D. N. Y. 1935). Other holdings upon which the Commission relies, Pepper v. Litton, supra, note 7, and Woods v. City Nat. Bank & Trust Co., 312 U. S. 262 (1941), were considered in Securities and Exchange Commission v. Chenery Corporation, 318 U. S. 80, 89 (1943), and there distinguished on grounds which are also dispositive here. Courts of equity, in defining the responsibility of officers of a corporation which is insolvent and yet a going concern, have frequently assigned greater importance to the corporation’s vitality than to its insolvency. E. g., Sanford Fork & Tool Co. v. Howe, Brown & Co., 157 U. S. 312 (1895); White, Potter & Paige Mfg. Co. v. Henry B. Pettes Importing Co., 30 F. 864 (E. D. Mo. 1887). As respondents’ purchases of debentures resulted in their securing control of debtor, see note 2, supra, the acquisitions arguably were a factor in preventing further financial deterioration of debtor. See also 62 Harv. L. Rev. 1391, 1392 (1949): Insolvency “is the very time when such purchases may be of most benefit to the corporation, since the credit of the corporation may be improved if it is known that directors are purchasing the corporation’s securities; also it may be possible to forestall a bankruptcy petition while the corporation improves its financial position.” Cf. In the Matter of Wade Park Manor Corporation, Report of Special Master: Claims of Macklin et al. (N. D. Ohio, 1949); see 3 Collier, Bankruptcy (14th ed.), p. 1784, 1948 Supp. p. 124. See In re Philadelphia & Western R. Co., 64 F. Supp. 738, 739 (E. D. Pa. 1946); Ripperger v. Allyn, 25 F. Supp. 554, 555 (S. D. N. Y. 1938); In re McCrory Stores Corp., note 9, supra, at 269. Monroe v. Scofield, 135 F. 2d 725 (C. A. 10th Cir. 1943); In re Norcor Mfg. Co., note 8, supra; In re Philadelphia & Western R. Co., note 14, supra; In re Jersey Materials Co., note 9, supra; In re Los Angeles Lumber Products Co., 46 F. Supp. 77 (S. D. Cal. 1941). Thus it becomes unnecessary to determine whether the relation of the Becker respondents to the directors was such as to require limitation of these respondents’ claims if they would be disallowed in part as claims of directors. Question: What reason, if any, does the court give for granting the petition for certiorari? A. case did not arise on cert or cert not granted B. federal court conflict C. federal court conflict and to resolve important or significant question D. putative conflict E. conflict between federal court and state court F. state court conflict G. federal court confusion or uncertainty H. state court confusion or uncertainty I. federal court and state court confusion or uncertainty J. to resolve important or significant question K. to resolve question presented L. no reason given M. other reason Answer:
songer_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. Constancia A. Vda de DAYLO v. ADMINISTRATOR OF VETERANS’ AFFAIRS, Appellant No. 71-1241. United States Court of Appeals, District of Columbia Circuit. Argued Dec. 19, 1973. Decided June 26, 1974. David V. Seaman, Atty., Dept, of Justice, with whom Harold H. Titus, Jr., U. S. Atty. at the time the brief was filed, was on the brief, for appellant. Harold J. Nussbaum, Washington, D. C., for appellee. Before FAHY, Senior Circuit Judge, and WRIGHT and MacKINNON, Circuit Judges. J. SKELLY WRIGHT, Circuit Judge: The Administrator of Veterans’ Affairs appeals denial of his motion, under Rule 60(b), Federal Rules of Civil Procedure, for relief from a final, unap-pealed judgment in the nature of mandamus ordering him to pay certain death compensation benefits to appellee Daylo, the widow of a serviceman killed in World War II. The Administrator grounds his motion on certain veterans’ legislation, Section 8(a) and (b) of the Act of August 12, 1970, 38 U.S.C. §§ 211(a) and 3111 (1970), enacted after the final judgment became unappealable. If, as the Administrator contends, these provisions aim to upset judgments, like Mrs. Daylo’s, which are final, no longer subject to appeal, and concerned with past legal and factual relationships, the provisions are of dubious constitutionality. Wherever such is fairly possible, we must construe congressional enactments so as to preserve them from constitutional doubt. Reading the language of these enactments against their legislative history, we are not persuaded that Congress intended to disturb judgments like Mrs. Daylo’s. Accordingly, denial of the Administrator’s motion for relief from the judgment was proper, and it is affirmed. I From 1945 to 1951 the Veterans’ Administration (VA) paid widow’s benefits to Mrs. Daylo under 38 U.S.C. § 321. In 1951, however, the Administration notified her that benefits would cease unless she could prove that she had “not remarried” — a statutory condition of eligibility. This action conformed to the VA’s administrative practice of shifting the burden of proof on the remarriage question to any widow-beneficiary living with another man and holding herself out to the community as his wife. Mrs. Daylo sought to prove she had not remarried, but the Administrator found otherwise and terminated her benefits. In no other circuit but ours would this controversy have found its way into the courts. Since 1940 benefits disputes had been subject to a “no review” statute which, until its amendment in 1970, provided that decisions of the Administrator on any question of law or fact concerning a claim for benefits or payments under any law administered by the Veterans’ Administration shall be final and conclusive and no other official or any court of the United States shall have power or jurisdiction to review any such decision. 38 U.S.C. § 211(a) (1964). The view developed in this circuit, but in no other, that the phrase “claim for benefits or payments” referred not to all benefits disputes but only to those involving initial benefit claims. It was our lonesome opinion that judicial review remained for disputes involving termination of benefits by the VA. Needless to say, this position brought us a great deal of business. Many of these cases involved the VA’s practice, in administering widows’ benefits, of shifting the burden of proof on the remarriage question to the beneficiary. We were unable to find statutory authority for the practice. See Sinlao v. United States, 106 U.S.App.D.C. 263, 271 F.2d 846 (1959). In 1962 Congress entered the dialogue by amending 38 U. S.C. § 101(3) to provide that a “widow,” to be eligible for benefits, must not have “lived with another man and held herself out openly to the public to be the wife of such other man." By establishing a hard and fast rule this amendment went beyond the VA’s own practice of merely shifting the burden of proof as to ceremonial remarriage. Recognizing this, Congress expressly gave the 1962 amendment prospective effect only. But the Senate Committee reporting out the amendment stated its understanding that the VA could apply its burden-shifting rule to instances of alleged remarriage occurring prior to 1962. This understanding, having no statutory force, was not adopted by the courts in this circuit. With this background, we may again pick up the thread of Mrs. Daylo’s story. In 1969 she brought a mandamus action in the District Court to compel payment of the death compensation benefits denied her since the early 1950’s. On May 7, 1970 the court granted partial summary judgment for Mrs. Daylo “with respect to benefits payable prior to September 19, 1962” (i.e., prior to the amendment, mentioned above, of 38 U.S.C. § 101(3)). The post-1962 claims were reserved for later decision, but the District Judge made the partial judgment final and appealable under Rule 54(b). The judgment required the Administrator to pay Mrs. Daylo her pre-1962 benefits “within 120 days.” Deliberately, but for reasons not vouchsafed to us, the Government chose not to appeal Mrs. Daylo’s judgment. After the 60-day period for noting appeal had lapsed, but still within the “120 days” granted by the District Court to the VA for compliance, Congress passed the Act of August 12, 1970, Pub.L. 91-376, 84 Stat. 787. Armed with this legislation, the Administrator moved under Rule 60(b) for relief from the judgment. Mrs. Daylo resisted the motion, but has not yet invoked court process to force compliance with the judgment. The court agreed to dismiss Mrs. Daylo’s pending claims for post-1962 benefits, which decision Mrs. Daylo does not contest, but the court refused to vacate the final judgment involving pre-1962 benefits because it “was legally entered and no appeal was taken therefrom, and * * * the validity of that judgment is unaffected by the passage of Public Law 91-376.” II The Administrator contends that Section 8(a) and (b) of the new Act directly conflicts with Mrs. Daylo’s judgment in the nature of mandamus. Section 8(a) retroactively amended the “no review” statute, 38 U.S.C. § 211(a), to erase the distinction, located by this circuit alone, between initial benefit claims and benefit terminations. The “no review” provision now reads: On and after October 17, 1940, except as provided in sections 775, 784, and as to matters arising under chapter 37 of this title, the decisions of the Administrator on any question of law or fact under any law administered by the Veterans’ Administration providing benefits for veterans and their dependents or survivors shall be final and conclusive and no other official or any court of the United States shall have power or jurisdiction to review any such decision by an action in the nature of mandamus or otherwise. Section 8(b) added a new provision, 38 U.S.C. § 3111, to ratify the VA’s burden-shifting rule with respect to pre-1962 instances of alleged remarriage. There shall be no payment of dependency and indemnity compensation, death compensation, or death pension which, because of a widow’s relationship with another man before enactment of Public Law 87-674, would not have been payable by the Veterans’ Administration under the standard for determining remarriage applied by that agency before said enactment. In the Administrator’s view, 38 U.S.C. § 211(a) conflicts with Mrs. Daylo’s judgment by retroactively withdrawing the jurisdiction of the court which entered the judgment, thus rendering the judgment void. The Administrator finds a second conflict with the judgment by construing 38 U.S.C. § 3111 as a legislative command directly contrary to the mandamus incorporated in the judgment. According to the VA, the court’s mandate requires exactly that which the statutory provision forbids, i. e., “payment of * * * death compensation * * * which, because of a widow’s relationship with another man before enactment of Public Law 87-674, would not have been payable by the Veterans’ Administration under the standard for determining remarriage applied by that agency before said enactment.” The Administrator’s several contentions go an important step further than those considered, and accepted, in de Rodulfa v. United States, 149 U.S.App.D.C. 154, 461 F.2d 1240, cert. denied, 409 U. S. 949, 93 S.Ct. 270, 34 L.Ed.2d 220 (1972). There, judgment had been entered in the District Court against the VA in a benefits dispute, and the VA had appealed only the accompanying award of attorneys’ fees, allowing the judgment for the beneficiaries themselves to become final. While the appeal of the fee award was pending here, Congress enacted the amendment to 38 U.S. C. § 211(a), and the Administrator urged that the fee award accordingly be vacated on jurisdictional grounds. Recognizing that judgments awaiting decision on appeal are not “final,” we agreed: * * * We cannot reconcile the specification in the amended section of a date almost 30 years earlier with any notion that Congress intended these proscriptions to apply only to litigation commenced from the date of amendment forward. We see no purpose to be served by reaching back to the effective date of the older finality statute than to impart to it a meaning Congress felt it should always have had. That objective could be achieved only by intercepting noncontractual claims already in court as well as those that had not arrived, and that is obviously what Congress' did. We hold that Section 211(a) in amended form was directed at pending as well as future judicial reviews of the Administrator’s determinations on claims for noncontractual benefits. 149 U.S.App.D.C. at 163-164, 461 F.2d at 1249-1250 (emphasis added). We took pains to restrict this holding to judgments pending appeal. We agree that the judgments exclusive of the fee awards — that is, the portions directing payment of benefits to the widow-claimants — are beyond the purview of these appeals. Those portions are adjudications by the District Court that became final, because they were not appealed, before the change in Section 211(a) was forthcoming. Nothing we can do on the present appeals can affect them, and nothing we say now is intended to reflect upon them. * * * 149 U.S.App.D.C. at 160, 461 F.2d at 1246. We were also careful to point out the many constitutional “holdings that a change of law does not retroactively affect a proceeding which has already been terminated by a final judgment prior to the change.” 149 U.S.App.D.C. at 166, 461 F.2d at 1252. If, as the Administrator asserts, Sections 211(a) and 3111 aim to upset final judgments no longer subject to appeal, we are confronted with a serious constitutional dilemma. The applicable general rule is of long standing: * * * It is not within the power of a legislature to take away rights which have been once vested by a judgment. Legislation may act on subsequent proceedings, may abate actions pending, but when those actions have passed into judgment the power of the legislature to disturb the rights created thereby ceases. * * * McCullough v. Virginia, 172 U.S. 102, 123-124, 19 S.Ct. 134, 142, 43 L.Ed. 382 (1898). A contrary general rule would subject all judicial action to superior legislative review, a regime obviously inconsistent with due process of law and subversive of the constitutional independence of the judicial branch of government. We recognize that there are exceptional circumstances where final judgments may be upset or altered by subsequent legislation, but we have great difficulty fitting Mrs. Daylo’s judgment within the established exceptions to the general rule. In the seminal case, State of Pennsylvania v. Wheeling & Belmont Bridge Co. {Wheeling Bridge Case), 59 U.S. (18 How.) 421, 15 L.Ed. 435 (1855), the Supreme Court held that Congress could retroactively legalize a bridge, built over an interstate waterway, despite a prior judicial decree ordering that the bridge be raised or removed to permit passage of shipping. The decree had been won by a private party alleging that this obstruction of commerce caused him special damage for which there existed no adequate remedy at law. The Court, in vacating the decree, accepted “as a general proposition, * * * especially as it respects adjudication upon the private rights of parties,” that legislation “cannot have the effect and operation to annul the judgment of the court already rendered, or the rights determined thereby in favor of the plaintiff.” Id. at 431. But the Court distinguished the case before it “so far as it respects that portion of the decree directing the abatement of the bridge.” Id. The judgment was vulnerable to retroactive legislation only to the extent that the remedy chosen — an injunctive decree rather than damages at law — directly affected public rights. Accordingly, the award of costs to the plaintiff which had accompanied the decree was left undisturbed by the Court. Id. at 436. This emphasis upon remedies chosen was reaffirmed in The Clinton Bridge, 77 U. S. (10 Wall.) 454, 19 L.Ed. 969 (1870), which held that an enactment validating the legality of a bridge required dismissal of a pending suit in equity to have the bridge removed but might not similarly require dismissal of a pending suit at law for damages occasioned by the bridge. In Hodges v. Snyder, 261 U.S. 600, 43 S.Ct. 435, 67 L.Ed. 819 (1923), it was held that legislation could validate consolidation of a school district despite a prior decree enjoining the consolidation: [A] suit brought for the enforcement of a public right * * * even after it has been established by the judgment of the court, may be annulled by subsequent legislation and should not be thereafter enforced; although, in so far as a private right has been incidentally established by such judgment, as for special damages to the plaintiff or for his costs, it may not be thus taken away. Id. at 603-604, 43 S.Ct. at 436. In System Federation v. Wright, 364 U.S. 642, 81 S.Ct. 368, 5 L.Ed.2d 349 (1961), the Court held that amendment of the Railway Labor Act required modification of a consent decree, entered under the original Act, which had permanently enjoined a labor union arrangement expressly legalized by the amendment. There is * * * no dispute but that a sound judicial discretion may call for the modification of the terms of an injunctive decree if the circumstances, whether of law or fact, obtaining at the time of its issuance have changed, or new ones have since arisen. * * * Id. at 647, 81 S.Ct. at 371. See Milk Wagon Drivers Union of Chicago, Local 753 v. Meadowmoor Dairies, Inc., 312 U.S. 287, 298, 61 S.Ct. 552, 85 L.Ed. 836 (1941), and United States v. Swift & Co., 286 U.S. 106, 52 S.Ct. 460, 76 L.Ed. 999 (1932). Finally, in McGrath v. Potash, 91 U.S.App.D.C. 94, 199 F.2d 166 (1952), there was at issue the continuing validity of a final decree requiring that certain private litigants not be deported except by procedures set out in the Administrative Procedure Act. Subsequent to entry of the injunctive decree, Congress had expressly exempted deportation proceedings from that Act. We vacated the decree, “[t]he statutory basis for the injunction having been removed by Congress.” 91 U.S.App.D.C. at 96,199 F.2d at 167. Mrs. Daylo’s judgment, like those upset by legislation in these earlier cases, had a prospective effect in that the Administrator was given “120 days” in which to comply. But this crude resemblance can hardly be considered dispositive. An award of damages at law, which all authorities'agree is immune from legislative alteration, is also “prospective” to the extent that compliance by the judgment debtor may be less than instantaneous. Like an action for damages, a mandamus action sounds in law, not equity, and when the mandate calls merely for payment of a past obligation, it can be distinguished from a conventional money judgment only on the most formal of grounds. No case has yet held that a judgment is vulnerable to legislative annullment merely because the judgment had not yet been complied with when the legislation was enacted. Rather, such vulnerability would seem to depend on the character of the compliance called for. Thus, in Wheeling Bridge Case, supra, The Clinton Bridge, supra, Hodges v. Snyder, supra, and System Federation v. Wright, supra, the judicial decrees at issue called for actions which would have directly affected the rights of many persons not privy to the judgments, i. e., would have trenched upon “public rights.” In McGrath v. Potash, supra, the decree was addressed only to the parties to the litigation but it did purport to freeze their legal relations for the indefinite future: The immigration authorities were required to use a complex set of procedures in any future attempt to deport the plaintiffs. What appears to unite these cases is that the injunctive decrees at issue were “legislative” in function, attempting to control the legal status of a variety of future actions which the parties, or others, might or might not wish to take. The distinction is between restraints that give protection to rights fully accrued upon facts so nearly permanent as to be substantially impervious to change, and those that involve the supervision of changing conduct or conditions and are thus provisional and tentative. United States v. Swift & Co., supra, 286 U.S. at 114, 52 S.Ct. at 462. The mandamus issued in the present case does not serve “legislative” functions. No more than would a money judgment does this mandamus speak to the VA’s future relations with Mrs. Daylo, or with any other claimant, concerning as yet undecided benefits disputes. Nor is the mandamus directed at Mrs. Daylo’s right to future benefits and thus at facts and conditions “provisional and tentative” in nature. The mandamus was issued entirely on the basis of events long since concluded. Like that of a money judgment, the force of the mandamus is self-terminating upon a single act of compliance; the VA is not bedevilled here by continuing judicial supervision or a “permanent” decree. In sum, to hold that Congress could annul Mrs. Daylo’s judgment would be to enlarge substantially the exception carved by applicable precedent in the general, constitutional rule that rights vested in final judgments, no longer subject to appeal, are immune from legislative alteration. Thus, were we to accept the VA’s construction of 38 U.S.C. §§ 211(a) and 3111, serious doubts would arise as to the constitutionality of those provisions. Where there exist “serious questions concerning the constitutionality” of legislation, “it is a cardinal principle” that the courts “will first ascertain whether a construction of the statute is fairly possible by which the [constitutional] question[s] may be avoided.” Johnson v. Robison, 415 U.S. 361, 367, 94 S.Ct. 1160, 1165, 39 L.Ed.2d 389 (1974), quoting United States v. Thirty-seven Photographs, 402 U.S. 363, 369, 91 S.Ct. 1400, 28 L.Ed.2d 822 (1971). See also Lynch v. Overhol-ser, 369 U.S. 705, 710-711, 82 S.Ct. 1063, 8 L.Ed.2d 211 (1962); International Assn of Machinists v. Street, 367 U.S. 740, 749-750, 81 S.Ct. 1784, 6 L.Ed.2d 1141 (1961); Flemming v. Nestor, 363 U.S. 603, 617, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960). Furthermore, where a statute lies in the shadow of constitutional doubt, its proper construction will usually require an exploration of legislative history. [W]hen one interpretation of a statute would create a substantial doubt as to the statute’s constitutional validity, the courts will avoid that interpretation absent a “clear statement” of a contrary legislative intent. United States v. Thompson, 147 U.S. App.D.C. 1, 5, 452 F.2d 1333, 1337 (1971), cert. denied, 405 U.S. 998, 92 S.Ct. 1251, 31 L.Ed.2d 467 (1972). III We consider first 38 U.S.C. § 211(a), the amended “no review” statute. The Administrator locates an intent to annul final judgments in the fact that Congress made the amendment retroactive to October 17, 1940, the date of enactment of the first “no review” statute. This is not an untenable argument, but it overlooks another possible explanation for the retroactivity language. Congress might well have thought that, absent such language, the amendment would be judicially construed to apply only prospectively, with no effect on pending suits and judgments not yet final at the time of enactment. The Supreme Court has long held that “ [r] etroactivity, even where permissible, is not favored, except upon the clearest mandate.” Claridge Apartments Co. v. Comm’r of Internal Revenue, 323 U.S. 141, 164, 65 S.Ct. 172, 185, 89 L.Ed. 139 (1944). For this reason, our conclusion in de Rodulfa v. United States, supra, that 38 U.S.C. § 211(a) applies to pending as well as new cases relied very heavily on the retroactivity language in the provision, 149 U.S.App.D.C. at 161, 163-164, 461 F.2d at 1247, 1249-1250. It might be objected that Congress would not have stretched retroactivity back 30 years if the only purpose were to intercept pending cases and nonfinal judgments. But this argument overlooks the fact that many of the suits pending in the courts when the provision was debated dealt with benefits owing for years “as early as the 1940’s.” Indeed, we think the 30-year reach of the retroactivity language militates rather strongly against the view that the language aimed to nullify final judgments no longer subject to appeal. It would be an extraordinary gesture for Congress to obliterate judgments rendered over a 30-year period and thereby empower the VA to sue for return of all moneys paid out on those old judgments. At oral argument the VA informed us that it has decided not to bring suit against judgments already paid, presumably because such a course would be an affront to both common sense and fair play. But the VA’s formal interpretation of 38 U.S.C. § 211(a) imputes to Congress an intent to authorize just such a course. Nowhere in the legislative history of the provision can we find any reference to such an intent; certainly there is no “clear statement” of it. The retroactive amendment of 38 U. S.C. § 211(a) had its origin in a proposal, supported by the VA, to redefine the term “claim” in all of Title 38 of the Code; the redefinition was to make clear that the term covered benefit terminations as well as initial benefits claims. The VA urged that the redefinition be made retroactive to October 17, 1940: * * * From an examination of the legislative history of Public Law 866, 76th Congress [which enacted the first “no review” statute on October 17, 1940], it seems quite clear that the Congress intended the exemption from judicial review therein enacted to be all-inclusive and did not contemplate the construction adopted in the Well-man, Thompson, and Tracy decisions [of the D.C. Circuit]. Since the pending bill would, if enacted, remove all doubt as to the intended scope of the existing finality provisions, the Veterans’ Administration strongly endorses the bill’s enactment. While we cannot furnish any precise estimate of the savings to be effected through the enactment of H.R. 17564, a study by the Veterans’ Administration of the first 32 judgments adverse to the Administrator, has shown that accrued and estimated future payments in those cases alone will total in excess of $1.4 million. As heretofore noted, nearly all of these judgments involved application of the presumption of * * * remarriage rule. We think there is a clear distinction between an intent to “remove all doubt as to the intended scope of the existing finality provisions” and an intent to upset final, unappealable judgments entered— perhaps years earlier — under those provisions. The quoted statement does of course mention “32 judgments adverse to the Administrator,” but there is no clear statement that these would be overturned by the proposed amendment or, indeed, that these judgments were, at the time, final and no longer subject to appeal. Elsewhere in its statement, the VA focused on cases then moving through the courts (i. e., pending cases) and on the possibility of “millions” of new cases in the future. The House Committee decided to amend 38 U.S.C. § 211(a) directly, and retroactively, rather than to redefine “claim” retroactively for all of Title 38. In defending its proposed amendment, the Committee retraced the story of this circuit’s aberrant reading of the former 38 U.S.C. § 211(a) and expressed alarm that “suits in constantly increasing numbers have been filed in the U. S. District Court for the District of Columbia by plaintiffs seeking a resumption of terminated benefits.” These general comments give no indication that the proposed amendment was to upset final judgments no longer subject to appeal. On this issue the Committee’s specific remarks directed at the proposed amendment are at best ambiguous: It seems to this committee that it is quite clear that the Congress, in enacting the exemption from judicial review in Public Law 866, 76th Congress, intended that exemption to be all inclusive and did not intend the fairly tortured construction adopted by the court of appeals in the Well-man, Thompson, and Tracy holdings. * * * In view of the foregoing, this committee has included in H.R. 17958, a new subsection 8(a) which restates the provisions of subsection 211(a) of title 38, United States Code, to eliminate the word “claim” from that subsection. * * * The provision is specifically made effective October 17, 1940, the date of enactment of Public Law 866, 76th Congress. The committee believes that this approach to solving the problem is preferable to that employed in H.R. 17564, i. e., adding a definition of the word “claim” to title 38, United States Code. The restated section 211(a) will make it perfectly clear that the Congress intends to exclude from judicial review all determinations with respect to noncontractual benefits provided for veterans and their dependents and survivors. * •>:• -» * * * As noted above, a large percentage of the suits filed to date have involved the presumption of remarriage rule. A study of the first 32 judgments adverse to the Administrator of Veterans’ Affairs has shown that accrued and estimated future payments in those cases alone will total in excess of $1.4 million. It is therefore apparent that the enactment of these provisions will result in substantial savings to the Government. It is arguable that the final paragraph implies an intent to upset the “first 32 judgments,” but the ambiguities remain: Conceivably the Committee cited those judgments simply as a portent of future losses should the amendment not be enacted; and even if those judgments were a target of the amendment, it is not clear that the Committee thought them final and unappealable. The simple fact is that the Committee did not focus its attention on whether final judgments, no longer subject to appeal, should be upset. Rather, the Committee’s conscious and stated objective was merely to “make it perfectly clear that the Congress intends to exclude from judicial review all determinations with respect to noncontractual benefits.” This objective can of course be met without providing renewed judicial review to reopen judgments already final. Congress adopted the Committee’s proposed amendment of Section 211(a) with a minimum of floor debate. The scattered remarks directed at the amendment were entirely general in character and indicated no awareness or intent that the amendment would come into conflict with final judgments no longer subject to appeal. We turn next to the new section, 38 U.S.C. § 3111, which provides that “[t]here shall be no payment of -x- -x- * death compensation” when such “would not have been payable” under the VA’s pre-1962 “standard for determining remarriage.” The House Committee’s explanation of this provision is very brief. The committee has also added subsection 8(b) to H.R. 17958. This language, which stems from H.R. 7624, 91st Congress, will expressly ratify the application of the Veterans’ Administration administrative presumption of remarriage rule with respect to all pre-1962 cases. This action is deemed necessary because the judiciary has ignored the Congressional endorsement, in 1962, of that administrative practice. The question is whether the provision’s no-payment command to the VA was meant by Congress to apply even where the payment is mandated by a final judgment no longer subject to appeal. The language of the provision does not say so; nor does the legislative history so indicate, the floor debates adding nothing to the House Committee’s explanation' of the provision’s purpose. Certainly we cannot hold that 38 U.S.C. § 3111 applies to final judgments merely because no express exemption for such judgments is carved into the provision. Such an exemption is rarely if ever contained in new legislation. The exemption is to be assumed unless the legislature speaks clearly to the contrary. Congress has not done so in this case. We conclude that 38 U.S.C. §§ 211(a) and 3111 do not conflict with the validity and force of final judgments, like Mrs. Daylo’s, which were no longer subject to appeal on the effective date of those statutory provisions, which adjudicated only past events, and which required merely a payment of benefits past due at the time of judgment. It is conceivable that Congress intended such judgments to fall. But, if so, the intent was nowhere clearly expressed. In view of the serious constitutional problems which such an intent would raise, we are unwilling to impute it to Congress on the basis of ambiguous and fragmentary evidence. As passage of the two statutory provisions had no effect on the validity and force of Mrs. Daylo’s judgment, the Administrator’s motion under Rule 60(b) was properly denied. Affirmed. . Daylo v. Administrator of Veterans’ Affairs, D. D.C., Civil Action No. 1604-69 (order of Jan. 25, 1971), JA at 26a. . So far as liere pertinent, Rule 60(b) provides : 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 : * * * (4) the judgment is void; (5) * * * it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time . Daylo v. Administrator of Veterans’ Affairs, D. D.C., Civil Action No. 1604-69 (order of May 7, 1970 granting partial summary judgment to plaintiff), JA at 21a-22a. . Pub.L. 91-376, 84 Stat. 787-790. . This basic entitlement statute has undergone several amendments since World War II which are not relevant to the present case. The provision now reads : The surviving widow, child or children, and dependent parent or parents of any veteran who died before January 1, 1957 (or after April 30, 1957, under the circumstances described in section 417(a) of this title) as the result of injury or disease incurred in or aggravated by active military, naval, or air service, in line of duty, during a period of war, shall be entitled to receive compensation at the monthly rates specified in section 322 of this title. 38 U.S.C. § 321 (1970). . Prior to Sept. 19, 1962, the term “widow” was defined as follows, for purposes of Title 38: The term “widow” means * * * a woman who was the wife of a veteran * * * and who lias not remarried (unless the purported remarriage is void). 38 U.S.C. § 101(3) (1958). The provision was amended by the Act of Sept. 19, 1962, § 1, Pub.L. 87-674, 76 Stat. 558, so that it now reads, in pertinent part: The term “widow” means * * * a woman who was the- wife of a veteran * * * and who has not remarried or (in cases not involving remarriage) has not since the death of the veteran, and after September 19, 1962, lived with another man and held herself out openly to the public to be the wife of such other man. 38 U.S.C. § 101(3) (1970). . This administrative practice is outlined in a letter from the Administrator to the Chairman of the House Committee on Veterans’ Affairs dated June 9, 1970, included in H.R. Rep.No. 91-1166, 91st Cong., 2d Sess. (to accompany H.R. 17958) at 22 (1970). . The administrative history of Mrs. Daylo’s case is traced in the affidavit of Theodore K. Chamberlain, Attorney, Office of the General Counsel, Veterans’ Administration, filed with the District Court on Nov. 17, 1969.' JA at 13a-15a. . See generally Johnson v. Robison, 415 U.S. 361, 366-374, 94 S.Ct. 1160, 1165-1169, 39 L. 13d.2d 389 (1974), and de Rodulfa v. United States, 149 U.S.App.D.C. 154, 158-164, 461 F.2d 1240, 1244-1250, cert. denied, 409 U.S. 949, 93 S.Ct. 270, 34 L.Ed.2d 220 (1972). . The first “no review” provision was actually contained in § 5 of the Economy Act of 1933, 48 Stat. 9, which created the present Veterans’ Administration. That statute provided: All decisions rendered by the Administrator of Veterans’ Affairs under the provisions of this title * * * shall be final and conclusive on all questions of law and fact, and no other official or court of the United States shall have jurisdiction to review by mandamus or otherwise any such decision. The statute was amended in 1940, 54 Stat. 1197, to read: Notwithstanding any other provisions of law * * * the decisions of the Administrator of Veterans’ Affairs on any question of law or fact concerning a claim for benefits or payments under this or any other Act administered by the Veterans’ Administration shall be final and conclusive and no other official or any court of the United States shall have power or jurisdiction to review any such decisions. A final and minor rewording appeared in the Veterans’ Benefits Act of 1957, 71 Stat. 92, yielding the language quoted in text. . Tracy v. Gleason, 126 U.S.App.D.C. 415, 379 F.2d 469 (1967) ; Thompson v. Gleason, 115 U.S.App.D.C. 201, 317 F.2d 901 (1962) ; Wellman v. Whittier, 104 U.S.App.D.C. 6, 259 F.2d 163 (1958). . See, e. g., Redfield v. Driver, 9 Cir., 364 F.2d 812 (1966) ; Milliken v. Gleason, 1 Cir., 332 F.2d 122 (1964), cert. denied 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_numappel
5
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 STEELWORKERS OF AMERICA, LOCAL 2116, Russell Whisman, Darrell Tucker, G.R. Jones, and David Jewell, Plaintiffs-Appellants, v. CYCLOPS CORPORATION, Defendant-Appellee. No. 87-3191. United States Court of Appeals, Sixth Circuit. Argued March 1, 1988. Decided Oct. 25, 1988. William K. Shaw, Jr. (argued), Portsmouth, Ohio, for plaintiffs-appellants. Daniel O. Berger, Cincinnati, Ohio, Stephen C. Kunkle (argued), Pittsburgh, Pa., for defendant-appellee. Before ENGEL, Chief Judge, and MERRITT and KRUPANSKY, Circuit Judges. The Honorable Albert J. Engel assumed the duties of Chief Judge effective April 1, 1988. ENGEL, Chief Judge. Plaintiffs appeal the denial by the United States District Court for the Southern District of Ohio, Western Division, of their motion for summary judgment and the granting of defendant’s motion for summary judgment in this action involving a pension plan funding dispute between the parties. Plaintiffs allege that the district court erred in finding that there were no questions of material fact as to plaintiffs’ claims under its collective bargaining agreement with the defendant and under the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001 et seq. We agree with the district court that summary judgment was appropriate on the ERISA claims and some of the contractual claims. However, we believe that plaintiffs’ prospective contractual claims do not present a present, justiciable controversy and therefore we dismiss them as not ripe for adjudication. FACTS Defendant Cyclops Corporation, a manufacturer of steel and related products, owned and operated a production facility near Portsmouth, Ohio. Plaintiff United Steelworkers Union local # 2116 has represented the Portsmouth bargaining unit in negotiations with Cyclops and its predecessors since the 1940’s. Cyclops and the local last entered into a collective bargaining agreement on July 24, 1980. This pact extended the coverage of existing pension and employment agreements until July 31, 1981. In early 1980, Cyclops unsuccessfully attempted to sell the entire Portsmouth facility as a going concern. It did, however, succeed in selling the coke plant operation to New Boston Coke Corporation, a wholly owned subsidiary of McLouth Steel Corporation, on November 21, 1980. New Boston, which had decided to hire 227 of Cyclops’ former employees, entered into a collective bargaining agreement and a pension agreement with local # 2116 on November 10, 1980. These agreements were virtually identical to the contracts to which Cyclops and the union had previously agreed. As a part of the sale agreement, New Boston agreed to assume all accrued pension liabilities while Cyclops agreed to transfer that portion of its pension fund that was attributable to the Cyclops employees who would continue their employment with New Boston. Pursuant to this agreement, Cyclops transferred $168,380 in pension assets to New Boston’s pension plan on February 6, 1981. Following these transactions, New Boston petitioned the United States Bankruptcy Court for the Eastern District of Michigan for reorganization under Chapter 11 of the Bankruptcy Act. The bankruptcy trustee has continued to operate the Portsmouth coke plant and there has been no default on pension payments by New Boston. Appellants filed a complaint on July 18, 1983. The complaint alleged that Cyclops had violated its collective bargaining agreement with local #2116 by underfunding the pension accounts that it transferred to New Boston and by failing to obtain the consent of the court to the pension transfer. They further claim that Cyclops violated its fiduciary duty under 29 U.S.C. §§ 1103 and 1104 by engaging in a transaction that was not in the best interests of the pension plan and violated 29 U.S.C. § 1106 by conducting a prohibited transaction involving pension fund assets. The district court, in an order dated January 20, 1987, 653 F.Supp. 574, granted defendant’s motion for summary judgment on all of the above claims, stating that: Appellant now brings a broad-based appeal, claiming that the district court misper-ceived both the law and the facts. Justice has been done in this action, as both parties have fulfilled their obligations and received the benefits of the sale of the coke plant. For its part, defendant has sold the coke plant. Plaintiffs retained their jobs as well as their pension rights built over a career of service with Cyclops. Defendant has paid its share of the pension obligations to New Boston, and New Boston has received experienced and valued workers guaranteeing them the same pension as they had with Cyclops. Fairness dictates that plaintiffs not be able to recover twice for the years of service accumulated through employment with Cyclops. The actions of defendant with regard to plaintiffs and their pension agreement was therefore fair, equitable and just. I. The Collective Bargaining Agreement Appellants’ first cause of action is based on the 1977 pension agreement that local #2116 entered into with Cyclops. Both parties have stipulated to the fact that the pension agreement is a part of the collective bargaining agreement between the parties. Appellants’ brief does not specify which provisions of the pension agreement have allegedly been violated. Instead, appellants simply claim that the transfer of pension assets without the consent of local # 2116 violates the pension agreement. The union argues both that pension assets and liabilities could not be transferred without its consent and that the sale of the coke facility, as it affects union employment, could not take place without the union’s consent. The district court, in considering appellants’ claim, examined the individual sections of the agreement. The court first noted that Paragraph 1.3 states that “benefits shall be provided by the Company or caused to be provided by the Company for the participants.” Paragraph 8.1 echoes this flexibility, stating: For the purpose of supplying the benefits herein provided, the Company may establish or cause to be established a trust or trusts or may utilize any existing trust or trusts heretofore established by or on behalf of the Company. The Company is free to determine the manner and means of making provision for funding and paying the benefits set forth in this Agreement. The court then noted that while Cyclops was permitted, under the Agreement, to choose its means of payment, it was still liable for benefits. The court found that under Paragraph 9.2, “[a]ny benefit properly payable pursuant to this Agreement shall continue to be payable, notwithstanding the termination or expiration of this Agreement.” The court interpreted this paragraph as meaning that Cyclops retained a duty toward the union, even after selling the coke plant. However, the court found that Cyclops had met this duty, at least for the present, through its transfer of $168,380 of the pension fund: To fulfill its obligation under the pension plan, Cyclops, through the Trustee of the Cyclops Hourly Plan, transferred assets totalling $168,380, plus interest since October 31, 1980, to a bank designated as the New Boston Plan Trustee. The $168,380 represents the portion of Cyclops Hourly Plan assets which Cyclops actuaries, TPF & C, advised was allocable to the listed employees at the Cyclops Portsmouth facility pursuant to the federal law governing contributions to pension plans. The evidence is undisputed and reasonable minds can only conclude that the $168,380 was Cyclops obligation under its pension plan agreement with plaintiffs to the listed employees at the Cyclops Portsmouth facility for the payment of future pension obligations which had arisen from the employees’ years of service with Cyclops. This payment of over $150,000 is the “safety net” requested by plaintiffs and required by federal law. Thus, the court found that there was no violation of the collective bargaining agreement on this ground. The court further found that the sale of the coke plant itself did not violate any rights protected by the pension plan. We agree, and affirm that part of the district court’s opinion which grants summary judgment to Cyclops on plaintiffs’ present collective bargaining agreement claims. However, implicit in the parties arguments is a dispute that is prospective in nature. The union argues essentially that while Cyclops may have fulfilled its obligations to pay into the pension fund at the minimum amount required by the pension agreement and ERISA, this was not Cyclops’ only obligation under the collective bargaining agreement and the pension plan established thereby. The union argues that Cyclops remains potentially, liable for that portion of the transferred employees’ future pension benefits which is attributable to their years of service with Cyclops. While the $168,380 paid by Cyclops represents its funding obligation under ERISA, the payment does not limit Cyclops’ ultimate potential liability. Should the assets held by the New Boston plan prove insufficient to meet that liability, the union claims that Cyclops would remain obligated to make up the difference. That Cyclops may have a hold harmless or other contractual promise from New Boston is a matter of concern for Cyclops, not the union. The union states that it has neither been asked nor has it agreed to release Cyclops from such an obligation, and the provisions of ERISA are not intended to eliminate that deficiency. Thus, if New Boston should be unable, through insolvency or otherwise, to make good on its obligations, the union wishes it established now that Cyclops will not at that time be relieved of its underlying obligation. A contrary rule, argues the union, would allow the company to avoid its obligation to pay the difference between its funded obligation and its potential liability by the transfer of employees or the sale of a division of its activities to an unsound purchaser. The union argues that such a transaction would permit an employer to rid itself of potential pension liability, without the consent of the union with whom it has contracted to pay benefits. Both parties seek from us a definitive ruling on this question. Cyclops would have us rule that it is completely relieved of all potential future liability. The union would have us hold exactly the opposite. Even though the district court may have properly held that there has been no present breach of the collective bargaining agreement by Cyclops and, further, no violation of ERISA, the union and its affected members are concerned that the language of the district court’s opinion will be found to foreclose any future possibility of relief against Cyclops. Such a holding would prevent the union from claiming at a later date that New Boston, through insolvency or otherwise, was unable or unwilling to meet the pension obligations transferred by Cyclops and that therefore, Cyclops was liable for the unpaid benefits. The heart of the parties’ disagreement is found in the following language of the district judge’s opinion: As to defendant’s contention that a novation has taken place, reasonable minds can only conclude from the undisputed material facts, that plaintiffs did not agree to a substituted contract. Rather, the evidence leads only to the conclusion that plaintiffs did not discharge Cyclops from its original duty under the pension plan, but added New Boston to be responsible for pension benefits earned for plaintiffs’ efforts at New Boston, when plaintiffs determined to continue with employment at New Boston instead of retiring from Cyclops. Thus, both Cyclops and New Boston owe a duty to plaintiffs, however, Cyclops has fulfilled its duty to plaintiffs by the payment of its allocable contribution to the New Boston Plan and its agreement with New Boston. Cyclops asserts that the district court’s language finding that “Cyclops has fulfilled its duty...” means that it is discharged from any further liability, regardless of any future default by New Boston or its successors. The union desires an opposite construction. It would have preferred that the district court had held that “... Cyclops has fulfilled its [present] duty to plaintiffs,” accompanied by an express holding that Cyclops is not relieved of future liability in the event of some future default. Our review of the case law and legislative history reveals no definitive answer to the question raised by the parties. Likewise, we are uncertain of the intentions of the district court embodied in the cited portions of its opinion. It is at best ambiguous, but is probably more consistent with the position taken by Cyclops. Before addressing this question, we must determine whether the issue of Cyclops potential, future liability is ripe for adjudication. Paragraph 9.5 of the pension agreement provides that: Neither any participant prior to his retirement under conditions of eligibility for pension benefits nor any surviving spouse prior to eligibility for a surviving spouse’s benefit shall have any right or interest in or to any portion of any funds which may be paid into any pension trust or trusts heretofore or hereafter established for the purpose of paying pensions and no participant, co-pensioner or surviving spouse shall have any right to pension benefits except to the extent provided in this Agreement. Employment rights shall not be affected by reason of this Agreement. Thus, the only individuals who have any interest in their pensions are those who have already retired. However, the parties have stipulated to the facts that New Boston has not failed in meeting its pension funding obligations and that all employees who have applied for a pension have received one. Since current employees have no contractual rights that they could vindicate in this action, while those already retired have had none of their rights violated, we hold that as to the individual plaintiffs in this action, the prospective contractual claims are not ripe. However, we believe that the justiciability of the union’s claim presents a much closer question. Like the individual employees, the union cannot point to an obvious and immediate breach of the contract. However, unlike its employees, the union is a party to the collective bargaining agreement. Thus, it could claim that it has a right to adjudicate issues that threaten the security of its contract. Here, the union’s security may be threatened by Cyclops’ transfer of pension fund liabilities to a company that is now involved in Chapter 11 proceedings. The Supreme Court has stated that the basic rationale of the ripeness doctrine “is to prevent the courts, through premature adjudication from entangling themselves in abstract disagreements.” Thomas v. Union Carbide Agricultural Products Co., 473 U.S. 568, 580, 105 S.Ct. 3325, 3332, 87 L.Ed.2d 409 (1985). We have both echoed and refined this sentiment. See, e.g., Brown v. Ferro Corp., 763 F.2d 798, 801 (6th Cir.1985) (“The ripeness doctrine not only depends on the finding of a case and controversy and hence jurisdiction under Article III, but it also requires that the court exercise its discretion to determine if judicial resolution would be desirable under all of the circumstances.”); Young v. Klutznick, 652 F.2d 617, 625 (6th Cir.1981) (“Courts must first ‘determine whether the issues tendered are appropriate for judicial resolution,’ and then ‘assess the hardship to the parties if judicial relief is denied at that stage.’ ” (quoting Toilet Goods Association v. Gardner, 387 U.S. 158, 162, 87 S.Ct. 1520, 1523, 18 L.Ed.2d 697 (1967)). In undertaking a ripeness analysis, we weigh several factors. We pay particular attention to the likelihood that the harm alleged by plaintiffs will ever come to pass. See, e.g., Thomas, 473 U.S. at 580-81, 105 S.Ct. at 3332-33 (finding a case not ripe when it involved “ ‘contingent future events that may not occur as anticipated, or indeed may not occur at all.’ ” (citing 13A C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 3532 (1984).)); Babbitt v. United Farm Workers National Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 2308, 60 L.Ed.2d 895 (requiring a “realistic danger of sustaining a direct injury----”). In the instant case, it is far from clear that New Boston will ever fail to meet its pension obligations. While it is true that McLouth Steel is a party to a Chapter 11 bankruptcy proceeding, it is also true that no pension payments or funding requirements have been neglected. Further, Cyclops claims that even in the event of a default by New Boston, the Pension Benefit Guarantee Corporation [PBGC] would pay the applicable benefits. While the parties have not briefed this issue extensively, our understanding of the PBGC leads us to conclude that there is a strong possibility that it would be liable to the members of the union for pension benefits in the case of a default by New Boston. A second factor that we must consider is whether the factual record of this case is sufficiently developed to produce a fair and complete hearing as to the prospective claims. In the Regional Rail Reorganization Act Cases, 419 U.S. 102, 95 S.Ct. 335, 42 L.Ed.2d 320 (1974), the Court stated that “there are situations where, even though an allegedly injurious event is certain to occur, the Court may delay resolution of constitutional questions until a time closer to the actual occurrence of the disputed event, when a better factual record might be available.” Id. at 143, 95 S.Ct. at 358. The Court expounded on this statement later, when it observed: For example, the controversy over the proper valuation theory to be applied to both the rail properties and the stock of Conrail provided as compensation depends upon contingencies that argue forcefully for postponement of its resolution. The parties have stipulated that it will be impossible to ascertain until the Final System Plan is effective which rail properties will be transferred to Conrail, or their value on any valuation theory, or the value of the consideration to be exchanged for the rail properties. Id. at 146, 95 S.Ct. at 360. In this case, there are several facts which militate for delaying any decision. Even assuming that New Boston fails to meet some of its pension obligations following the completion of Chapter 11 proceedings, we are unsure as to whether it will be able to pay a part of those benefits and how large that part will be. Further, we do not know what the statutory maximum for PBGC benefits, which has changed several times, would be at the time of New Boston’s default. Thus, even if New Boston does default on its obligations, it is quite possible that Cyclops may have no residual liability. Such a determination depends upon facts that would only become clear at the time, if any, when New Boston defaults. The final factor that we must consider is the hardship that refusing to consider plaintiff’s prospective claims would impose upon the parties. In Pacific Gas & Electric Co. v. Energy Resources Comm’n, 461 U.S. 190, 103 S.Ct. 1713, 75 L.Ed.2d 752 (1983), the Court stated that “[i]n Abbott Laboratories, which remains our leading discussion of the doctrine, we indicated that the question of ripeness turns on ‘the fitness of the issues for judicial decision’ and ‘the hardship to the parties of withholding court consideration.’ ” Id. at 201, 103 S.Ct. at 1720 (citing Abbott Laboratories v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967). Here, we believe that a delay in the litigation of this hypothetical claim would not unduly prejudice plaintiffs’ interests. The union could claim that a statement by a court that Cyclops remained liable on the collective bargaining agreement could permit it to take further action against Cyclops to insure that it is maintaining adequate funds to meet this potential liability. However, we see nothing in the collective bargaining agreement or in the federal common law of contracts that would afford plaintiff such a right. Thus, the union would be left with a declaration of future, hypothetical rights and no present means with which to enforce it. Similarly, Cyclops could claim that the issue should be decided on its merits so that it could utilize all of its corporate funds without fear of having to reserve a portion to pay pension benefits to the workers who were transferred to New Boston. As we have just noted, Cyclops would not be required to maintain a separate account for these funds. Any other decision based on the fear of potential pension liability, such as a decision to avoid risky investments or rapid expansion, is too speculative for us to consider as a concrete effect of our holding on justiciability. Further, if we were to declare that Cyclops did not have any remaining duty to pay benefits to union members, it would also have little impact upon the behavior of the parties. The union, one can only assume, already intends to pursue its remedies against New Boston and the PBGC if there is a default. This decision would not change that position. Further, Cyclops is already basically free to invest its funds as it chooses, and its freedom would be expanded only slightly by a decision firmly eliminating its potential liability here. Considering all of these factors, we must conclude that while an opinion resolving Cyclops’ prospective liability for pension benefits could have some present impact, it would function primarily in a hypothetical capacity. Thus, we must conclude that the district court’s opinion granting defendant’s summary judgment motion erred to the extent that it held that defendant was entitled to summary judgment on the issue of its prospective liability. While we have stated that the question of prospective benefits is not ripe, we do not mean to imply that appellants’ future right to litigate this question is necessarily foreclosed. As we noted previously, Paragraph 9.2 of the Agreement states that “[a]ny benefit properly payable pursuant to this Agreement shall continue to be payable, notwithstanding the termination or expiration of this Agreement.” We believe that this provision may leave the union with a potential cause of action, irrespective of our decision as to whether Cyclops complied with ERISA’s funding requirements. While ERISA merely provides minimum funding requirements for pension plans, this provision would appear to be a promise to pay benefits, regardless of the fact that funding may have also been technically adequate. Both the Supreme Court and this court have repeatedly considered cases pertaining to the interpretation of pension plan provisions of collective bargaining agreements under both section 502(a) of ERISA, 29 U.S.C. § 1132(a), and section 301 of the Labor Management Relations Act, 29 U.S. C. § 185. See, e.g., Kaiser Steel Corp. v. Mullins, 455 U.S. 72, 76, 102 S.Ct. 851, 855, 70 L.Ed.2d 833 (1982); In re White Farm Equipment Co., 788 F.2d 1186, 1190 (6th Cir.1986); Policy v. Powell Pressed Steel Co., 770 F.2d 609, 610 (6th Cir.1985). We have further stated that an individual or a union may enforce a promise by an employer to provide pension benefits that are in excess of the minimum standards guaranteed by ERISA. In White Farm, plan members sought to enforce plan documents providing for mandatory vesting of retiree welfare benefits, even though this was not a requirement of ERISA. A panel of our court held: the parties may themselves set out by agreement or by private design, as set out in the plan documents, whether retiree welfare benefits vest, or whether they may be terminated. In construing such agreements, courts may draw inferences or make presumptions as this court has done in construing collective bargaining agreements providing welfare benefit plans. Id. at 1193. Other courts have also adopted their position. See, e.g., International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW v. Keystone Consolidated Industries, Inc., 793 F.2d 810, 814 (7th Cir.1986) (“ERISA does not forbid parties to collectively bargain for obligations greater than, and separate from, the ERISA minimum funding obligations.”); Murphy v. Heppenstall Co., 635 F.2d 233, 239 (3d Cir.1980) (“ERISA established “minimum standards” for pension payments due retired employees____ It is not inconsistent with the statutory scheme to permit employees to recover directly from the employer any additional benefits to which the employer has contractually obligated itself.”). While ERISA’s preemption provision, 29 U.S.C. § 1144, is rather sweeping, it does not alter the outcome of this case. In suits to enforce collective bargaining agreements, courts rely on the federal common law of labor relations. See, e.g., Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 456, 77 S.Ct. 912, 917, 1 L.Ed.2d 972 (1957); Apponi v. Sunshine Biscuits, Inc., 809 F.2d 1210, 1215 (6th Cir.1987); White Farm, 788 F.2d at 1191. While state law may be utilized by federal courts in creating federal common law, it is imbued with federal character by virtue of its incorporation into that common law. Holliday v. Xerox Corp., 555 F.Supp. 51, 55 (E.D.Mich.1982). At oral argument, appellants’ counsel suggested that if appellants were unable to bring an action until New Boston defaulted on its pension obligations, they would run the risk of being barred by the statute of limitations. We disagree. We have already stated that there has been no present breach of the collective bargaining agreement. The statute of limitations will not begin to run unless or until Cyclops fails to meet a pension obligation to a union member. At that time, the Ohio limitations period for breach of contract will determine how long the union or one of its members has to institute a suit in a timely manner. See, e.g., International Union, UAW v. Hoosier Cardinal Corp., 383 U.S. 696, 703-04, 86 S.Ct. 1107, 1111-12, 16 L.Ed.2d 192 (1966); Apponi, 809 F.2d at 1216; Central States Southeast and Southwest Ar eas Pension Fund v. Kraftco, Inc., 799 F.2d 1098, 1107 (6th Cir.1986) (en banc). II. The ERISA Claims A. Breach of Fiduciary Duty Appellants claim that Cyclops’ sale of the coke plant and pension plan was accomplished through a breach of the fiduciary duty of the plan’s trustees, who are also Cyclops officers. While appellants’ brief does not separate the various fiduciary duty questions clearly, we believe that their allegations are based on three separate sets of facts: (1) insufficient funding of the New Boston plan; (2) Cyclops’ desire to avoid pension liabilities by a sale of the pension fund; and (3) concern over the potential insecurity of pension funding by New Boston. Appellants’ claims all stem from language found in 29 U.S.C. §§ 1103 and 1104. 29 U.S.C. § 1103(c)(1) provides in pertinent part that “the assets of a plan shall never inure to the benefit of any employer and shall be held for the exclusive purposes of providing benefits to participants in the plan and their beneficiaries and defraying reasonable expenses of administering the plan.” 29 U.S.C. § 1104(a)(1) provides in pertinent part that “a fiduciary shall discharge his duties with respect to a plan solely in the interest of the participants and beneficiaries and — (A) for the exclusive purpose of: (i) providing benefits to participants and their beneficiaries; and (ii) defraying reasonable expenses of administering the plan.” As an initial matter, we note that a corporation’s fiduciary duties under ERISA do not encompass all of its activities. See, e.g., Phillips v. Amoco Oil Co., 799 F.2d 1464, 1471 (11th Cir.1986) cert. denied, 481 U.S. 1016, 107 S.Ct. 1893, 95 L.Ed.2d 500 (1987) (“[T]he ERISA scheme envisions that employers will act in a dual capacity as both fiduciary to the plan and as employer. ERISA does not prohibit an employer from acting in accordance with its interests as employer when not administering the plan or investing its assets.”); Amato v. Western Union International, Inc., 773 F.2d 1402, 1417 (2d Cir.1985) (distinguishing decisions made as an employer from those made as a plan fiduciary). However, we believe that the fiduciary duty rules are applicable to the instant case. While the decision to sell the coke plant itself was a corporate decision that may have been outside of the scope of ERISA’s protective rules, there is no question that the sale of the pension plan to New Boston was a transaction that was of direct concern to the 227 workers who were transferred. As such, any decisions regarding the sale of the pension plan are subject to review under ERISA’s fiduciary duty standards. Appellants first claim that Cyclops’ failure to transfer pension fund assets that were sufficient to fully fund the plan violates the fiduciary duty provisions. Appellants make this claim despite the fact that both parties have stipulated that: On February 6, 1981, the Trustees of the Cyclops Hourly Plan transferred assets in the amount of $168,380.00 plus interest since October 31, 1980, to the bank designated in the agreement as the New Boston Plan Trustee. This sum represents the portion of Cyclops Hourly Plan assets which Cyclops’ actuaries, Towers, Perrin, Forster & Crosby (TPF & C), advised was allocable to the listed employees at the Cyclops Portsmouth facility, pursuant to the federal law governing contributions to pension plans. It is unclear in appellants’ brief whether they allege that this funding was, in fact, inadequate under ERISA or instead that the funding, although technically adequate, violates Cyclops’ fiduciary duty. We explore both claims. ERISA sets out the standard for the funding of merged, transferred or acquired pension plans in 29 U.S.C. § 1058: A pension plan may not merge or consolidate with, or transfer its assets or liabilities to, any other plan after September 2,1974, unless each participant in the plan would (if the plan then terminated) receive a benefit immediately after the merger, consolidation, or transfer which is equal to or greater than the benefit he would have been entitled to receive immediately before the merger, consolidation or transfer (if the plan had then terminated). The Secretary of the Treasury has promulgated a set of regulations, 26 C.F.R. § 1.414(I)-1, to determine whether a merger, sale or consolidation is appropriate. In order to apply these regulations to the instant case, we must determine whether the transfer of pension assets was (1) a merger or consolidation or (2) a transfer of assets or liabilities. 26 C.F.R. § 1.414(I)-l(b)(2) defines a merger or consolidation as “the combining of two or more plans into a single plan. A merger or consolidation will not occur merely because one or more corporations undergo a reorganization____” 26 C.F.R. § 1.414(I)-l(b)(3) defines a transfer of assets or liabilities as a situation “when there is a diminution of assets or liabilities with respect to one plan and the acquisition of these assets or the assumption of these liabilities by another plan.” Given the continued existence of both the Cyclops and New Boston Plan and the transfer of assets and liabilities from Cyclops to New Boston, it is clear that the transaction between the two parties was a transfer of assets or liabilities. 26 C.F.R. § 1.414(I)-l(o) dictates the procedure for determining the adequacy of funding in the case of a transfer of assets or liabilities, stating “[a]ny transfer of assets or liabilities will for purposes of section 414 [the Internal Revenue Code equivalent of 29 U.S.C. § 1058] (1) be considered as a combination of separate mergers and spinoffs using the rules of paragraphs (d), (e) through (j), (Z), (m), or (n) of this section, whichever is appropriate.” In this case, for the transaction to be valid under ERISA it must meet the requirements of 26 C.F.R. § 1.414(I)-1 sections (e) and (n). Section (n), which regulates spinoffs states: In the case of a spinoff of a defined benefit plan, the requirements of section 414(1) will be satisfied if (i) All of the accrued benefits of each participant are allocated to only one of the spun off plans, and (ii) The value of the assets allocated to each of the spun off plans is not less than the sum of the present value of the benefits on a termination basis in the plan before the spin off for all participants in that spun off plan. Section (e), which regulates mergers, uses virtually identical language. While the Cyclops plan did not have sufficient assets to cover the present value of all accrued benefits, it was still permitted to spin off the 227 participants and then merge them with the New Boston plan under sections (e) and (n) because the regulation merely requires that assets equal the value of benefits calculated on a termination basis. This term is defined at 26 C.F.R. § 1.414(I)-l(b)(5) as “benefits that would be provided exclusively by the plan assets pursuant to section 4044 [Codified at 29 U.S.C. § 1344] of the Employee Retirement Income Security Act of 1974 (“ERISA”) and the regulations thereunder if the plan terminated.” 29 U.S.C. § 1344 sets out the order in which benefits are to be paid when a plan terminates. It provides that in the case of underfunding, assets are to be allocated according to prioritized categories. Since a merged or spunoff plan must only be capable of paying benefits on a termination basis, it is not significant that fund assets are currently smaller than the present value of accrued benefits. ERISA does not require that assets be equivalent to liabilities at the time of transfer, only that the transfer is not used as an excuse to undercut the funding of a protected plan. In truth, we believe this to be the principal concern of plaintiffs here. The concern is legitimate and deserving of our most careful scrutiny. Nevertheless, we conclude that its resolution cannot be based upon unresolved speculation over future payment of benefits. The actuarial statement regarding the transfer of assets and liabilities of the Cyclops plan concluded that since “the total present value of Category 3 benefits exceeded the fair market value of the Plan’s assets as of September 30, 1980, such assets were allocated to Coke Plant Employees- in proportion to their Category 3 present values.” As the parties have stipulated to the fact that the actuarial calculations were correct, and it is clear that those calculations determined the termination basis value of the Cyclops plan, we find that there was no violation of 29 U.S.C. § 1058 in the transfer of assets to New Boston. While Cyclops has complied with the provisions of section 1058, it may be still possible for appellants to claim that technical compliance which leaves the New Boston employees without adequate funding is a breach of fiduciary duty. However, appellants fail to cite any precedent on this question. Further, we have found several cases in which pension plan assets and liabilities were transferred to another plan without making provision for the pro r Question: What is the total number of appellants in the case? Answer with a number. 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. TCHEREPNIN et al. v. KNIGHT et al. No. 104. Argued November 13, 1967. Decided December 18, 1967. Arnold I. Shure argued the cause for petitioners. With him on the briefs were Anthony Bradley Eben, Solomon Jesmer and Robert A. Sprecher. Stuart D. Perlman, Assistant Attorney General of Illinois, argued the cause for respondents Knight et al. With him on the brief were William G. Clark, Attorney General, Richard E. Friedman, First Assistant Attorney General, and John J. O’Toole, Assistant Attorney General. 'Charles J. O’Laughlin argued the cause for respondents City Savings Association et al. With him on the brief was Albert E. Jenner, Jr. Kinsey T. James filed a memorandum for respondent Mensik. Philip A. Loomis, Jr., argued the cause for the Securities and Exchange Commission, as amicus curiae, urging reversal. With him on the briefs were Solicitor General Griswold, Ralph S. Spritzer, David Ferber and Richard E. Nathan. Opinion of the Court by Mr. Chief Justice Warren, announced by Mr. Justice Brennan. The narrow question for decision in this case is whether a withdrawable capital share in an Illinois savings and loan association is a “security” within the meaning of the Securities Exchange Act of 1934, 48 Stat. 881, 15 U. S. C. § 78a et seq. The petitioners are a number of individuals holding withdrawable capital shares in City Savings Association of Chicago, a corporation doing business under the Illinois Savings and Loan Act. On July 24, 1964, they filed a class action in the United States District Court for the Northern District of Illinois, alleging that the sales of the shares to them by City Savings were void under § 29 (b) of the Securities Exchange Act of 1934, 15 U. S. C. § 78ec (b), and asking that the sales be rescinded. Named as defendants in the complaint were City Savings, its officers and directors, two state officials who had taken custody of the Association, and three individuals named as liquidators by the Association’s shareholders in voting a voluntary plan of liquidation. The complaint alleged that the withdrawable capital shares purchased by the petitioners were securities within the meaning of §3 (a) (10) of the Securities Exchange Act, that the petitioners had purchased such securities in reliance upon printed solicitations received from City Savings through the mails, and that such solicitations contained false and misleading statements in violation of § 10 (b) of the Securities Exchange Act and of Rule 10b-5 adopted thereunder by the Securities and Exchange Commission. More specifically, the complaint alleged that the mailed solicitations portrayed City Savings as a financially strong institution and its shares as desirable investments. But the solicitations failed to disclose, inter alia, that the Association was controlled by an individual who had been convicted of mail fraud involving savings and loan associations, that the Association had been denied federal insurance of its accounts because of its unsafe financial policies, and that the Association had been forced to restrict withdrawals by holders of previously purchased shares. The respondents filed motions to dismiss on the ground that the complaint failed to state a cause of action under § 10 (b) because the petitioners’ with-drawable capital shares were not securities within the meaning of the Securities Exchange Act. The District Court denied the motions to dismiss, ruling that the petitioners’ shares fell within the Act’s definition of securities. However, recognizing that the ruling “involves a controlling question of law as to which there is substantial ground for difference of opinion,” the District Court certified its order for an interlocutory appeal to the Court of Appeals for the Seventh Circuit under 28 U. S. C. § 1292 (b). The Court of Appeals, with one judge dissenting, agreed with respondents that the with-drawable capital shares issued by City Savings did not fit the definition of securities in §3 (a) (10) of the Securities Exchange Act. Consequently, it ruled that the District Court was without jurisdiction in the case, and it remanded with instructions to dismiss the complaint. 371 E. 2d 374. Because this case presents an important question concerning the scope of the Securities Exchange Act, we granted certiorari. 387 U. S. 941. We disagree with the construction placed on § 3 (a) (10) by the Court of Appeals, and we reverse its judgment. Section 3 (a) (10) of the Securities Exchange Act of 1934 provides: “3. (a) When used in this title, unless the context otherwise requires— “(10) The term ‘security’ means any note, stock, treasury stock, bond, debenture, certificate of interest or participation in any profit-sharing agreement or in any oil, gas, or other mineral royalty or lease, any collateral-trust certificate, preorganization certificate or subscription, transferable share, investment contract, voting-trust certificate, certificate of deposit, for a security, or in general, any instrument commonly known as a ‘security’; or any certificate of interest or participation in, temporary or interim certificate for, receipt for, or warrant or right to subscribe to or purchase, any of the foregoing; but shall not include currency or any note, draft, bill of exchange, or banker’s acceptance which has a maturity at the time of issuance of not exceeding nine months, exclusive of days of grace, or any renewal thereof the maturity of which is likewise limited.” This case presents the Court with its first opportunity to construe this statutory provision. But we do not start with a blank slate. The Securities Act of 1933 (48 Stat. 74, as amended) contains a definition of security virtually identical to that contained in the 1934 Act. Consequently, we are aided in our task by our prior decisions which have considered the meaning of security under the 1933 Act. In addition, we are guided by the familiar canon of statutory construction that remedial legislation should be construed broadly to effectuate its purposes. The Securities Exchange Act quite clearly falls into the category of remedial legislation. One of its central purposes is to protect investors through the requirement of full disclosure by issuers of securities, and the definition of security in § 3 (a) (10) necessarily determines the classes of investments and investors which will receive the Act’s protections. Finally, we are reminded that, in searching for the meaning and scope of the word “security” in the Act, form should be disregarded for substance and the emphasis should be on economic reality. S. E. C. v. W. J. Howey Co., 328 U. S. 293, 298 (1946). Because City Savings’ authority to issue withdrawable capital shares is conferred by the Illinois Savings and Loan Act, we look first to the legal character imparted to those shares by that statute. The issuance of with-drawable capital shares is one of two methods by which Illinois savings and loan associations are authorized to raise capital. City Savings’ capital is represented exclusively by withdrawable capital shares. Each holder of a withdrawable capital share becomes a member of the association and is entitled to “the vote of one share for each one hundred dollars of the aggregate withdrawal value of such accounts, and shall have the vote of one share for any fraction of one hundred dollars.” The holders of withdrawable capital shares are not entitled to a fixed rate of return. Rather, they receive dividends declared by an association’s board of directors and based on the association’s profits. The power of a holder of a withdrawable capital share to make voluntary withdrawals is restricted by statute While withdrawable capital shares are declared nonnegotiable and not subject to Article 8 of the Uniform Commercial Code, such shares can be transferred “by written assignment accompanied by delivery of the appropriate certificate or account book.” While Illinois law gives legal form to the withdrawable capital shares held by the petitioners, federal law must govern whether shares having such legal form constitute securities under the Securities Exchange Act. Even a casual reading of §3 (a) (10) of the 1934 Act reveals that Congress did not intend to adopt a narrow or restrictive concept of security in defining that term. As this Court observed with respect to the definition of security in § 2 (1) of the Securities Act of 1933, “the reach of the Act does not stop with the obvious and commonplace.” S. E. C. v. C. M. Joiner Corp., 320 U. S. 344, 351 (1943). As used in both the 1933 and 1934 Acts, security “embodies a flexible rather than a static principle, one that is capable of adaptation to meet the countless and variable schemes devised by those who seek the use of the money of others on the promise of profits.” S. E. C. v. W. J. Howey Co., supra, at 299. We have little difficulty fitting the withdrawable capital shares held by the petitioners into that expansive concept of security. Of the several types of instruments designated as securities by §3 (a) (10) of the 1934 Act, the petitioners’ shares most closely resemble investment contracts. “The test [for an investment contract] is whether the scheme involves an investment of money in a common enterprise with profits to come solely from the efforts of others.” Id., at 301. Petitioners are participants in a common enterprise— a money-lending operation dependent for its success upon the skill and efforts of the management of City Savings in making sound loans. Because Illinois law ties the payment of dividends on withdrawable capital shares to an apportionment of profits, the petitioners can expect a return on their investment only if City Savings shows a profit. If City Savings fails to show a profit due to the lack of skill or honesty of its managers, the petitioners will receive no dividends. Similarly, the amount of dividends the petitioners can expect is tied directly to the amount of profits City Savings makes from year to year. Clearly, then, the petitioners’ withdrawable capital shares have the essential attributes of investment contracts as that term is used in § 3 (a) (10) and as it was defined in Howey. But we need not rest our decision on that conclusion alone. “Instruments may be included within any of [the Act’s] definitions, as matter of law, if on their face they answer to the name or description.” S. E. C. v. C. M. Joiner Corp., supra, at 351. The petitioners’ shares fit well within several other descriptive terms contained in §3 (a) (10). For example, the petitioners’ shares can be viewed as “certificate [s] of interest or participation in any profit-sharing agreement.” The shares must be evidenced by a certificate, and Illinois law makes the payment of dividends contingent upon an apportionment of profits. These same factors make the shares “stock” under § 3 (a) (10). Finally, the petitioners’ shares can be considered “transferable share[s]” since “[t]he holder of a withdrawable capital account may transfer his rights therein absolutely or conditionally to any other person eligible to hold the same.” Our conclusion that a withdrawable capital share is a security within the meaning of § 3 (a) (10) is reinforced by the legislative history of federal securities legislation. When Congress was considering the Securities Act of 1933, representatives of the United States Building and Loan League appeared before House and Senate committees to plead the cause of the League’s members. The League’s spokesmen asked Congress for an exemption from the Act’s registration requirements for building and loan association shares. The spokesmen argued that the cost of complying with the registration, requirements whenever a building and loan association issued a new share would be prohibitive. However, the League’s spokesmen emphatically endorsed the coverage of building and loan associations under the Act’s antifraud provisions. Thus, Morton Bodfish, the League’s Executive Manager, told the House Committee on Interstate and Foreign Commerce: “When a person saves his money in a building and loan association, he purchases shares and nearly all of our $8,000,000,000 of assets are in the form of shares .... “The practical difficulties of an association having to register every issue of shares . . . are obvious. “[W]e approve vigorously and are quite willing to be subject to section 13, which is the fraud section . . . , “Now, gentlemen, we want you to leave, the fraud sections there, just as they are, so that [if] any fraud developed in connection with the management of any of our institutions anywhere or under the name of building and loan, this law can be effective and operative.” Congress responded to the appeals from the building and loan interests by including in §3 (a)(5) of the 1933 Act an exemption from the registration requirements for “[a]ny security issued by a building and loan association, homestead association, savings and loan association, or similar institution . . . .” It seems quite apparent that the building and loan interests would not have sought an exemption from the registration requirements and Congress would not have granted it unless there was general agreement that the Act's definition of security in § 2 (1) brought building and loan shares within the purview of the Act. The same Congress which passed the Securities Act in 1933 approved the Securities Exchange Act in 1934, and the definition of security contained in the 1934 Act is virtually identical to that in the earlier enactment. The legislative history of the 1934 Act is silent with respect to savings and loan shares, but the Senate Report on the Act asserts that its definition of security was intended to be “substantially the same as [that contained] in the Securities Act of 1933.” S. Rep. No. 792, 73d Cong., 2d Sess., 14 (1934). In addition, when Congress amended the 1934 Act in 1964 to provide for the registration of certain equity securities, it provided an exemption for “any security . . . issued by a savings and loan association . . . .” 15 U. S. C. § 781 (g)(2)(C). Thus, the 1934 Act has a pattern of coverage and exemption of savings and loan shares similar to the pattern in the 1933 Act. We view the Court of Appeals’ conclusion that the petitioners’ withdrawable capital shares are not securities as a product of misplaced emphasis. After reviewing the definition of security in §3(a) (10), the Court of Appeals stated that “[t]he type of interest now before us, if it is covered by this definition, must be an ‘instrument commonly known as a “security.” ’ ” 371 F. 2d, at 376. Thus, the Court of Appeals read the words an “instrument commonly known as a ‘security’ ” in § 3 (a) (10) as a limitation on the other descriptive terms used in the statutory definition. This, of course, is contrary to our decision in Joiner where we rejected the respondents’ invitation to “constrict the more general terms substantially to the specific terms which they follow.” 320 U. S., at 350. In addition, we cannot agree with the Court of Appeals’ analysis which led it to conclude that a withdrawable capital share is not an “instrument commonly known as a ‘security.’ ” For example, the Court of Appeals stressed that withdrawable capital shares can be issued in unlimited amounts and their holders have no pre-emptive rights. Yet the same is true of shares in mutual funds, and we have little doubt that such shares are securities within the meaning of the Securities Exchange Act. The Court of Appeals also emphasized that the withdrawable capital shares are made nonnegotiable by Illinois law. This simply reflects the fact that such shares are not a usual medium for trading in the markets. The same can be said for the types of interests which we found to be securities in Howey and Joiner. The Court of Appeals noted further that the holders of withdrawable capital shares are not entitled under Illinois law to inspect the general books and records of the association. Inspection of that nature, however, is not a right which universally attaches to corporate shares. In short, the various factors highlighted by the Court of Appeals in concluding that the withdrawable capital shares are not an “instrument commonly known as a ‘security’ ” serve only to distinguish among different types of securities. They do not, standing alone, govern whether a particular instrument is a security under the federal securities laws. The Court of Appeals thought it highly significant that the term “evidence of indebtedness” appears in the definition of security in the 1933 Act but was omitted from the definition in the 1934 Act. We cannot agree that the omission has any controlling significance in this case. For one thing, we have found other descriptive terms in § 3 (a)(10) which cover the petitioners’ withdrawable capital shares. The Court of Appeals’ emphasis on the omission of “evidence of indebtedness” from §3 (a) (10) flowed from its conclusion that the petitioners’ “relationship with the enterprise is much more that of debtor-creditor than investment.” 371 F. 2d, at 377. That assertion, however, overlooks the fact that, under Illinois law, the holder of a withdrawable capital share does not become a creditor of a savings and loan association even when he files an application for withdrawal. For this reason alone, the omission of the term “evidence of indebtedness” from § 3 (a) (10) provides no basis for concluding that Congress intended to exclude the petitioners’ withdrawable capital shares from the Act’s coverage. The Court of Appeals sought a policy basis for its decision when it noted that the federal securities laws “were passed in the aftermath of the great economic disaster of 1929. Congress was concerned with speculation in securities which had a fluctuating value and which were traded in securities exchanges or in over-the-counter markets.” 371 F. 2d, at 377. This statement suggests, and the respondents have argued in this Court, that the petitioners’ withdrawable capital shares are not within the purview of the 1934 Act because their value normally does not fluctuate and because they are normally not traded in securities exchanges or over-the-counter. The accuracy of this assertion is open to question.. But, more important, it is irrelevant to the question before us. As was observed in Howey, “it is immaterial whether the enterprise is speculative or non-speculative.” 328 U. S., at 301. Policy considerations lead us to conclude that these petitioners are entitled to the investor protections afforded by the Securities Exchange Act. We agree fully with the following observations made by Judge Cummings in his dissent below: “The investors in City Savings were less able to protect themselves than the purchasers of orange groves in Howey. These [petitioners] had to rely completely on City Savings’ management to choose suitable properties on which to make mortgage loans. . . . The members of City Savings were widely scattered. Many of them probably invested in City Savings on the ground that their money would be safer than in stocks. . . . Because savings and loan associations are constantly seeking investors through advertising . . . the SEC’s present tender of its expert services should be especially beneficial to would-be savings and loan investors as a shield against unscrupulous or unqualified promoters.” 371 F. 2d, at 384-385. The respondents have argued that we should not declare the petitioners’ withdrawable capital shares securities under §3(a)(10) because the petitioners, if they are successful in their suit for rescission, will gain an unfair advantage over other investors in City Savings in the distribution of the limited assets of that Association, which is now in liquidation. This argument, at best, is a non sequitur. This case in its present posture involves no issue of priority of claims against City Savings. This case involves only the threshold question of whether a federal court has jurisdiction over the complaint filed by the petitioners — a question which turns on our construction of the term “security” as defined by § 3 (a) (10) of the Securities Exchange Act of 1934. It is totally irrelevant to that narrow question of statutory construction that these petitioners, if they are successful in their federal suit, might have rights in the limited assets of City Savings superior to those of other investors in that Association. Reversed. Mr. Justice Marshall took no part in the consideration and decision of this case. Ill. Rev. Stat., c. 32, §§ 701-944. The members of the class were identified in the complaint as “more than 5,000 investors [who] have purchased securities [i. e., withdrawable capital shares] of City Savings since July 23, 1959 . . . The total investment of the class members was alleged to amount to “between fifteen and twenty million dollars.” The state officials had acted under the authority of Ill. Rev. Stat., c. 32, § 848. The record does not disclose the precise reason for placing City Savings under state custody. However, the complaint filed in the District Court and the petitioners’ brief in this Court suggest that City Savings has been the victim of mismanagement of major proportions. The voluntary plan of liquidation was formally approved four days after the petitioners had filed their complaint. However, the three liquidators had been nominated prior to the filing of the complaint, and their election had been a foregone conclusion. Voluntary liquidation is authorized bj' Ill. Rev. Stat., e. 32, Art. 9. 15 U. S. C. §78e (a) (10). 15 TJ. S. C. §78j (b). 17 CFR § 240.10b-5. “2. When used in this title, unless the context otherwise requires— “(1) The term ‘security’ means any note, stock, treasury stock, bond, debenture, evidence of indebtedness, certificate of int'erest or partieipation in any profit-sharing agreement, collateral-trust certificate, preorganization certificate or subscription, transferable share, investment contract, voting-trust certificate, certificate of deposit for a security, fractional undivided interest in oil, gas, or other mineral rights, or, in general, any interest or instrument commonly known as a ‘security’. . . .” 48 Stat. 905. S. E. C. v. United Benefit Life Ins. Co., 387 U. S. 202 (1967); 8. E. C. v. Variable Annuity Life Ins. Co., 359 U. S. 65 (1959); S. E. C. v. W. J. Howey Co., 328 U. S. 293 (1946); and S. E. C. v. C. M. Joiner Corp., 320 U. S. 344 (1943). The Securities Exchange Act was a product of a lengthy and highly publicized investigation by the Senate Committee on Banking and Currency into stock market practices and the reasons for the stock market crash of October 1929. See Loomis, The Securities Exchange Act of 1934 and the Investment Advisers Act of 1940, 28 Geo. Wash. L. Rev. 214, 216-217 (1960). “The capital of an association may be represented by with-drawable capital accounts (shares and share accounts) or permanent reserve shares, or both . . . Ill. Rev. Stat., c. 32, § 761 (a). “Permanent reserve shares shall constitute a secondary reserve out .of which losses shall be paid after all other available reserves have been exhausted . . . .” Id., § 763. Id., §741 (a)(1). Id., §742 (d)(2). Each borrower from a savings and loan association automatically becomes a member of the association, id., §741 (a)(2), but is entitled to only one vote, id., §742 (d)(4). Id., §778 (c). The directors are required to apportion an association’s profits at least annually. Id., §773. Id., §768 (c). Id., §768 (b). Cf. S. E. C. v. Variable Annuity Life Ins. Co., 359 U. S. 65, 69. “[T]he term 'security’ [in the Securities Act of 1933 is defined] in sufficiently broad and general terms so as to include within that definition the many types of instruments that in our commercial world fall within the ordinary concept of a security.” H. It. Rep. No. 85, 73d Cong., 1st Sess., 11 (1933). Ill. Rev. Stat., c. 32, § 778. The Court of Appeals refused to apply the Howey test in this case. It did not view the petitioners as entering a common enterprise with profits to come solely from the efforts of others because “profit is derived from loans to other members of the savings and loan association.” 371 F. 2d, at 377. That analysis, however, places too much emphasis on the fact that, under Illinois law, anyone who borrows from a savings and loan association automatically becomes a member of the association. Ill. Rev. Stat., c. 32, § 741 (a) (2). It also overlooks the several other classes of investments which Illinois savings and loan associations are authorized to make. Id,., §§ 792-792.10. Id., §768 (a). Id., § 768 (b). Hearings on H. H. 4314 before the House Committee on Interstate and Foreign Commerce, 73d Cong., 1st Sess., 70-75 (1933) (testimony of Morton Bodfish, Executive Manager, United States Building and Loan League); Hearings on S. 875 before the Senate Committee on Banking and Currency, 73d Cong., 1st Sess., 50-54 (1933) (testimony of C. Clinton James, Chairman, Federal Legislative Committee of the United States Building and Loan League). Hearings on H. B.. 4314, supra, at 71. Id,., at 73. Id., at 74. 15 U. S. C. §77e (a) (5). The view expressed by the building and loan association interests in 1933 has not changed over the years. The United States Savings and Loan League, in its Membership Bulletin, made the following comments on the Court’s decision to hear this case: “This case is not necessarily as significant and earth shaking in its implications as many savings and loan people assume. In the first place the savings and loan business always has assumed that it was subject to the antifraud provisions of the Securities Acts relating to advertising practices, etc. Regardless of how this case goes it does not mean that savings and loan associations will be any more involved with the SEC than they have been in the past. It does not mean that associations would have to register with the SEC and be subject to all of the rules that apply to typical securities transactions.” United States Savings and Loan League, Membership Bulletin, June 28, 1967, p. 15. The Court of Appeals rejected the view that we take of the legislative history of federal securities legislation with respect to savings and loan association shares. In effect, the Court of Appeals viewed Congress’ exemption of savings and loan shares from the registration requirements as what Professor Loss calls “supererogation.” 1 Loss, Securities Regulation 497 (2d ed. 1961). The Court of Appeals based its argument on the analogy it drew between ordinary insurance policies, which are also exempted from the 1933 Act’s registration provisions, and savings and loan shares. The analogy, however, is inappropriate. Congress specifically stated that “insurance policies are not to be regarded as securities subject to the provisions of the act,” H. R. Rep. No. 85, 73d Cong., 1st Sess., 15 (1933), and the exemption from registration for insurance policies was clearly supererogation. See S. E. C. v. Variable Annuity Life Ins. Co., 359 U. S. 65, 74, n. 4. The same cannot be said for savings and loan shares, particularly when the spokesmen for those who issue savings and loan shares had told Congress they fully expected to be covered by the 1933 Act’s antifraud provisions. In Howey, this Court ruled that interests in orange groves were securities under the 1933 .Act. In Joiner, it held that oil leases were securities under the Act. See Baker & Cary, Cases and Materials on Corporations 739-741 (3d ed. 1958). Ill. Rev. Stat., c. 32, §773 (f). The SEC, in its brief amicus curiae submitted in this case, points out that it granted a temporary exemption from §§ 7, 8, 12, and 13 of the 1934 Act to passbooks of savings and loan associations, which were being traded on the Cleveland Stock Exchange shortly after the Act’s passage. The SEC also points out that it has repeatedly enforced the Act’s registration provisions against brokers and dealers whose business includes the solicitation of funds for deposit in savings and loan associations. Brief for the SEC 22-24. 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_district
A
What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable". HELLEBUSH v. COMMISSIONER OF INTERNAL REVENUE. No. 6254. Circuit Court of Appeals, Sixth Circuit. June 29, 1933. Frank S. Bright, of Washington, D. C. (H. Stanley-Hinriehs, of Washington, D. C., on the brief), for petitioner. Helen R. Carloss, of Washington, D. C. (G. A. Youngquist, Sewall Key, C. M. C'har-est, and Thos. F. Callahan, all of Washington, D. C., on the brief), for respondent. Before MOORMAN, HICKS, and SI-MONS, Circuit Judges. HICKS, Circuit Judge. Petition by F. A. Hellebush to review the decision of the Board of Tax Appeals (24 B. T. A. 661) affirming the action of the Commissioner of Internal Revenue in assessing on redetermination against him as the transferee of the Blackburn Varnish Company deficiencies in income and profits taxes in the sum of $12,303.42 for the period from January 1, 1927, to April 19, 1927. The case isi before us upon the findings of fact by the Board. The Blackburn Varnish Company, an Ohio corporation, had for many years prior to the taxable year 1927 conducted a successful business. In the spring of that year its stockholders decided that they would quit business and liquidate-the corporation. The nephew of one of its stockholders was an official of the Cook Paint & Varnish Company, a Missouri corporation. Through this nephew negotiations were opened for its sale to the Cook Company, which negotiations were thereafter carried on on behalf of the Blackburn Company by its president, Helle-bush, and its secretary-treasurer, Lippleman. The negotiations finally resulted in Cook, president of the Cook Company, coming to Cincinnati, the home office of the Blackburn Company, where the deal was closed on April 20,1927, and on that date the following steps were taken to consummate it: First, there was a special meeting of all the stockholders of the Blackburn Company in person or by proxy at whieh a resolution was unanimously adopted authorizing the dissolution and liquidation of the company and the conveyance of its assets to Hellebush and Lippleman as trustees for the stockholders with full powers to dispose of the company’s property. The resolution further directed these trustees after “final liquidation” and deduction of expenses to distribute all remaining property or proceeds in kind pro rata to the stockholders and contained an instruction to the officers of the company to take the necessary steps to procure its dissolution and the conveyance of its property to the trustees. Second, following the stockholders’ meeting on the same day, the officers of the Black-hum Company “in consideration of the sum of one dollar ($1.09) and other good and valuable considerations” executed a bill of sale of all the personal property of the Black-hum Company to the above named trustees for the stockholders, and the corporation by its proper officers likewise on the same day executed and delivered to these trustees, designating them as trastees for the stockholders, its deed conveying to them its real estate in fee simple. Third, on the same day an agreement was executed for the sale to the Cook Company of all the assets to whieh Hellebush and Lippleman, as trustees for the stockholders, had received title from the Blackburn Varnish Company. It was signed by the trustees and by Cook, president of the Cook Company, and by the Southern Ohio Savings Bank & Trust Company, escrow agent. The instrument recited that the trustees agreed to convey all property of whatever kind or nature' whieh they had received from the Blackburn Company except cash and accounts and hills receivable and further recited the concurrent delivery of a deed to the real estate and of an instrument of conveyance of all other property to the escrow agent for whieh a deposit of the sum of $100,000 on the purchase price was made. The Cook Company agreed to use reasonable diligence to collect the outstanding accounts and bills receivable and to account weekly therefor to the trastees. The entire consideration paid by the Cook Company was $269,175.82. Existing liabilities against the Blackburn Company, amounting to $9,000, were paid by the trustees prior to the dissolution of the Blackburn Company which took place on June 2, 1927. Respondent fixed the capital gain accruing to the seller on these transactions at $85,-530.86, being the difference between the selling price of $269,175.82 and the hook value of the assets sold, $183,644.96. The tax on the capital gain was ascertained to be $12,-303.42 and is the amount in dispute. Petitioner concedes that if the Blackburn Company is liable for the tax he is liable as a transferee. Sections 213 and 233 of the Revenue Act of 1926, 44 Stat. 9, ch. 27 (26 USCA §§ 954, 985) provide that the gross income of corporations shall include gains derived from sales of, or dealings in, property. The applicable Treasury ruling is article 548 of Regulation 69, printed in the margin. The provisions of this Regulation have been incorporated in the regulations for all of the Revenue Acts since the Act of 1918. Congress has not .seen fit to change it and we think it should now be given effect. Heiner v. Colonial Trust Co., 275 U. S. 232, 48 S. Ct. 65, 72 L. Ed. 256; Universal Battery Co. v. U. S., 281 U. S. 580, 50 S. Ct. 422, 74 L. Ed. 1051. It has been specifically upheld in Taylor Oil & Gas Co. v. Comm’r, 47 F.(2d) 108 (C. C. A. 5). So the question here is, whether under this regulation when applied to the facts above set forth, there was a distribution of the assets of the Blackburn Company in kind to its stockholders upon dissolution and a sale of the assets by the stockholders through the trustees to the Cook Company, or whether the sale should he treated as a sale by the corporation. We think it is clear that there was no distribution in kind, in the sense of a division, of the assets of the Blackburn Company to its stockholders on April 20, 1927, the date of the resolution appointing the trustees for the stockholders. Neither was there any distribution in kind to the stockholders “upon dissolution” whieh took place on June 2, 1927, by the filing of a certificate of abandonment or dissolution with the secretary of state of Ohio as provided by section 8741 of the Ohio General Code. Moreover the stockholders did not have power to appoint trustees to settle the affairs of the Blackburn Company and divide its property among the stockholders, until after the formal dissolution on June 3, 1937. See section 8742, Ohio General Code, supra. Until that date the Blackburn Company, like corporations generally, had exclusive power to act for itself. The stockholders’ resolution of April 20, 1927, seemed to recognize this for it undertook to authorize and direct the officers of the Blackburn Company to take such legal steps as were necessary and proper to procure its dissolution. The utmost that can be said for this resolution is that it constituted an agreement between the stockholders upon a procedure with which they were themselves eon-tented and through which the Blackburn Company could sell its property. However satisfactory and unobjectionable this arrangement may have been as between themselves [Chattanooga Savings Bank v. Brewer, 9 F.(2d) 982, 989 (D. C.) ] it could not impair the right of the Commissioner to challenge its validity for purposes of taxation. The law will look through forms to substance [U. S. v. Phellis, 257 U. S. 156, 42 S. Ct. 63, 66 L. Ed. 180; Board v. Comm’r, 51 F.(2d) 73, 75 (C. C. A. 6)] and will recognize the outstanding fact, that the Cook Company had thereby acquired the property and assets of the Blackburn Company just as was contemplated before the stockholders’ meeting on April 20th. We think that this was a sale by one company to the other upon the profits of which the government was entitled to its taxes. The order of the Board of Tax Appeals is therefore affirmed. "Art. 548. Gross income of corporation in liquidation. — When a corporation is dissolved, its affairs are usually wound up by a receiver or trustees in dissolution.. The corporate existence is continued for the purpose of liquidating the assets and paying the debts, and such receiver or trustees stand in the stead of the corporation for such purposes. (See section 282 and articles 1293 and 1294.) Any sales of property by them are to be treated as if made by the corporation for the purpose of ascertaining the gain or loss. No gain or loss is realized by a corporation from the mere distribution of its assets in kind upon dissolution, however they may have appreciated or depreciated in value since their acquisition,” 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_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. John Jeff LaGORGA, a minor, by Joseph LaGorga, his guardian and Joseph LaGorga and Bernadette LaGorga v. The KROGER COMPANY, a corp., Defendant and third-party plaintiff, v. Sidney H. EVANS, Individually and trading and doing business as Evans Manufacturing Co., and Evans Manufacturing Company, Incorporated, third-party defendant. The Kroger Company, third-party plaintiff, Appellant. No. 17082. United States Court of Appeals Third Circuit. Argued Dec. 19, 1968. Decided March 3, 1969. Bruce R. Martin, Pittsburgh, Pa., for appellant. • Wallace E. Edgecombe, Royston, Robb, Leonard, Edgecombe, Miller & Shorrall, Pittsburgh, Pa., for appellee. Before SEITZ, ALDISERT and STAHL, Circuit Judges. OPINION OF THE COURT PER CURIAM. This is an appeal challenging the special verdict in a third party action and the judgment entered thereon. In January, 1965, John Jeff LaGorga, a minor, by Joseph LaGorga, his guardian, and Joseph LaGorga and Bernadette LaGorga brought suit against the Kroger Co. to recover damages arising from injuries allegedly suffered when a jacket purchased from the Kroger Co. and worn by the minor plaintiff caught fire and burned. Kroger Company filed a third party complaint against Sidney H. Evans, individually and doing business as Evans Manufacturing Company (Evans) and against Evans Manufacturing Company, Inc. (Evans, Inc.), hereafter referred to collectively as “appellees.” In the original third party complaint, Kroger charged, inter alia, “Certain jackets identical to the one alleged by the plaintiffs to have been purchased from The Kroger Co. were purchased from and manufactured by appellees.” The third party defendants answered, and denied the charge “as stated” and more specifically averred as a first defense, that (1) Evans, Inc. had not manufactured the jacket in question; (2) Evans had sold certain jackets to the Kroger Co. and (3) Evans “has no knowledge as to whether or not the jacket allegedly worn by the minor plaintiff had been supplied to [The Kroger Co.] by [Evans].” The Kroger Co. (appellant), in an effort to tie the third party defendants to the jacket in question, amended its complaint in October, 1965, to allege, inter alia: “If it is established at the trial that the jacket involved was sold by The Kroger Co. * * * then said jacket was manufactured by and was purchased from Evans Manufacturing Co., also known as Evans Manufacturing Company, Incorporated, or as Sidney H. Evans, individually and trading and doing business as Evans Manufacturing Co.” Appellees did not file an answer to the amended complaint. At trial Kroger took the position that pursuant to Rule 8(d) of the Federal Rules of Civil Procedure, the unanswered allegation of the amended complaint amounted to an admission by the appellees that they manufactured the jacket in question. At the close of Kroger’s case, the district court, on Kroger’s motion and over appellees’ objection, admitted the admission into evidence. Immediately thereafter, counsel for the appellees announced, in his opening statement, that the appellees’ would prove that they had not manufactured the jacket worn by the minor plaintiff. Appellant unsuccessfully objected that the appellees had admitted parentage, i. e., manufacturing the jacket. At the close of the appellees’ case, on appellees’ motion, the “conditional admission” was stricken from evidence. The jury returned a verdict against Kroger in the main suit. In the third party action, by special interrogatories, the jury found that the appellees had not manufactured the jacket worn by the minor plaintiff. Kroger moved for a new trial, which motion was denied. LaGorga v. Kroger Company, 275 F.Supp. 373, 383 (W.D.Pa., 1967). Kroger now appeals from the special verdict in the third party action and the judgment entered thereon. Appellant’s challenge is predicated on its contention that, as against appellant, the appellees admitted- manufacturing the jacket in question when they failed to file an appropriate response to appellant’s amended third party complaint and the district court erred in deciding to the contrary. The district court found that the allegations concerning the parentage issue in the original third party complaint and in the amended third party complaint were substantially the same. Thus, it concluded that appellees’ denial in their answer to the original complaint served equally to deny the averment in the amendment. Appellant attacks the district court’s premise of substantial similarity. The attack lacks merit. It is true, as the appellant urges, that in the amended third party complaint appellees were charged with manufacture of the particular jacket worn by the minor plaintiff, while the original complaint merely alleged that the appellees had manufactured jackets identical to the one in question. However, appellees did not in their first defense address themselves to the failure of the original complaint to charge them with the manufacture of the jacket in question. Instead, their answer had the effect of denying that the appellees manufactured the jacket. While it would have been preferable for the appellees to respond directly to the amended complaint, in the circumstances of this case, the failure to specifically respond did not result in an admission under Rule 8(d) F.R.C.P. Concededly, and as the district court observed, appellant could have been misled by the absence of a specific response to the amended complaint. However, any possible confusion generated in appellant’s mind by the absence of a specific response, should have been dispelled by the pretrial stipulation which appellant’s counsel signed and which antedated the trial by some 7 months. In addition to the foregoing, the appellant’s conduct at trial belies any contention that the appellant was surprised to its prejudice when the trial of the third party action focused on the issue of parentage. To the contrary, it was the appellant who introduced the issue when it called Jack Piet, in its case in chief, for, in the words of appellant’s counsel, “ * * * the very narrow purpose of proving from whom these jackets came.” In these circumstances, accepting appellant’s contention would be to reject the well established principle that, under the federal rules pleading is a vehicle “ 'to facilitate a proper decision on the merits’ ” and not “ ‘a game of skill in which one misstep by counsel may be decisive * * * United States v. Hougham, 364 U.S. 310, 317, 81 S.Ct. 13, 18, 5 L.Ed.2d 8 (1960). Beyond the challenge just discussed, appellant also contends that the district court erred when, at the close of all the testimony, it struck from evidence the paragraph of the amended complaint which appellant had previously introduced as an admission. Fatal to appellant’s contention is our approval of the district court’s determination that there was no admission. It is significant also that, although appellant’s counsel vigorously opposed the motion to strike, and moved for a mistrial when the district court granted the motion,' he neither asked for a continuance to produce further evidence, nor did he ask leave to reopen his case to offer additional testimony or documentary evidence at that time. Accordingly, the judgment of the district court will be affirmed. . The pertinent parts of the pretrial stipulation are set forth in the district court opinion. LaGorga v. Kroger, supra, p. 385, n. 24. 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_r_subst
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 "sub-state governments, their agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. Earline WHISENANT, individually and as tutrix of her minor children, Sheila Dianne Whisenant, et al., Plaintiffs, v. BREWSTER-BARTLE OFFSHORE COMPANY et al., Defendants-Appellees, v. LOOMIS HYDRAULIC TESTING CO., Inc., et al., Third Party Defendants-Appellants. No. 31020. United States Court of Appeals, Fifth Circuit. July 20, 1971. Rehearing and Rehearing En Banc Denied Sept. 29, 1971. Thomas W. Thorne, Jr., New Orleans, La., Lemle, Kelleher, Kohlmeyer, Matthews & Schumacher, New Orleans, La., for appellants. Philip E. Henderson, of O’Neal, Henderson, Hanemann & Morris, Houma, La., for appellees. Before GEWIN, BELL and MORGAN, Circuit Judges. GEWIN, Circuit Judge: This multiparty maritime suit arose out of an accident which killed an employee of an independent contractor while he was engaged in specialized testing of an oil well drill aboard a submersible drilling barge. In the aftermath the decedent’s widow and minor children (heirs) sued the barge owner; the barge owner sued the decedent’s employer; and the decedent’s compensation insurer intervened for benefits paid. Following a settlement between the decedent’s heirs and the barge owner, the district court granted the barge owner Ryan indemnification over against the decedent’s employer, and denied the compensation insurer’s claim for intervention. The employer and the compensation insurer appeal. While we do not disagree with all of the findings of the trial court, we do conclude that we must reverse and remand for the reasons hereinafter stated. I. Facts Ray Whisenant, an employee of Loomis Hydraulic Testing Co., Inc. (Loomis), was crushed to death while working on a submersible drilling barge (vessel) owned by Brewster-Bartle Offshore Company (Brewster-Bartle). At the time of the accident the drilling barge was drilling an oil well off the coast of Louisiana pursuant to a contract with Texaco Inc. (Texaco). Texaco, in turn, had contracted with Loomis to perform certain specialized testing services on the drill pipe being used in the drilling of the well. The contract stipulated that the testing would be performed while the pipe was on board the drilling barge. No privity of contract existed between Loomis and Brewster-Bartle. On the evening of September 7, 1964, Loomis sent a two-man testing team, along with the necessary testing equipment, to perform the test; Ray Whise-nant was the “operator” of the team, and his brother-in-law, W. A. Russ, was his helper. They commenced their work at approximately 1:00 a. m. on the morning of September 8, 1964. Loomis’ testing procedure called for a small sheave or pulley to be hung at the top of the derrick so that a small cable (wireline) could be run through it. One end of the wireline would then be attached to a winch operated on the ground by a Loomis employee and the other end would be attached to the testing tool which would be lowered into the drill pipe as it stood upright in the derrick. As is customary when a specialized crew comes aboard a rig, the “operator” of the crew, here Whisenant, discussed his proposed plan of procedure with the rig personnel before commencing to work. Whisenant then met with Athos Danos, the Brewster-Bartle driller, to discuss how the pulley, which was too heavy for one man to carry, was to be secured at the top of the derrick. After some discussion Whisenant told Danos that he was going to tie the pulley to the top of the traveling block and have Danos raise the block to the top of the derrick by means of the rig’s drawwork (a large winch). Whisenant advised Danos that he himself planned to ride the derrick’s elevator up to the monkey board (platform) and then climb the ladder on the outside of the derrick to a point below the crown of the derrick. From that point Whisenant planned to give Danos a hand signal for him to raise the traveling block upward by operating the drawworks from below until it reached a point four or five feet from the bottom of the sills at the top of the derrick. At that point Whisenant intended to give Danos a second hand signal to stop the upward movement of the block. Once the traveling block stopped, Whisenant planned to step out on the top of the block, using the top of the block as a work platform, and hang the pulley from the crown of the derrick. Danos approved the plan of procedure suggested by Whisenant and testified that he saw nothing inherently unsafe about the mode of operation; he did, however, offer to send one of his crew members up with Whisenant to assist him but Whisenant indicated that this would not be necessary. In accordance with his plan Whisenant chained the pulley to the top of the traveling block and climbed the ladder to the top girder directly below the crown. Next he stepped from the ladder to the girder, and after positioning himself firmly, signalled Danos to raise the traveling block. Upon seeing the signal to raise the traveling block Danos released the brake and the clutch on the drawworks fixing it in “idle” speed so that the traveling block began moving slowly upward. After the traveling block began to rise Danos looked for, but did not see, any further hand signal indicating that he should stop the motion of the traveling block. As a consequence, the traveling block struck the sill at the top of the derrick; Whisenant, who had jumped onto the top of the traveling block, unseen by Danos was crushed. Following the accident the decedent’s widow (acting individually and as Tutrix of her minor children) filed this suit on September 1, 1965, against the barge owner, Brewster-Bartle, and Texaco alleging that Whisenant’s death was caused by their negligence. Before answer was filed Employers National Insurance Company, Loomis’ compensation insurer, intervened claiming sums expended for funeral expenses and death benefits paid under the Louisiana Workmen’s Compensation Act. Shortly thereafter on August 9, 1967, Brewster-Bartle filed a third party complaint against Loomis. On June 3, 1968, Brewster-Bartle settled the cause of action brought against it by the Whisenant heirs for the sum of $22,500 net to the heirs over and above compensation payments made, and the suit was dismissed. Brewster-Bartle did not notify Loomis or Employers National, the compensation carrier, of the settlement negotiations; nor did it tender to either for approval the proposed settlement agreement or offer Loomis the defense of the suit. After the settlement was concluded, the Whise-nant heirs moved the district court to dismiss their claim against Brewster-Bartle. Accordingly, their claim was dismissed but the claim of the intervenes as well as the third party claim against Loomis were reserved. Thereafter on July 5, 1968, Brewster-Bartle filed a supplemental and amended third-party • complaint against Loomis for indemnification. , After hearing the case without a jury the district court rendered findings of fact and conclusions of law denying the claim of Employers National for intervention and granting Brewster-Bartle indemnity over against Loomis, plus attorney’s fees and costs. In support of its conclusions the trial court found that the procedure used by Loomis to attach the pulley was unsafe and that it was this procedure which proximately caused the accident. The court also found that Whisenant’s action in stepping on the block while it was in motion amounted to contributory negligence on Whise-nant’s part and was likewise a proximate cause of the accident. And finally, the court rejected the contention that the conduct of Brewster-Bartle’s driller (Danos) was a proximate cause of the accident. Instead the court reached the following conclusion: [T]he unsafe method of procedure devised and executed by Loomis’ employee Whisenant, and the decedent’s contributory negligence set the sequence for the resultant accident and the shipowner’s negligence through Danos, if any, could not possibly have converted Loomis’ ill conceived and unsafe method of operation into a safe and sound method of operation. The warranty of workmanlike or seaworthy performance was already well breached by Loomis without regard to the latter fault of Danos, if any. Thus, the court concluded that since Loomis’ breach of its implied warranty of workmanlike service proximately caused the accident and thereby rendered Brewster-Bartle’s vessel unseaworthy, Brewster-Bartle should be indemnified by Loomis pursuant to the Ryan doctrine. II. Ryan Doctrine On appeal Loomis argues that the district court erred in failing to grant its motion to dismiss BrewsterBartle’s third party complaint. Loomis’ first contention is based on the general proposition that the District Court should not have applied the Ryan doctrine of indemnification to the facts of this case. It insists that Ryan should not be extended beyond the traditional stevedore-vessel relationship to a situation in which a specialized service company comes aboard a drilling vessel and renders it unseaworthy. It is urgently insisted that there must be privity of contract between Brewster-Bartle and Loomis. We disagree with these contentions and agree with the trial court’s reasoning on this phase of the case. In Ryan Stevedoring Co. v. Pan Atlantic Steamship Co. the Supreme Court allowed a shipowner to maintain an action for indemnity against the employer of injured persons who were temporarily aboard the vessel to do the work of seamen and whose injuries arose out of unseaworthiness created by their employer. The Court said that even in the absence of an express agreement of indemnity, a contractor entering into a service agreement with a shipowner was obligated to reimburse the shipowner for foreseeable damages resulting from the contractor’s failure to perform its services in a workmanlike manner. The theory behind the warranty of workmanlike service and the duty of indemnification owed by the contractor has been expressed often. These cases emphasize that the Ryan doctrine was carefully conceived as an admiralty concept to serve special problems in maritime law arising from the absolute and nondelegable duty of seaworthiness imposed by the general maritime law upon all vessel owners. Thus, in Italia Societa v. Oregon Stevedoring Co. the Supreme Court underscored the rationale behind the Ryan doctrine with the following statement: [W]e deal here with a suit for indemnification based upon a maritime contract * * * in an area where rather special rules governing the obligations and liability of shipholders prevail, rules that are designed to minimize the hazards encountered by seamen, to compensate seamen for the accidents that inevitably occur, and to minimize the likelihood of such accidents. By placing the burden ultimately on the company whose default caused the injury, Reed v. The S. S. Yaka, 373 U.S. 410, 414, 83 S.Ct. 1349, 10 L.Ed.2d 448, 452, we think our decision today is in furtherance of these objectives. While not denying the equitable spirit behind the Ryan doctrine, Loomis nevertheless emphasizes this court’s past reluctance to expand the doctrine beyond its original factual setting. In Loff-land Brothers Co. v. Roberts we stated Recognizing this unique obligation on the part of a shipowner, we have held that the Ryan doctrine is closely tied to a vessel and this obligation which the shipowner owes to those employed on the vessel. * * * We are accordingly extremely hesitant to extend the burdensome Ryan doctrine to situations not substantially similar to those which gave birth to the doctrine. Notwithstanding these general admonitions we are convinced that the doctrine was properly analyzed in this case. The court found that (1) in contracting to perform services beneficial to the vessel, Loomis warranted to perform in a workmanlike manner; (2) Loomis’ unsafe procedure and plan for “rigging up” the vessel rendered it unseaworthy and proximately caused Whisenant’s death; (3) in rendering the vessel unseaworthy Loomis breached its implied warranty of workmanlike services and was therefore obligated under Ryan to indemnify the barge owner for any damages sustained as a result. Thus, given the implied warranty of workmanlike service owed by the special contractor (Loomis) to the drilling barge, we fail to see, on the facts now before us, any reason to treat the scope and measure of recovery for its breach in a manner conceptually different from that applied to the warranty of workmanlike performance owed by the stevedore to the vessel owner in Ryan and Crumady v. Joachim Hendrik Fisser. Both the submersible barge owner (Brewster-Bartle) in the ease at hand and the vessel owner in Ryan relinquished control of their vessel to the tortfeasor ; yet in each case they remained absolutely liable for the condition of their vessel under the nondelegable duty to provide a seaworthy vessel. In both cases, therefore, we think it appropriate that the party whose fault caused the injury should be held responsible to indemnify the party compelled to pay an injured claimant because of its technical or vicarious liability. Loomis’ second contention, related to the first but more specific, is that the absence of a contractual relationship between Loomis and BrewsterBartle should have been fatal to Brewster-Bartle’s Ryan claim of indemnification against Loomis since the warranty of workmanlike performance does not extend to the vessel owner when there is no privity of contract between the vessel owner and the company performing the services. In maintaining that it is under no obligation to indemnify BrewsterBartle, Loomis argues that it was not a party to Brewster-Bartle’s agreement with Texaco, and that Brewster-Bartle was not a third party beneficiary of the Loomis-Texaeo contract. This argument, however, rests on a misunderstanding of the nature of the obligation to indemnify and totally ignores the Supreme Court holding in Crumady v. Joachim Hendrik Fisser. The basis of the obligation is an implied warranty of workmanlike service. Moreover, the obligations which arise from the implied warranty are not limited to the confines of the usual action on contract; the zone of responsibility may extend to parties who are not in direct contractual relationship. In Crumady, the Supreme Court settled this precise question: The warranty which a stevedore owes when he goes aboard a vessel to perform services is plainly for the benefit of the vessel whether the vessel’s owners are parties to the contract or not. That is enough to bring the vessel into the zone of modern law that recognizes rights in third-party beneficiaries. (Emphasis added) III. Failure to Tender Settlement Agreement Appellant Loomis contends that the district court erred in awarding Brewster-Bartle indemnity for its settlement with the Whisenant heirs in the absence of evidence that Brewster-Bartle tendered the proposed settlement to Loomis for approval or negotiation, or offered it the opportunity to defend the action. We tend to agree. In Tankrederiet Gefion A./S v. Hyman-Michaels Company, a case involving principles of indemnity similar to those under consideration here, the indemnitee (the original defendants) settled the claim of the original plaintiffs without first tendering the settlement for approval or offering the defense in exchange for a hold harmless agreement. In these circumstances the court ruled that the settling indemnitee must prove actual liability in order to recover from the indemnitor. In a carefully reasoned opinion, the Sixth Circuit distinguished the facts of its case from cases in which (1) the original defendant’s claim for indemnification was founded on a judgment, or (2) the indemnitor was tendered the defense and refused it, or (3) the indemnitee’s claim against the indemnitor was founded upon a written contract. In addition, the court recognized the principle that the law encourages settlements, but reasoned that [A] tender of the defense in exchange for a hold-harmless agreement is a feasible protection for the party desiring to settle, as well as for the proposed indemnitor. It certainly seems appropriate for B, the party desiring to settle and possessing the facts pertaining to the settlement, to be required to tender C the choice of approving the settlement or of going forward with the defense in exchange for a hold-harmless agreement. We assume that such a hold-harmless agreement would constitute C’s financially responsible guarantee that B would under no circumstances be forced to pay more than the sum for which it was prepared to settle. If such a tender were refused and B settled, then we think the proofs required in the subsequent suit against C would appropriately be potential liability and reasonableness of the settlement. The ultimate problem with any other rule than that which the District Judge laid down here is that potentially it would allow B (the original defendants) to spend C’s (the third party defendant) money without the final judgment of a court or C’s agreement. Deciding whether to try a case to judgment or to settle it involves elements of legal evaluation, of financial capacity to take risk, and of appetite for court room conflict which vary widely among litigants. We hold that under the facts of this case B cannot compel C to accept B’s evaluation of these critical factors. Any other rule would deny C any opportunity to contest B’s liability to A — a liability which C may be required to pay. In settling with the heirs of Whisenant without giving notice to Loomis or Employers National, Brewster-Bartle denied them the opportunity to participate in the settlement negotiations or to defend against BrewsterBartle’s primary liability. That Loomis would have chosen to contest Whisenant’s claim against Brewster-Bartle is strongly suggested by the record. Immediately after settlement Brewster-Bartle amended its third party complaint against Loomis to allege for the first time that Loomis rendered the barge unseaworthy by its negligence. At the trial, counsel for Loomis complained of this fact and asserted that prior to the time of the settlement there had been no claim that the vessel was unseaworthy or that Loomis had done anything to make it so. The claim against Brewster-Bartle at the time of the settlement was purely and simply a claim for negligence. Otherwise stated, as the record shows, it was admitted by all that the settlement between Whisenant and Brewster-Bartle was not “a seaman’s settlement” based on elements of maritime liability; nevertheless, in its amended complaint Brewster-Bartle sought indemnification on a maritime theory (the Ryan doctrine) the elements of which had never been demonstrated because of the settlement. We conclude, therefore, that under these facts and in the circumstances of this case, the finding of the trial court that the settlement between BrewsterBartle and Whisenant was reasonable is not sufficient to support a judgment against Loomis since defense of the Whisenant claim was not tendered to it and Loomis was not given the opportunity to review, pass upon, or participate in the settlement itself. Thus, we expressly pretermit any holding on this issue and remand this phase of the case with directions that the court require BrewsterBartle (1) to establish actual liability to Whisenant; (2) to show the reasonableness of the settlement; and (3) to demonstrate that Loomis was in no way prejudiced by Brewster-Bartle’s failure to either inform them of the settlement negotiations, or to tender them the defense before final settlement. We are in accord with the following succinct statement of the court in Jennings v. United States: The indemnitee’s unilateral acts, albeit reasonable and undertaken in good faith, cannot bind the indemnitor; notice and an opportunity to defend are the indispensable due process satisfying elements. IV. Insurance Carrier’s Intervention As a final contention appellants argue that the court erred in denying Employers National complaint of intervention by which it sought to recover money paid to Whisenant’s estate under the Louisiana Workman’s Compensation Act. The district court denied this claim without explanation or supporting citation. Our reading of the cases pertinent to this claim indicates that the workman’s compensation insurance carrier may have a valid subrogation claim under the facts presented. Accordingly, we must remand for a full determination of this question. On remand the trial court should determine whether Employers National is entitled to subro-gation for the medical and funeral expenses paid as well as for attorney fees incurred in the litigation; and if not, reasons for such denial should be given. Reversed and remanded for further proceedings not inconsistent with this opinion. ON PETITIONS FOR REHEARING AND PETITION FOR REHEARING EN BANC PER CURIAM: The Petition for Rehearing filed by Loomis Hydraulic Testing Co., Inc. and Employers National Insurance Company, Appellants, is denied and no member of this panel nor Judge in regular active-service on the Court having requested that the Court be polled on rehearing en banc, (Rule 35 Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the Petition for Rehearing En Banc is denied. The Petition for Rehearing filed by Brewster-Bartle Offshore Company et al., Appellees in the above numbered and captioned case is also hereby denied. . Ryan Stevedoring Co. v. Pan Atlantic Steamship Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133 (1956). . The decision of the lower court is reported in D.C., 319 F.Supp. 993 (1970). . The lower court found that while a specialist crew is “rigging up” its testing equipment, it is customary for the drilling crew not to work in the derrick floor area except for those members of the crew who are requested by the specialized crew to assist them in rigging up the testing equipment. It is also customary when specialized service teams come aboard a drilling rig, for the drilling crew to offer such members of its personnel and such equipment as is needed by the specialized team to assist in performing its service. Furthermore, the company (Texaco) that hires the drilling company (Brewster-Bartle) and hires the specialized service company (Loomis) expects the specialized service company to make use of the drilling crew to assist in the performance of the specialized service and expects, as part of the contractual undertaking, for the drilling company to allow its men to be used by the specialized company. These findings are not clearly erroneous. . The traveling block is a heavy metal object through which cables run; the block is pulled up and down in the derrick with the raising and lowering of drill pipes. The ‘block’ is flat on two sides, but the top of the block forms a curved half-moon surface which slopes from top to bottom at about.30° to 45° degree angle. Since no flat area exists on top of the block, anyone standing on the block would have to position his feet on this curved surface approximately two feet in width. . The derrick is one of the type that is commonly used in the oil industry in south Louisiana; there was nothing abnormal or unusual about it. The distance from the rig floor to the crown was 142 feet. The top of the rig was illuminated by several lights. . The record demonstrates that the settlement between Brewster-Bartle and the Whisenant heirs was not concluded in the United States District Court which heard this case. The settlement was approved by a Louisiana state court in the parish where the minor children of Whisenant resided. . The normal and usual procedure for hanging the pulley was to have it brought up on either the “fast” line (one of the single cables operated by the driller’s drawworks) or by the “cat” line (an additional line or cable available in the derrick.) To bring the pulley up the derrick by means of the traveling block was found to be highly unusual. In the ordinary course of operations, the driller would only rarely raise the block nearer than 20-30 feet from the crown. Because of the inward lean of the derrick sides (the base of the derrick being much broader across on all sides than the top), and the width of the traveling block, it was extremely difficult for the driller to judge distances at the top of the derrick. Moreover-, from tire rig floor the driller could see Whisenant’s hand only when Whisenant reached into the interior tunnel of the derrick; when Whisenant resumed his normal standing position after having leaned forward to give the signal to raise the block, the driller could not see him. Of course, darkness compounded these difficulties. . Whisenant’s use of the sloping top of the traveling block as a work platform was highly unusual and abnormal. Mr. Huey Hoffpauir, Loomis’ supervisor in charge of Whisenant, testified that in the thirteen years he had been employed by Loomis, he had never worked from on top of the block and that he considered it dangerous to do so. A. W. Russ, Whisenant’s helper on the job, was instructed by Whisenant himself never to get on top of the block. . The court ruled as follows : Whether under the circumstances, it was unreasonable for Danos to have failed to see a hand signal if one was given and a leap or step by a man across a twenty-two inch opening at a distance of approximately 135 to 140 feet, need not be decided because if such was negligence, such negligence would not preclude indemnity. . Ryan Stevedoring Co. v. Pan Atlantic Steamship Co., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133 (1956). . 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133 (1956). . Italia Societa v. Oregon Stevedoring Co., 376 U.S. 315, 84 S.Ct. 748, 11 L.Ed. 2d 732 (1964); Waterman Steamship Corp. v. Dugan & McNamara, Inc., 364 U.S. 421, 81 S.Ct. 200, 5 L.Ed.2d 169 (1960); Crumady v. Joachim Hendrik Fisser, 358 U.S. 423, 79 S.Ct. 445, 3 L.Ed.2d 413 (1959); Weyerhaeuser Steamship Co. v. Nacirema Operating Company, 355 U.S. 563, 78 S.Ct. 438, 2 L.Ed.2d 491 (1958); Grigsby v. Coastal Marine Service of Texas, Inc., 412 F.2d 1011 (5th Cir. 1969); cert. dismissed Fidelity & Cas. Co. v. Grigsby, 396 U.S. 1033, 90 S.Ct. 612, 24 L.Ed.2d 531; Loffland Brothers Co. v. Roberts, 5 Cir., 386 F.2d 540, cert. denied 389 U.S. 1040, 88 S.Ct. 778, 19 L.Ed.2d 830; Lusich v. Bloomfield Steamship Co., 355 F.2d 770 (5th Cir. 1966). Bue, Admiralty Law in the Fifth Circuit — A Compendium for Practitioners I, 4 Houston L.Rev. 347, 408 (1966). . 376 U.S. 315, 84 S.Ct. 748, 11 L.Ed.2d 732 (1964). . 376 U.S. 324, 84 S.Ct. 754, 11 L.Ed.2d 741. . See Hobart v. Sohio Petroleum Co., 445 F.2d 435 (5th Cir. 1971); Smith Petroleum Service, Inc. v. Monsanto Chemical Co., 420 F.2d 1103 (5th Cir. 1970); Loffland Brothers Co. v. Roberts, 386 F.2d 540, 549 (5th Cir. 1967); Centraal Stikstof Verkoopkanter, N. V. v. Walsh Stevedoring Co., 380 F.2d 523, 529 (5th Cir. 1967). . 386 F.2d 540, 549 (5th Cir. 1967). . In those sections pertinent the district court analyzed Ryan in its conclusions of law as follows: 3. The Ryan case involved a stevedore. Though there is no stevedoring company involved in this case, the theory is the same. A party contracting to perform services beneficial to the vessel owes the vessel owner a duty to perform in a workmanlike manner so as not to render the vessel unseaworthy * * * The cases cited by Loomis, Humble Oil & Refining Company v. Naquin, [5 Cir.] 414 F.2d 912; Tri-State Oil [Tool] Industries, Inc. v. Delta Marine Drilling Company, [5 Cir.] 410 F.2d 178 and Halliburton Company v. Norton Drilling Company, [5 Cir.] 302 F.2d 431, in support of its contention that the Ryan doctrine should not apply are inapposite and clearly distinguishable * ® * 6. Loomis held itself out to be an expert in its testing procedures which necessarily included its rigging up procedures ; Loomis was clearly in charge of outlining the method of procedures by which it was to rig its testing equipment; the unsafe procedure and plan of rigging up rendered the drilling barge unseaworthy and constituted a breach of implied warranty owed by Loomis to the vessel owner under the doctrine announced in Ryan Stevedoring Co. v. Pan Atlantic Steamship Co., 350 U.S. [124] 141, 76 S.Ct. 632 [232]. . 350 U.S. 141, 76 S.Ct. 232, 100 L.Ed. 133. . 358 U.S. 423, 79 S.Ct. 445, 3 L.Ed.2d 413. . The trial court specifically found that Loomis was clearly in charge of the procedure followed and that during the testing the only members of the vessel’s crew in the area of the derrick were those who were instructed to assist the operation by the Loomis crew. This finding is not clearly erroneous. . See Tri-State Oil Tool Indus., Inc. v. Delta Marine Co., 410 F.2d 178, 181 (5th Cir. 1969); General Electric Co. v. Cuban American Nickel Co., 396 F.2d 89, 91-92 (5th Cir. 1968). . Loomis’ contract for the performance of its services aboard Brewster-Bartle’s barge was with Texaco. . 358 U.S. 423, 79 S.Ct. 445, 3 L.Ed.2d 413 (1959). See also Waterman Steamship Corp. v. Dugan & McNamara, Inc., 364 U.S. 421, 81 S.Ct. 200, 5 L.Ed.2d 169 (1960); DeGioia v. United States Lines Co., 304 F.2d 421 (2d Cir. 1962). . Id. See Booth Steamship Co. v. Meier & Oelhaf Co., 262 F.2d 310, 312-313 (2d Cir. 1958). . 358 U.S. 428, 79 S.Ct. 448, 3 L.Ed.2d 417. . 406 F.2d 1039 (6th Cir. 1969). . We do not agree with Brewster-Bartle that fundamental principles of indemnity should not be considered in a Ryan situation. While technical rules of tort indemnity may not apply in a given case, the basic principles of due process and fair treatment of the indemnitee should be considered. . In Tanhrederiet, the indemnitor had full knowledge of the litigation since it was impleaded as a party; and in addition it knew that settlement negotiations were going on since it was invited to participate. In the case under consideration, Loomis had knowledge of the pending litigation between Whisenant and Brewster-Bartle but was not afforded an opportunity to participate in settlement negotiations. In Tanhrederiet, however, the crucial factor in the court’s decision appears to be that the settlement agreement was not tendered to the indemnitor. Here it is undisputed that Loomis was never tendered the settlement agreement in any form or fashion or offered the defense of the case. . 406 F.2d 1039, 1043-1044. In addition see Jennings v. United States, 374 F.2d 983 (4th Cir. 1967); Chicago, R. I. & P. R. Co. v. Dobry Flour Mills, 211 F.2d 785, 787-788 (10th Cir. 1954); Johnson v. Excelsior Shipping Company, 319 F.Supp. 986, 989 (S.D.Ala.1970); Skibs A/S Gylfe v. Hyman Michaels Company, 304 F.Supp. 1204, 1206 (E.D.Mich.1969). . In arguing to Question: What is the total number of respondents in the case that fall into the category "sub-state governments, their agencies, and officials"? Answer with a number. Answer:
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. MORRIS v. JONES, DIRECTOR OF INSURANCE. No. 62. Argued December 9, 10, 1946. Decided January 20, 1947. J. L. London and Ford W. Thompson argued the cause and filed a brief for petitioner. Ferre C. Watkins argued the cause for respondent. With him on the brief were Charles F. Meyers, Otis F. Glenn and Raymond G. Real. Mr. Justice Douglas delivered the opinion of the Court. This case presents a substantial question under the Full Faith and Credit Clause (Art. IV, § 1) of the Constitution. Chicago Lloyds, an unincorporated association, was authorized by Illinois to transact an insurance business in Illinois and other states. It qualified to do business in Missouri. In 1934 petitioner sued Chicago Lloyds in a Missouri court for malicious prosecution and false arrest. In 1938, before judgment was obtained in Missouri, respondent’s predecessor was appointed by an Illinois court as statutory liquidator for Chicago Lloyds. The Illinois court fixed a time for the filing of claims against Chicago Lloyds and issued an order staying suits against it. Petitioner had notice of the stay order but nevertheless continued to prosecute the Missouri suit. At the instance of the liquidator, however, counsel for Chicago Lloyds withdrew from the suit and did not defend it, stating to the Missouri court that the Illinois liquidation proceedings had vested all the property of Chicago Lloyds in the liquidator. Thereafter petitioner obtained a -judgment in the Missouri court and filed an exemplified copy of it as proof of his claim in the Illinois proceedings. An order disallowing the claim was sustained by the Illinois Supreme Court against the contention that its allowance was required by the Full Faith and Credit Clause. 391 Ill. 492, 63 N. E. 2d 479. The case was brought here by appeal. We postponed the question of jurisdiction to the merits. Under the rule of Roche v. McDonald, 275 U. S. 449, 450, the question whether full faith and credit should have been given the Missouri judgment does not present a ground for appeal. But treating the jurisdictional statement as a petition for certiorari (Judicial Code § 237 (c), 28 U. S. C. § 344 (c)), that writ is granted; and we come to the merits of the controversy. The Full Faith and Credit Clause and the statute which implements it (R. S. § 905, 28 U. S. C. § 687) require the judgments of the courts of one State to be given the same faith and credit in another State as they have by law or usage in the courts of the State rendering them. The Illinois Supreme Court concluded that compliance with that mandate required that precedence be given to the Illinois decree appointing the statutory liquidator. It held that title to all the property of Chicago Lloyds, wherever located, vested in the liquidator; that the liquidator was entitled to keep and retain possession of the property to the exclusion of the process of any other court; that although Missouri might give priority to Missouri creditors in the property of the debtor located there, Clark v. Williard, 292 U. S. 112, the Missouri judgment could have no priority as respects Illinois assets; that if a liquidator had been appointed in Missouri, petitioner could not have obtained his judgment, or if he had obtained it, he could not have enforced it against the property in the hands of the Missouri liquidator, see McDonald v. Pacific States Life Ins. Co., 344 Mo. 1, 124 S. W. 2d 1157; and that to disallow the judgment in the Illinois proceedings is, therefore, to give it the same effect that it would have had under the same circumstances in Missouri. First. We can put to one side, as irrelevant to the problem at hand, several arguments which have been pressed upon us. We are not dealing here with any question of priority of claims against the property of the debtor. For in this proceeding petitioner is not seeking, nor is respondent denying him, anything other than the right to prove his claim in judgment form. No question of parity of treatment of creditors, or the lack thereof (see Blake v. McClung, 172 U. S. 239), is in issue. Nor is there involved in this case any challenge to the Illinois rule, which follows Relfe v. Rundle, 103 U. S. 222, that title to all the property of Chicago Lloyds, wherever located, vested in the liquidator. Nor do we have here a challenge to the possession of the liquidator either through an attempt to obtain a lien on the property or otherwise. As pointed out in Riehle v. Margolies, 279 U. S. 218, 224, the distribution of assets of a debtor among creditors ordinarily has a “twofold aspect.” It deals “directly with the property” when it fixes the time and manner of distribution. No one can obtain part of the assets or enforce a right to specific property in the possession of the liquidation court except upon application to it. But proof and allowance of claims are matters distinct from distribution. They do not “deal directly with any of the property.” “The latter function, which is spoken of as the liquidation of a claim, is strictly a proceeding in personam.” Id,., p. 224. The establishment of the existence and amount of a claim against the debtor in no way disturbs the possession of the liquidation court, in no way affects title to the property, and does not necessarily involve a determination of what priority the claim should have. And see Chicago Title & T. Co. v. Fox Theatres Corp., 69 F. 2d 60. One line of cases holds that where a statutory liquidator or receiver is appointed, the court taking jurisdiction of the property draws unto itself exclusive control over the proof of all claims. But the notion that such control over the proof of claims is necessary for the protection of the exclusive jurisdiction of the court over the property is a mistaken one. As Justice Beach of the Supreme Court of Errors of Connecticut aptly said, “The question is simply one of the admissibility and effect of evidence; and the obligation to receive a judgment in evidence is no more derogatory to the jurisdiction in rem than the obligation to receive in evidence a promissory note or other admissible evidence of debt.” Beach, Judgment Claims in Receivership Proceedings, 30 Yale L. Journ. 674, 680. Moreover, we do not have here a situation like that involved in Pendleton v. Russell, 144 U. S. 640, where it was sought to prove in a New York receivership of a dissolved corporation a judgment obtained in Tennessee after dissolution. The proof was disallowed, dissolution having operated, like death, as an abatement of the suit. No such infirmity appears to be present in the Missouri judgment; and the Illinois Supreme Court did not hold that the appointment of a liquidator for Chicago Lloyds operated as an abatement of the suit. Nor is it sought on any other ground to bring the Missouri judgment within the exception on which Williams v. North Carolina, 325 U. S. 226, rests, by challenging the jurisdiction of the Missouri court over either the parties or the subject matter. Nor is there any lack of privity between Chicago Lloyds and the Illinois liquidator. Cf. Ingersoll v. Coram, 211 U. S. 335, 362-364. There is no difference in the cause of action, cf. United States v. California Bridge Co., 245 U. S. 337, whether Chicago Lloyds or the liquidator is sued. The Missouri judgment represents a liability for acts committed by Chicago Lloyds, not for those of the liquidator. The claims for which the Illinois assets are being administered are claims against Chicago Lloyds. The Missouri judgment represents one of them. There is no more reason for discharging a liquidator from the responsibility for defending pending actions than there is for relieving a receiver of that task. Riehle v. Margolies, supra. Second. “A judgment of a court having jurisdiction of the parties and of the subject matter operates as res judi- cata, in the absence of fraud or collusion, even if obtained upon a default.” Riehle v. Margolies, supra, p. 225. Such a judgment obtained in a sister State is, with exceptions not relevant here, see Williams v. North Carolina, 317 U. S. 287, 294-295, entitled to full faith and credit in another State, though the underlying claim would not be enforced in the State of the forum. Christmas v. Russell, 5 Wall. 290; Fauntleroy v. Lum 210 U. S. 230; Roche v. McDonald, supra; Titus v. Wallick, 306 U. S. 282, 291. It is no more important that the suit on this underlying claim could not have been maintained in Illinois after the liquidator had been appointed than the fact that a statute of limitations of the State of the forum might have barred it. See Christmas v. Russell, supra; Roche v. McDonald, supra. And the Missouri judgment may not be defeated by virtue of the fact that under other circumstances petitioner might not have been able to obtain it in Missouri or to have received any benefit from it there, as, for example, if a liquidator had been appointed for the debtor in Missouri prior to judgment. The full faith and credit to which a judgment is entitled is the credit which it has in the State from which it is taken, not the credit that under other circumstances and conditions it might have had. Moreover, the question whether a judgment is entitled to full faith and credit does not depend on the presence of reciprocal engagements between the States. Under Missouri law petitioner’s judgment was a final determination of the nature and amount of his claim. See Pitts v. Fugate, 41 Mo. 405; Central Trust Co. v. D’Arcy, 238 Mo. 676, 142 S. W. 294; State ex rel. Robb v. Shain, 347 Mo. 928, 149 S. W. 2d 812. That determination is final and conclusive in all courts. “Because there is a full faith and credit clause a defendant may not a second time challenge the validity of the plaintiff’s right which has ripened into a judgment.” Magnolia Petroleum Co. v. Hunt, 320 U. S. 430, 439-440. For the Full Faith and Credit Clause established “throughout the federal system the salutary principle of the common law that a litigation once pursued to judgment shall be as conclusive of the rights of the parties in every other court as in that where the judgment was rendered.” Id., p. 439. And see Riley v. New York Trust Co., 315 U. S. 343, 348-349. The nature and amount of petitioner’s claim may not, therefore, be challenged or retried in the Illinois proceedings. As to respondent’s contention that the Illinois decree, of which petitioner had notice, should have been given full faith and credit by the Missouri court, only a word need be said. Roche v. McDonald, supra, pp. 454-455, makes plain that the place to raise that defense was in the Missouri proceedings. And see Treinies v. Sunshine Mining Co., 308 U. S. 66, 77. And whatever might have been the ruling on the question, the rights of the parties could have been preserved by a resort to this Court, which is the final arbiter of questions arising under the Full Faith and Credit Clause. Williams v. North Carolina, 317 U. S. 287, 302. In any event, the Missouri judgment is res judicata as to the nature and amount of petitioner’s claim as against all defenses which could have been raised. Roche v. McDonald, supra; Milwaukee County v. White Co., 296 U. S. 268, 275; Magnolia Petroleum Co. v. Hunt, supra, p. 438. It is finally suggested that since the Federal Bankruptcy Act provides for exclusive adjudication of claims by the bankruptcy court and excepts insurance companies from the Act (§ 4, 52 Stat. 840, 845, 11 U. S. C. § 22; Vallely v. Northern Fire & Marine Ins. Co., 254 U. S. 348), the state liquidators of insolvent insurance companies should have the same control over the determination of claims as the bankruptcy court has. This is to argue that by reason of its police power a State may determine the method and manner of proving claims against property which is in its jurisdiction and which is being administered by its courts or administrative agencies. We have no doubt that it may do so except as such procedure collides with the federal Constitution or an Act of Congress. See Broderick v. Rosner, 294 U. S. 629. But where there is such a collision, the action of a State under its police power must give way by virtue of the Supremacy Clause. Article VI, Clause 2. There is such a collision here. When we look to the general statute which Congress has enacted pursuant to the Eull Faith and Credit Clause, we find no exception in case of liquidations of insolvent insurance companies. The command is to give full faith and credit to every judgment of a sister State. And where there is no jurisdictional infirmity, exceptions have rarely, if ever, been read into the constitutional provision or the Act of Congress in cases involving money judgments rendered in civil suits. Magnolia Petroleum, Co. v. Hunt, supra, p. 438; Williams v. North Carolina, 317 U. S. 287, 294, footnote 6. The function of the Full Faith and Credit Clause is to resolve controversies where state policies differ. Its need might not be so greatly felt in situations where there was no clash of interests between the States. The argument of convenience in administration is at best only another illustration of how the enforcement of a judgment of one State in another State may run counter to the latter’s policies. But the answer given by Fauntleroy v. Lum, supra, is conclusive. If full faith and credit is not given in that situation, the Clause and the statute fail where their need is the greatest. The argument of convenience, moreover, proves too much. In the first place, it would often be equally appealing to individuals or corporations engaging in multistate activities which might well prefer to defend law suits at home. In the second place, against the convenience of the administration of assets in Illinois is the hardship on the Missouri creditor if he were forced to drop his Missouri litigation, bring his witnesses to Illinois, and start all over again. But full faith and credit is a more inexorable command; its applicability does not turn on a balance of convenience as between litigants. If this were a situation where Missouri’s policy would result in the dismemberment of the Illinois estate so that Illinois creditors would go begging, Illinois would have such a large interest at stake as to prevent it. See Clark v. Williard, 294 U. S. 211. But, as we have said, proof and allowance of claims are matters distinct from distribution of assets. The single point of our decision is that the nature and amount of petitioner’s claim has been conclusively determined by the Missouri judgment and may not be reliti-gated in the Illinois proceedings, it not appearing that the Missouri court lacked jurisdiction over either the parties or the subject matter. We do not suggest that petitioner by proving his claim in judgment form can gain a priority which he would not have had if he had to relitigate his claim in Illinois. And, as we have said, there is not involved in this case any rule of distribution which departs from the principle of parity as between Illinois creditors and creditors from other States. See Clark v. Williard, 294 U. S. 211; Blake v. McClung, supra. Reversed. It does not appear that there is any property of the debtor in Missouri; nor was a liquidator appointed in Missouri. Attorney General v. Supreme Council, 196 Mass. 151, 159, 81 N. E. 966 (receivership); Hackett v. Supreme Council, 206 Mass. 139, 142, 92 N. E. 133 (receivership). The Illinois rule announced in the instant case is likewise applicable in receivership proceedings. Evans v. Illinois Surety Co., 319 Ill. 105, 149 N. E. 802. Contra: Pringle v. Woolworth, 90 N. Y. 502 (receivership). The federal receivership rule permits continuance of suits in other courts at least where they were pending at the time of the appointment of the receiver. Riehle v. Margolies, supra. And see Chicago Title & T. Co. v. Fox Theatres Corp., supra, and Dickinson v. Universal Service Stations, 100 F. 2d 753, 757, applying the Riehle ruling to a suit started in a state court after the receivership. For collection of cases see 96 A. L. R. 485. See In re Paramount Publix Corp., 85 F. 2d 42, and cases collected in 106 A. L. R. pp. 1121 et seq. Cf. Robinson v. Trustees, 318 Mass. 121, 60 N. E. 2d 593; In re Chicago & E. I. Ry. Co., 121 F. 2d 785. 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_appel2_7_3
A
What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the second listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the race or ethnic identity of this litigant as identified in the opinion. Names may be used to classify a person as hispanic if there is little ambiguity. All aliens are coded as "not ascertained". George Washington O’NEAL, Jr., et al., Plaintiffs-Appellants, Cross-Appellees, v. DeKALB COUNTY, GEORGIA, et al., Defendants-Appellees, Cross-Appellants. No. 87-8682. United States Court of Appeals, Eleventh Circuit. July 25, 1988. James W. Howard, Howard, Secret & Wilde, Atlanta, Ga., for plaintiffs-appellants, cross-appellees. Albert Sidney Johnson, DeKalb County Attorneys Office, Decatur, Ga., Judson Graves, Alston & Bird, Paul J. Quiner, Wade H. Watson, III, Johnson & Montgomery, Atlanta, Ga., for defendants-appellees, cross-appellants. Before KRAVITCH and CLARK, Circuit Judges, and NICHOLS , Senior Circuit Judge. Honorable Philip Nichols, Jr., Senior U.S. Circuit Judge for the Federal Circuit, sitting by designation. KRAVITCH, Circuit Judge: The survivors of a man killed in a police shootout in DeKalb Counly, Georgia brought this action pursuant to 42 U.S.C. § 1983 against the officers involved in the shootout, certain county officials, and the County. The district court granted the defendants’ motion for summary judgment on the ground that the decedent’s constitutional rights had not been violated and therefore no section 1983 action could be maintained, 667 F.Supp. 853. We affirm. I. On the evening of December 15, 1983, the decedent, George Washington O’Neal, Sr., a patient at Doctor’s Hospital in De-Kalb County, Georgia, went on a rampage through the hospital and stabbed seven people with a pocketknife. Officer Steven Waits, a DeKalb County police officer, arrived at the hospital in response to a police call. Waits, armed with his service revolver, found O’Neal on the second floor, holding a bloody knife. Waits identified himself as a police officer and ordered O’Neal to drop his knife. Ignoring Waits’s demand, O’Neal ran away down the hallway. As Waits chased O’Neal through the second floor corridors, he observed “a lot of blood on the floor ... a piece of intral [sic] of some kind” and a person with a severe stomach wound lying on the floor. Deposition of Steven W. Waits, at 54. He also noticed that the nursing supervisor had a stab wound in his back. Police Report, Plaintiffs Exhibit 2. After Waits had chased O’Neal for approximately five minutes, Officer Rick Ro-seberry, armed with a shotgun, arrived at the hospital to assist Waits. Roseberry also saw “blood all over the floor” and walls and “a piece of human tissue lying there in [sic] the floor in front of me.” Deposition of Rickie Emmit Roseberry, at 66. Soon after Roseberry’s arrival, the two officers cornered O’Neal at the end of one of the second floor corridors so that O’Neal was standing only six feet from Roseberry and between five and six feet from Waits. With their weapons raised, the officers repeatedly ordered O’Neal to drop his knife and lie on the floor. Instead of complying, O’Neal rushed toward Rose-berry with the knife raised over his head; in response, both officers fired their weapons at O’Neal. Although struck by both shots, O’Neal did not fall, but rather twisted around from the force of the shots, still waving his knife above his head. Immediately after the first volley of shots, Rose-berry fired a second shot, which hit O’Neal in the small of the back and brought him to the ground. O’Neal died as a result of the gunshot wounds. O’Neal’s survivors brought this section 1983 action against Waits, Roseberry, the Director of Public Safety of DeKalb County, the Chief of Police and Assistant Chief of Police of DeKalb County, and DeKalb County. The complaint alleged that Waits and Roseberry had deprived O’Neal of his constitutional rights by using excessive force against him, and that this use of excessive force was the result of a custom or policy of DeKalb County. Concluding that O’Neal’s constitutional rights had not been violated because the officers had not used excessive force, the district court granted summary judgment for all the defendants. In a separate order, the district court denied the defendants’ motion for attorney’s fees under 42 U.S.C. § 1988 and Federal Rule of Civil Procedure 11. The plaintiffs appeal, arguing that the district court erred in granting summary judgment on the issue of excessive force. The defendants cross-appeal from the denial of attorney’s fees. II. To succeed on their section 1983 claim, the plaintiffs must establish that O’Neal was deprived of a constitutional right. Baker v. McCollan, 443 U.S. 137, 138, 99 S.Ct. 2689, 2692, 61 L.Ed.2d 433 (1979); Shillingford v. Holmes, 634 F.2d 263, 265 (5th Cir. Unit A 1981). The plaintiffs advance two plausible constitutional theories to support their section 1983 action; they assert that the officers’ use of force against O’Neal violated his right to substantive due process and his rights under the fourth amendment. We will consider these assertions separately. See Gilmere v. City of Atlanta, 774 F.2d 1495, 1499 (11th Cir.1985) (en banc) (analyzing claim of excessive force under both substantive due process and fourth amendment), cert. denied, 476 U.S. 1115, 106 S.Ct. 1970, 90 L.Ed.2d 654 (1986). A. Substantive Due Process The starting point for any discussion of a substantive due process claim in the context of police abuse is Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952), in which the Supreme Court held that incriminating evidence obtained by subjecting a criminal suspect to a stomach pump was inadmissible. As the Court explained, substantive due process is violated when the government engages in actions that “ ‘offend those canons of decency and fairness which express the notions of English-speaking peoples even toward those charged with the most heinous offenses.’ ” Id. at 169, 72 S.Ct. at 208 (quoting Malinski v. New York, 324 U.S. 401, 416-17, 65 S.Ct. 781, 788-89, 89 L.Ed. 1029 (1945)). In other words, government conduct that “shocks the conscience,” id. at 172, 72 S.Ct. at 209, or “offend[s] even hardened sensibilities,” id., 72 S.Ct. at 210, transgresses the bounds of substantive due process. Since Rochin, the lower courts have developed more definite standards for identifying substantive due process violations. In determining whether force used by police officers amounts to a constitutional deprivation, a court must consider “‘the need for the application of force, the relationship between the need and the amount of force that was used, the extent of the injury inflicted, and whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.’” Gilmere v. City of Atlanta, 774 F.2d 1495, 1500-01 (11th Cir.1985) (en banc) (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.), cert. denied, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 (1973)), cert. denied, 476 U.S. 1115, 106 S.Ct. 1970, 90 L.Ed.2d 654 (1986). The plaintiffs’ substantive due process argument is two-tiered. First, they maintain that the use of gunfire against a suspect armed only with a knife was constitutionally excessive because less harmful methods of apprehension were available. Second, they argue that assuming the first volley of gunfire was constitutional, Rose-berry’s second shot was not. We reject both parts of the plaintiffs’ argument. Unquestionably, the situation at Doctor’s Hospital on the evening of December 15, 1983 suggested the need for the application of force. O’Neal had just stabbed several people and, at the time he was shot, was charging at Roseberry with his knife raised over his head. He refused to respond to the officers’ demands that he surrender, leaving them with the definite impression that force was required to stop him from hurting Roseberry or someone else. Moreover, the amount of force used did not exceed the need for the use of force. The plaintiffs maintain that O’Neal’s rights were violated because the officers could have disarmed him by negotiating with him or by using a baton or stungun, instead of resorting to gunfire. However, they point to no authority holding that the Constitution requires police officers to use a minimum of force to apprehend a violent, dangerous suspect who is threatening the lives of the officers and others nearby. In this case, the use of gunfire to disarm O’Neal was not excessive in light of the obvious danger he posed to the lives of others. In addition, the undisputed evidence demonstrates that the officers fired their guns in a good faith effort to stop O’Neal, not out of a malicious desire to cause harm. Although the injury inflicted was the worst possible, death, the result of the use of force is but one factor to be considered in determining if such force was excessive. Despite the tragic outcome of Waits’s and Roseberry’s encounter with O’Neal, we remain convinced that they did not use excessive force in attempting to subdue him. In short, then-reaction to O’Neal’s violent behavior does not “shockQ the conscience” or “offend ... hardened sensibilities.” Rochin, 342 U.S. at 172, 72 S.Ct. at 209-10. Our opinion does not change because Roseberry fired a second shot at O’Neal. As the plaintiffs admitted in their brief and at oral argument, Roseberry fired his second shot “immediately” after his first, and at the time of the second shot, O’Neal was still on his feet, holding his knife and spinning from the force of the first volley of shots. These undisputed facts convince us that Roseberry’s second shot was part of his initial reaction to O’Neal’s attempt to stab him, and not, as the plaintiffs would have us believe, a brutal, gratuitous use of force against a visibly disabled suspect. Viewed as part of his initial reaction to O’Neal’s attack, and in light of the unusual circumstances facing the officers that evening, Roseberry’s firing of two shots in rapid succession in an attempt to guarantee O’Neal’s apprehension did not constitute excessive force. B. The Fourth Amendment The plaintiffs also base their section 1983 action on the fourth amendment, which provides in pertinent part that “[t]he right of the people to be secure in then-persons ... against unreasonable searches and seizures shall not be violated.” As the Court recently noted in Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985), “there can be no question that apprehension by the use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment.” Id. at 7, 105 S.Ct. at 1699. Reasonableness is determined by “ ‘balancing] the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.’ ” Id. at 8, 105 S.Ct. at 1699 (quoting United States v. Place, 462 U.S. 696, 703, 103 S.Ct. 2637, 2642, 77 L.Ed.2d 110 (1983)). Under this balancing test, the plaintiffs’ fourth amendment claim must fail. Although O’Neal’s “fundamental interest in his own life need not be elaborated upon,” id. at 9, 105 S.Ct. at 1700, even such a weighty interest may be counterbalanced by governmental interests in effective law enforcement, as in this case. Waits and Roseberry used deadly force to protect themselves and the people at the hospital from O’Neal, who was armed and, as the blood-covered floors and injured bodies demonstrated, extremely dangerous. Considering the trying circumstances that the officers faced, their reaction, including Ro-seberry’s second shot, was reasonable and hence within the bounds of the fourth amendment. III. On cross-appeal, the defendants argue that the district court abused its discretion in not granting them attorney’s fees under 42 U.S.C. § 1988 or Federal Rule of Civil Procedure 11. Pursuant to section 1988, a district court may award attorney’s fees to prevailing defendants if “ ‘the plaintiff’s action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith.’ ” Hughes v. Rowe, 449 U.S. 5, 14, 101 S.Ct. 173, 178, 66 L.Ed.2d 163 (1980) (quoting Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421, 98 S.Ct. 694, 700, 54 L.Ed.2d 648 (1978)). “The fact that a plaintiff may ultimately lose his case is not in itself a sufficient justification for the assessment of fees.” Id., 101 S.Ct. at 178. Similarly, a court may require a party or its counsel to pay reasonable attorney’s fees to the prevailing party pursuant to Federal Rule of Civil Procedure 11 as a sanction for filing an action that has no factual or legal foundation. See Donaldson v. Clark, 819 F.2d 1551, 1555-56 (11th Cir.1987) (en banc). Simply because the district court granted the defendants’ motion for summary judgment does not mean that the plaintiffs’ action was frivolous. As the district court pointed out in its order denying fees, in ruling on the motion for summary judgment, it “reviewed a great deal of caselaw [sic] on the issue of when deadly force constitutes unreasonable and excessive force within the meaning of the Constitution,” and “did not find any case with a fact situation similar to the one at hand.” We agree with the district court that although the plaintiffs’ section 1983 suit does not merit relief, their causes of action were plausible. Given this, we cannot say that the district court abused its discretion in denying attorney fees under section 1988 or Rule 11. Cf. Hughes v. Rowe, 449 U.S. at 15, 101 S.Ct. at 179 (allegations properly dismissed for failure to state a claim deserved and received careful attention of the courts and thus were not groundless or without foundation). For the foregoing reasons, the judgment of the district court is AFFIRMED. . The plaintiffs claim that O’Neal’s outburst was caused by medication he was given while a patient at the hospital. . The complaint also asserted pendent state claims against Roseberry and Waits for wrongful death and against Doctor’s Hospital for wrongful death and medical malpractice. Upon granting summary judgment for the defendants, the district court dismissed the pendent claims without prejudice. . In pertinent part, 42 U.S.C. § 1983 provides as follows: Every person who, under color of any statute, ordinance, regulation, custom or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law. .The complaint alleged that the defendants had violated O’Neal’s rights "to life, equal protection of the laws, and freedom from cruel and unusual punishment under the Fifth, Eighth and Fourteenth Amendments to the United States Constitution." The district court noted that “[i]n response to defendants’ motion for summary judgment, plaintiffs appear to assert that O’Neal’s life was unreasonably seized in violation of the Fourth Amendment." Accordingly, the district court analyzed the plaintiffs’ claim under the fourth amendment, even though it was not mentioned in their complaint. In their briefs to this court, the plaintiffs continue to argue that O’Neal’s rights under the fourth amendment were violated. Thus, we will also proceed on the assumption that the plaintiffs’ claim is brought under both the fourth and fourteenth amendments. As for the remaining constitutional claims asserted in their complaint, the plaintiffs concede that their eighth amendment claim must fail as a matter of law; their equal protection claim is also groundless and does not merit discussion. . The plaintiffs stress that Roseberry’s second shot hit O’Neal in the back, as if this conclusively demonstrates that this shot was fired "maliciously and sadistically for the very purpose of causing harm.” Gilmere, 774 F.2d at 1501. As the plaintiffs admit, however, Roseberry fired his second shot “immediately" after his first. At the time Roseberry fired his second shot he could not have known that O’Neal would twist around from the force of the first round of shots and consequently be hit in the back by the second shot. Ilius, the fact that Roseberry’s second shot hit O’Neal in the back does not transform Rosebenys conduct into a violation of substantive due process. . The dissent maintains that summary judgment was improper because there is a conflict in the record regarding the proportionality of the force used, and "such conflict is for the ultimate fact finder, not this court, to resolve and then weigh against the fact that O’Neal lost his life.” The dissent, however, seems to confuse the process of finding historical facts, a function of the jury, with the distinct process of determining whether those historical facts constitute a substantive due process or fourth amendment violation, a function of the court. See Gilmere, 774 F.2d at 1500-01 (court must determine whether there was substantive due process violation by looking to four factors); Tennessee v. Garner, 471 U.S. 1, 8, 105 S.Ct. 1694, 1699, 85 L.Ed.2d 1 (1985) (reasonableness under fourth amendment is question of law). The proportionality of the force used, the focus of the second prong of the Gilmere due process test and a factor in determining reasonableness under the fourth amendment, is for the court, not the jury, to consider. In a case such as this, where the historical facts are undisputed, it is this court's duty to decide, as a matter of law, whether the facts support the appellants’ constitutional claim. . Citing Gamer, the plaintiffs argue that the officers violated O’Neal’s fourth amendment rights because they shot at him although he was not trying to escape. The passage from Gamer that the plaintiffs rely upon states as follows: [I]f the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given. 471 U.S. at 11-12, 105 S.Ct. at 1701. We are not persuaded by this argument. Initially, we take issue with the plaintiffs’ underlying factual assumption that O’Neal was not trying to escape when he was shot. O'Neal’s attempt to stab Roseberry could very well be interpreted as an attempt to escape from the officers and continue his rampage through the hospital. Next, we note that the plaintiffs have misread Gamer to hold that a police officer can no longer use deadly force to defend himself against a suspect’s use of deadly force, unless the suspect is also trying to escape. A more sensible interpretation of the above quoted passage is that a police officer may, under certain circumstances, use deadly force to prevent the escape of a suspect; it does not mean that the use of deadly force is limited to those instances where a suspect is trying to escape. Question: This question concerns the second listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the race or ethnic identity of this litigant as identified in the opinion? A. not ascertained B. caucasian - specific indication in opinion C. black - specific indication in opinion D. native american - specific indication in opinion E. native american - assumed from name F. asian - specific indication in opinion G. asian - assumed from name H. hispanic - specific indication in opinion I. hispanic - assumed from name J. other Answer:
songer_genresp2
I
What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the second listed respondent. If there are more than two respondents and at least one of the additional respondents has a different general category from the first respondent, then consider the first respondent with a different general category to be the second respondent. WASHINGTON RY. & ELECTRIC CO. v. DISTRICT OF COLUMBIA. (Court of Appeals of District of Columbia. Submitted January 4, 1926. Decided February 1, 1926.) No. 4293. 1. Street railroads <@=73 — Car remodeled in 1905 held not compliance with statutory requirements respecting vestibule for motorman. Street car, provided in 1905 with glass and wood vestibule, open on each side of platform for passengers, which type was then as far as street car manufacture had advanced, held in 1924 not compliance with Act Cong. March 3, 1905, requiring a glass vestibule surrounding “as nearly as possible” the place where the motorman stands. 2. Statutes <@=47 — Statute relating to motorman’s vestibule held not void for indefiniteness and uncertainty. Act Cong. March 3, 1905, requiring street cars to be provided with “a glass vestibule, surrounding, as nearly as possible, the place where the motorman operating said car stands” held not void for indefiniteness and uncertainty. 3. Street railroads <@=73 — Statute relating to motorman’s vestibule held not impliedly repealed. Act Cong. March 3, 1905, requiring street cars to be provided with a glass vestibule surrounding motorman, held not impliedly repealed by Act Oong. May 28, 1908,. which by section 16 vested Interstate Commerce Commission with authority over equipment and service, or by Act March 4, 1913, which by section 8, par. 96, conferred authority on Public Utilities Commission. 4. Statutes <§=»!59 — General statutes, without negative words, do not repeal particular provisions, unless irreconcilable. Repeals by implication are not favored, and general statutes, without negative words, will not repeal particular provisions of a former statute, unless irreconcilably inconsistent. In Error to Police Court of the District of Columbia. The Washington Railway & Electric Company was convicted of violating the statute respecting motorman’s vestibule on street cars, and it brings error. Affirmed. S. R. Bowen and H. W. Kelly, both of Washington, D.'C., for plaintiff in error. P. H. Stephens, of Washington, D. C., for the District of Columbia. Before MARTIN, Chief Justice, VAN ORSDEL, Associate Justice, and GRAHAM, Presiding Judge of the United States Court of Customs Appeals. MARTIN, Chief Justice. This is an appeal from a judgment imposed upon the street railway company by the police court, upon an information and complaint charging it with the operation of a certain street car, to wit, No. 426, on March 31, 1924, and failing to provide the same with a glass vestibule surrounding as nearly as possible the place where the motorman operating the car stood, in violation of an Act of Congress approved March 3, 1905. 33 Stat. 1001. That aet provides: “That every person or corporation operating street cars in the .District of Columbia shall provide each of the same with a glass vestibule, surrounding, as nearly as possible, the place where the motorman operating said car stands, so that said motorman shall be protected from inclement weather,” subject to the proviso: “That the requirements of this act shall not apply to cars operated from the first day of April to the first day of November of each and every year.” A violation of the aet was made a misdemeanor punishable by a fine. For its defense the company contended that the act in question was no longer in force, for that it was repealed by the Act of Congress approved May 23, 1908, 35 Stat. 250, or that, if not repealed by that act, it was repealed by the Act of Congress approved March 4, 1913, 37 Stat. 938; and furthermore the company denied that it had violated any act of Congress as charged in. the information. It appears that prior to March 3, 1905, the company operated a large number of street ears which had no glass vestibules in front or at” the sides of the platform to protect the motorman from the weather. But immediately after that date the company remodeled all of its ears operated between November 1st and March 31st of each year, installing open end glass and wood vestibules. These ears contained a glass and wood vestibule in front of the motorman, but left each side of the platform open for passengers to be received and discharged. The ear now in question, to wit, No. 426, is one of those so remodeled. This type of construction was as far as the manufacture of street cars had advanced in the year 1905, but afterwards cars were manufactured with platforms surrounded in front and on one side by wood and glass vestibules, leaving the other side open for the entrance and exit of passengers, and still later ears were made with platforms completely surrounded by wood and glass vestibules. It appears that, whenever the company purchased new cars, it procured such as had the most advanced type of vestibule construction; and also that it expended large sums of money in remodeling many cars already owned by it, in order to equip them with approved vestibules. Nevertheless during rush hours in the winter the company continued to operate car No. 426, having a vestibule in front of the motorman, with both sides of the platform entirely open. We may say that in our opinion this could constitute a violation by the company of the provisions of the Act of March 3, 1905, if in force, notwithstanding the care and expense devoted by the company to the purchase or remodeling of its other cars. It cannot be maintained that in the year 1924 such a car would answer the requirements of the act for “a glass vestibule, surrounding as nearly as possible the place where the motorman operating said car stands, so that said motorman shall be protected from inclement weather.” Nor do we think that the act was void for indefiniteness and uncertainty, under the rule declared by this court in the “crowded car” case. United States v. Capital Traction Co., 34 App. D. C. 592, 19 Ann. Cas. 68. We come next to the question whether the Act of March 3, 1905, was repealed by the Act of May 23,1908. It is not claimed that the latter expressly repealed the former, but that it impliedly served .as a repeal or substitute for it. In the latter act (section 16) Congress invested the Interstate Commerce Commission with authority to compel 'every street railroad company operating a street railway in the District to supply and operate a sufficient number of cars, clean, sanitary, in good repair, with proper and safe power, equipment, appliances, and service, comfortable and convenient, and so operate the same as to give expeditious passage to all persons desiring the use of said cars. The Commission was empowered to make, alter, amend, and enforce all needful rules and regulations to secure the obedience of the companies and their employees to the orders and regulations of the Commission. This enactment was not inconsistent with or repugnant to the provisions of the Aet of March 3, 1905. The former aet dealt specifically and exclusively with the construction of vestibules for the protection of the company’s motormen; the latter, with the comfort, convenience, and safety of the passengers upon the ears; and the two acts were capable of concurrent enforcement. It is a well-established rule that repeals by implication are not favored, and that a general statute, without negative words, will not repeal the particular provisions of a former statute, unless, the two acts are irreconcilably inconsistent. United States v. Sampson, 19 App. D. C. 419; Wood v. United States, 16 Pet. 342, 10 L. Ed. 987; Henderson’s Tobacco, 11 Wall. (78 U. S.) 652, 657, 20 L. Ed. 235; Wilmot v. Mudge, 103 U. S. 217, 26 L. Ed. 536; Frost v. Wenie, 15 S. Ct. 532, 157 U. S. 46, 39 L. Ed. 614. We conclude accordingly that the earlier act-was not repealed by the Act of May 23, 1908. We are also of the opinion, for the same-reason, that it was not repealed by the Act of March 4,1913. The latter aet (paragraph 96 of section 8) conferred upon the Public Utilities Commission the authority theretofore- possessed by the Interstate Commerce Commission over "the street railroad companies of the District. This authority was at the same time enlarged and made more definite. But in paragraph 101 of the act it was provided that all statutes and regulations then in force, except as modified or changed by the aet, or until modified or changed under its provisions, should remain in full force and effect, until altered, amended, or repealed according to .law, and that all statutes and regulations inconsistent and repugnant to the provisions of the act were repealed, but only so far as inconsistent and repugnant thereto. The Act of March 3, 1905, was in full force at the time of the enactment of this aet, and was not inconsistent with or repugnant to it. Nor does it appear from the record that the Public Utilities Commission has at any time undertaken to abrogate it. A suggestion appears in the record that the Commission “acquiesced” in a partial departure by the company from its requirements. This, however, even if true, was not intended as a modification of the statute, for the record discloses that the Commission repeatedly referred to it as still in effeet. The police court was right in its judgment, which is hereby affirmed, with costs. Question: What is the 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:
sc_lcdisposition
B
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the treatment the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed, that is, whether the court below the Supreme Court (typically a federal court of appeals or a state supreme court) affirmed, reversed, remanded, denied or dismissed the decision of the court it reviewed (typically a trial court). Adhere to the language used in the "holding" in the summary of the case on the title page or prior to Part I of the Court's opinion. Exceptions to the literal language are the following: where the Court overrules the lower court, treat this a petition or motion granted; where the court whose decision the Supreme Court is reviewing refuses to enforce or enjoins the decision of the court, tribunal, or agency which it reviewed, treat this as reversed; where the court whose decision the Supreme Court is reviewing enforces the decision of the court, tribunal, or agency which it reviewed, treat this as affirmed; where the court whose decision the Supreme Court is reviewing sets aside the decision of the court, tribunal, or agency which it reviewed, treat this as vacated; if the decision is set aside and remanded, treat it as vacated and remanded. Kristina BOX, Commissioner, Indiana Department of Health, et al. v. PLANNED PARENTHOOD OF INDIANA AND KENTUCKY, INC., et al. No. 18-483 Supreme Court of the United States. Decided May 28, 2019 Per Curiam. Indiana's petition for certiorari argues that the Court of Appeals for the Seventh Circuit incorrectly invalidated two new provisions of Indiana law: the first relating to the disposition of fetal remains by abortion providers; and the second barring the knowing provision of sex-, race-, or disability-selective abortions by abortion providers. See Ind. Code §§ 16-34-2-1.1(a)(1)(K), 16-34-3-4(a), 16-34- 4-4, 16-34-4-5, 16-34-4-6, 16-34-4-7, 16-34- 4-8, 16-41-16-4(d), 16-41-16-5 (2018). We reverse the judgment of the Seventh Circuit with respect to the first question presented, and we deny the petition with respect to the second question presented. I The first challenged provision altered the manner in which abortion providers may dispose of fetal remains. Among other changes, it excluded fetal remains from the definition of infectious and pathological waste, §§ 16-41-16-4(d), 16-41-16-5, thereby preventing incineration of fetal remains along with surgical byproducts. It also authorized simultaneous cremation of fetal remains, § 16-34-3-4(a), which Indiana does not generally allow for human remains, § 23-14-31-39(a). The law did not affect a woman's right under existing law "to determine the final disposition of the aborted fetus." § 16-34-3-2(a). Respondents have never argued that Indiana's law creates an undue burden on a woman's right to obtain an abortion. Cf. Planned Parenthood of Southeastern Pa. v. Casey , 505 U. S. 833, 874, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) (plurality opinion). Respondents have instead litigated this case on the assumption that the law does not implicate a fundamental right and is therefore subject only to ordinary rational basis review. See Planned Parenthood of Indiana and Kentucky, Inc. v. Commissioner of Indiana State Dept. of Health , 888 F. 3d 300, 307 (C.A.7 2018). To survive under that standard, a state law need only be "rationally related to legitimate government interests." Washington v. Glucksberg , 521 U. S. 702, 728, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997). The Seventh Circuit found Indiana's disposition law invalid even under this deferential test. It first held that Indiana's stated interest in "the 'humane and dignified disposal of human remains' " was "not ... legitimate." 888 F. 3d at 309. It went on to hold that even if Indiana's stated interest were legitimate, "it [could not] identify a rational relationship" between that interest and "the law as written," because the law preserves a woman's right to dispose of fetal remains however she wishes and allows for simultaneous cremation. Ibid. We now reverse that determination. This Court has already acknowledged that a State has a "legitimate interest in proper disposal of fetal remains." Akron v. Akron Center for Reproductive Health, Inc. , 462 U. S. 416, 452, n. 45, 103 S.Ct. 2481, 76 L.Ed.2d 687 (1983). The Seventh Circuit clearly erred in failing to recognize that interest as a permissible basis for Indiana's disposition law. See Armour v. Indianapolis , 566 U. S. 673, 685, 132 S.Ct. 2073, 182 L.Ed.2d 998 (2012) (on rational basis review, "the burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it"). The only remaining question, then, is whether Indiana's law is rationally related to the State's interest in proper disposal of fetal remains. We conclude that it is, even if it is not perfectly tailored to that end. See ibid. (the State need not have drawn "the perfect line," as long as "the line actually drawn [is] a rational" one). We therefore uphold Indiana's law under rational basis review. We reiterate that, in challenging this provision, respondents have never argued that Indiana's law imposes an undue burden on a woman's right to obtain an abortion. This case, as litigated, therefore does not implicate our cases applying the undue burden test to abortion regulations. Other courts have analyzed challenges to similar disposition laws under the undue burden standard. See Planned Parenthood of Indiana and Kentucky, Inc. v. Commissioner of Indiana State Dept. of Health , 917 F.3d 532, 534-535 (CA7, 2018) (Wood, C. J., concurring in denial of rehearing en banc). Our opinion expresses no view on the merits of those challenges. II Our opinion likewise expresses no view on the merits of the second question presented, i.e. , whether Indiana may prohibit the knowing provision of sex-, race-, and disability-selective abortions by abortion providers. Only the Seventh Circuit has thus far addressed this kind of law. We follow our ordinary practice of denying petitions insofar as they raise legal issues that have not been considered by additional Courts of Appeals. See this Court's Rule 10. * * * In sum, we grant certiorari with respect to the first question presented in the petition and reverse the judgment of the Court of Appeals with respect to that question. We deny certiorari with respect to the second question presented. It is so ordered. Justice SOTOMAYOR would deny the petition for a writ of certiorari as to both questions presented. 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_bank_r1
B
What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. Your task is to determine whether or not the first listed respondent is bankrupt. If there is no indication of whether or not the respondent is bankrupt, the respondent is presumed to be not bankrupt. UNITED STATES of America ex rel. Sam DE STEFANO, Petitioner-Appellant, v. Joseph I. WOODS, Sheriff of Cook County, Illinois, Respondent-Appellee. No. 16070. United States Court of Appeals Seventh Circuit. July 6, 1967. Rehearing Denied Aug. 3, 1967. Anna R. Lavin, Chicago, Ill., for appellant. John J. Stamos, First Asst. State’s Atty., Thomas A. Hett, Asst. State’s Atty., Chicago, Ill., for appellee, Elmer C. Kissane, Asst. State’s Atty., of counsel. Before SCHNACKENBERG, KILEY and SWYGERT, Circuit Judges. SCHNACKENBERG, Circuit Judge. Sam De Stefano, petitioner, appeals from an order of the district court entered January 31, 1967, dismissing his petition for a writ of habeas corpus, as amended, against Joseph I. Woods, Sheriff of Cook County, Illinois, respondent. The case was disposed of by the court on the pleadings. Petitioner was placed in the custody of respondent pursuant to a final order of the Appellate Court of Illinois, First District, People v. De Stefano, 64 Ill. App.2d 368, 212 N.E.2d 368 (1965), cert., denied 385 U.S. 989, 87 S.Ct. 594, 17 L. Ed.2d 450. In three orders defendant had been found guilty of direct criminal contempts of court under the laws of Illinois for his conduct in open court during the trial of a criminal ease against him, in the Criminal Division of the Circuit Court of Cook County, Illinois. As revealed by the opinion of the Appellate Court, the conduct of defendant was appraised by that court, at 387-388, 212 N.E.2d at 379: “We find the instant contempt orders recite flagrant misconduct, disrespect and open defiance of the court’s authority, continued in the face of repeated warnings and findings of contempt during the trial. These contempts clearly embarrassed the court, disrupted and defeated the prompt and fair administration of justice. No court should permit such gross, deliberate and blatant disrespect for the court to go unpunished, whether by a lawyer or by a layman acting pro se in his own defense. Our courts could not long endure under such circumstances. * * * ” For his acts of contempt of court, defendant was sentenced to three concurrent one-year sentences in the county jail and, in addition, to one of the sentences a $2,000 fine was added. This punishment was imposed at the close of the jury trial. 1. In this court petitioner’s counsel attacks on federal constitutional grounds the sentences imposed for contempt. The attack upon these sentences is based upon the contention that their imposition violated the federal constitution, citing article III § 2, that “The Trial of all Crimes * * * shall be by Jury; * * * ”, as well as the sixth amendment to the constitution. Relianee is also placed on Cheff v. Schnackenberg, 384 U.S. 373, 86 S.Ct. 1523, 16 L.Ed.2d 629 (1966). Respondent’s counsel point out, however, that nothing said in Cheff indicates an intent to repudiate Green v. United States, 356 U.S. 165, 78 S.Ct. 632, 2 L.Ed.2d 672 (1958). In Green, at 183, 78 S.Ct. at 642, the court considered petitioner’s constitutional arguments in that case, saying: “* * The claim is that proceedings for criminal contempts, if contempts are subject to prison terms of more than one year, must be based on grand jury indictments under the clause of the Fifth Amendment providing: ‘No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury * * ‘'.’ (Italics added.) Since an ‘infamous crime’ within the meaning of the Amendment is one punishable by imprisonment in a penitentiary, Mackin v. United States, 117 U.S. 348 [6 S.Ct. 777, 29 L.Ed. 909], and since imprisonment in a penitentiary can be imposed only if a crime is subject to imprisonment exceeding one year, 18 U.S.C. § 4083, petitioners assert that criminal contempts if subject to such punishment are infamous crimes under the Amendment. “But this assertion cannot be considered in isolation from the general status of contempts under the Constitution, whether subject to ‘infamous’ punishment or not. The statements of this Court in a long and unbroken line of decisions involving contempts ranging from misbehavior in court to disobedience of court orders establish beyond peradventure that criminal contempts are not subject to jury trial as a matter of constitutional right. * * * [Italics supplied].” Green was expressly followed in United States v. Barnett, 376 U.S. 681, at 692, 84 S.Ct. 984, 990, 12 L.Ed.2d 23 (1964), where the court said: “Finally, it is urged that those charged with criminal contempt have a constitutional right to a jury trial. This claim has been made and rejected here again and again. Only six years ago we held a full review of the issue in Green v. United States, * * *. It has always been the law of the land, both state and federal, that the courts — except where specifically precluded by statute — have the power to proceed summarily in contempt matters. * * * [Italics supplied].” While we believe that the United States Supreme Court has made it clear that the federal constitution does not require a jury trial in a criminal contempt case, which is what is involved in the ease at bar, counsel for petitioner here contends that Cheff has insured the right to a trial by jury under the federal constitution, even in a state court, when the sentence exceeds six months. We disagree. As we interpret Cheff, the court was there announcing a rule of procedure for federal courts. It was not considering any state court proceeding. Obviously the state court proceeding here involved is subject to the control of the state of Illinois and not to the federal court as to the procedure pursued in punishing for criminal contempts such as here involved. 2. Furthermore, the record shows that, as a result of petitioner’s repeated acts of misconduct in open court in utter disregard of the proper administration of the court’s business, the court imposed three one-year sentences, but with indulgence provided that they should be served concurrently, altho it in addition imposed a fine of $2,000 as to one of the charges of contempt. These facts contradict petitioner’s charge that cruel and unusual punishment was imposed upon him in violation of the eighth amendment to the constitution of the United States. In fact any less punishment would be an invitation to other such persons to vie with petitioner in more flagrant ways of showing their contempt for courts of law. 3. Petitioner’s counsel in this court urges as a ground for reversal that the record of the trial in the state court reflects such eratic behavior by petitioner during the trial that the trial court should have ordered a sanity hearing. In the case at bar, the district court found “that there was not sufficiently called to the attention of the trial judge anything that would warrant a sanity hearing.” We agree. In fact, we highly regard the opportunity of the trial judge to arrive at a correct appraisal of defendant, as he observed his conduct in court. This record is quite different from that in Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966), where the evidence raised a sufficient doubt as to Robinson’s competence to stand trial and, although the matter was called to the attention of the trial court by court-appointed counsel, defendant was convicted in an unduly hurried trial without a fair opportunity to obtain expert psychiatric testimony and without sufficient development of the facts on the issue of defendant’s sanity when he committed the crime as well as his competence at the time of the trial. In the case at bar the contemptuous conduct of petitioner as revealed by the record lacked any aspects of incompetence. Thus nothing was required of either the presiding judge or anyone acting on behalf of petitioner to initiate a sanity hearing. For these reasons, the order from which this appeal was taken is affirmed. Order affirmed. . The trial resulted in De Stefano being found guilty by jury verdict of “illegally offering to vote in manner and form as charged in the indictment” and he was sentenced to the penitentiary for a term of 1 to 3 years. Question: Is the first listed respondent bankrupt? A. Yes B. No Answer:
songer_casetyp1_1-3-1
R
What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Your task is to determine the specific issue in the case within the broad category of "criminal - federal offense". James Butler ELKINS and Raymond Frederick Clark, Appellants, v. UNITED STATES of America, Appellee. No. 15738. United States Court of Appeals Ninth Circuit. Nov. 11, 1957. Krause, Evans & Lindsay, William J. Crawford, Burton J. Fallgren, Por.tland, Or., for appellants. C. E. Luckey, U. S. Atty., Portland, Or., for appellee. Before POPE, FEE and CHAMBERS, Circuit Judges. PER CURIAM. Clark, who, according to his affidavit was convicted jointly with another defendant on seven misdemeanor counts, moves this Court to consolidate his alleged appeal with that of the other defendant and to file three photostatic copies of transcript and to appeal in forma pauperis to the extent that the United States shall pay for his share of this transcript. 28 U.S.C.A. § 1915 provides in part: “(a) Any court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding, civil or criminal, or appeal therein, without prepayment of fees and costs or security therefor, by a citizen who makes affidavit that he is unable to pay such costs or give security therefor. Such affidavit shall state the nature of the action, defense or appeal and affiant’s belief that he is entitled to redress. “An appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith. “(b) In any civil or criminal case the court may, upon the filing of a like affidavit, direct that the expense of furnishing a stenographic transcript and printing the record on appeal, if such printing is required by the appellate court, be paid by the United States, and the same shall be paid when authorized by the Director of the Administrative Office of the United States Courts.” No application has apparently been made to the trial court to appeal in forma pauperis, and therefore there is no certificate in writing that the appeal is not taken in good faith. If such a certificate were of record, this appeal could not be maintained in forma pauper-is. Therefore, the application should have been made to the trial court. Under subsection (b), on an appeal in forma pauperis, the court might direct the expense of furnishing a stenographic transcript and printing the record be paid by the United States. But a condition precedent to such an order would be the filing of an affidavit like that called for in subsection (a). It is true an affidavit was filed by Clark to support his motion, but it did not contain the sworn statement that he is a citizen of the United States. The affidavit is therefore fatally defective. While the question is not yet before us, Clark’s own showing would indicate he is able to pay the docket fee. Elkins and Clark were jointly indicted and jointly tried and convicted in the United States District Court for the District of Oregon. Each appeals. Clark seeks here now to consolidate this appeal with the one filed by Elkins and to proceed in forma pauperis as to the consolidated case. His in forma pauperis procedure would include furnishing this Court with a record reproduced by a photostatic (or similar) process and the government paying one-half of the cost of the transcript of evidence. In the present posture of things, it must be assumed that Elkins is able to pay for a transcript and printing. This Court doubts whether it could with propriety apportion poverty. That Elkins should have the benefit of Clark’s alleged poverty seems quite unfair to the American taxpayer whom Clark would charge with one-half of the cost of transcription. The Court is therefore disposed to extend the time for Clark to docket his appeal and to wait to see if the trial court takes action and to see if Elkins dockets his appeal, furnishes the stenographic transcript of the evidence, and advances his printing costs. In such event, an order of consolidation could be made later. On the other had, if Elkins desires to furnish the record (three copies) and a stenographic transcript of the evidence (three copies), the Court is disposed to waive the printing of the record and to permit consolidation; also, to authorize typewritten briefs for Clark. Question: What is the specific issue in the case within the general category of "criminal - federal offense"? A. murder B. rape C. arson D. aggravated assault E. robbery F. burglary G. auto theft H. larceny (over $50) I. other violent crimes J. narcotics K. alcohol related crimes, prohibition L. tax fraud M. firearm violations N. morals charges (e.g., gambling, prostitution, obscenity) O. criminal violations of government regulations of business P. other white collar crime (involving no force or threat of force; e.g., embezzlement, computer fraud,bribery) Q. other crimes R. federal offense, but specific crime not ascertained Answer:
songer_geniss
G
What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous". NATURAL RESOURCES DEFENSE COUNCIL, INC.; Delaware Audubon Society v. TEXACO REFINING AND MARKETING, INC., Appellant. No. 89-3684. United States Court of Appeals, Third Circuit. Argued April 4, 1990. Decided June 20, 1990. Richard D. Allen (argued), Palmer L. Whisenant, Morris, Nichols, Arsht & Tun-nell, Wilmington, Del., for appellant. James F. Simon (argued), Nancy S. Marks, Nora J. Chorover, Natural Resources Defense Council, Inc., New York City, Richard R. Cooch, Cooch and Taylor, Wilmington, Del., for appellees. Bruce J. Terris, Karen H. Edgecombe, Terris, Edgecombe, Hecker & Wayne, Washington, D.C., for amici curiae Public Interest Research Group of New Jersey, Inc., and Friends of the Earth. Roger J. Marzulla, Hillary J. Salans, Powell, Goldstein, Frazer & Murphy, Washington, D.C., Ann Powers, Chesapeake Bay Foundation, Inc., Annapolis, Md., for ami-cus curiae Chesapeake Bay Foundation, Inc. Before HIGGINBOTHAM, Chief Judge, COWEN and NYGAARD, Circuit Judges. OPINION OF THE COURT COWEN, Circuit Judge. This appeal arises out of a citizen suit filed by the Natural Resources Defense Council, Inc. and the Delaware Audubon Society (collectively referred to hereafter as “the NRDC”) under § 505 of the Clean Water Act (“the Act”), 33 U.S.C. § 1365 (1982 and Supp. Ill), alleging that Texaco Refining and Marketing, Inc. (“Texaco”) illegally discharged effluent into the Delaware River at its Delaware City refinery. After considering motions for summary judgment by both parties, the district court granted the NRDC’s motion on the issue of liability and issued an order permanently enjoining Texaco from further illegal discharges. Because we find that the district court failed to apply the proper standard in deciding whether to issue an injunction under the Act, we will vacate the district court’s order and remand the case for a new determination as to the appropriateness of injunctive relief. I. In order “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters,” 33 U.S.C. § 1251(a), the Act makes unlawful the discharge of any pollutant into navigable waters except as authorized under specific sections of the Act. See generally Gwaltney of Smithfield v. Chesapeake Bay Found., Inc., 484 U.S. 49, 52-53, 108 S.Ct. 376, 379, 98 L.Ed.2d 306 (1987). One of these is § 402 which establishes the National Pollutant Discharge Elimination System (“NPDES”). 33 U.S.C. § 1342. Under § 402 either the Administrator of the Environmental Protection Agency (“EPA”), or a state which has established its own EPA-approved permit program, may issue a permit allowing effluent discharges in accordance with specified conditions. 33 U.S.C. § 1342(b), (c). The holder of a state permit is subject to enforcement action by both the EPA and the state for failure to comply with the permit’s conditions. 33 U.S.C. § 1319, 1342(b)(7). In addition, private citizens may bring civil actions against any person alleged to be in violation of a state permit if the federal or state agencies have not acted. 33 U.S.C. § 1365(a)(1). The Act allows the court in a citizen suit to order injunctive relief and/or impose monetary penalties. 33 U.S.C. § 1365(a). The State of Delaware received its NPDES permit delegation from the EPA on April 1, 1974, and issued a permit to Texaco in 1977 allowing it to discharge limited quantities of 19 categories of industrial waste from its Delaware City refinery into the Delaware River. The permit imposes on Texaco both limitations on the amount of pollutants that can be discharged and monitoring requirements. Specifically, the permit establishes seven monitoring points inside the refinery — referred to as “outfalls” — and specifies the amount of each effluent category — referred to as “parameters” — that can be discharged at that point. Texaco must periodically conduct certain specified tests at each of the outfalls and publicly report the results in monthly Discharge Monitoring Reports (“DMRs”). As required by the Act, the NRDC notified Texaco in March 1988 that they intended to file a citizen suit against the company for 342 permit violations occurring at the Delaware City refinery between January 1983 and October 1987. Subsequently, on May 17, 1988, the NRDC filed a complaint charging Texaco with 354 violations, including some violations that had occurred since October 1987. The NRDC later dropped 11 alleged violations apparently in response to a statute of limitations argument raised by Texaco. On December 9, 1989, Texaco filed a motion for partial summary judgment based on several grounds: the court’s lack of subject matter jurisdiction over some of the alleged permit violations occurring pri- or to the filing of the complaint and which were not either ongoing or likely to recur; the claims were moot under the principles of Gwaltney of Smithfield v. Chesapeake Bay Foundation Inc., 484 U.S. 49, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987); and that the claims were barred by the applicable statute of limitations. One week later the NRDC filed their own motion for summary judgment on the issue of liability based on the reported parameter exceedances in Texaco’s DMRs. In their motion, the NRDC sought declaratory and injunctive relief, and requested a hearing to determine the appropriate amount of damages. On April 7, 1989, Texaco filed a supplemental motion for summary judgment alleging that a recent ownership transfer of the Delaware City refinery and the issuance of a new NPDES permit to the new owner rendered the NRDC’s claims moot. The district court denied Texaco’s motion for partial summary judgment reasoning that even if some of the parameter violations alleged by the NRDC were wholly past violations, i.e., not ongoing or likely to recur, the fact that other parameter violations were ongoing at the time the complaint was filed gave the court jurisdiction over all permit violations. Natural Resources Defense Council, Inc. v. Texaco Refining and Marketing, Inc., 719 F.Supp. 281, 287 (D.Del.1989). In addition, the court rejected Texaco’s supplemental motion for summary judgment concluding that it could enjoin Texaco from violating the new permit, based on its violations of the old one, at least as to the old parameter limitations which are either incorporated into, or are less strict than, the parameter limitations listed in the new permit. Id. at 289-90. The district court also found that since Texaco is a 50% partner in Star Enterprise, the Act should not be narrowly construed to forbid enforcement against Texaco simply because it is not the currently named permit holder. Id. at 290-91. The district court granted the NRDC’s motion for summary judgment based on the submitted DMRs. The court rejected Texaco’s argument that the prima facie violations contained in the DMRs were due to sampling errors, system upsets, or statistical outliers. Instead, the court held that as a matter of law the reported parameter exceedances in Texaco’s DMRs were conclusive proof of permit violations and could not be impeached by either a claim of sampling error or that some of the alleged violations were statistical outliers. Id. at 288-89. Moreover, the court found that the upset defense was not incorporated into Texaco’s permit, either expressly or by reference to the relevant sections of the EPA’s regulations, and thus could not be raised by the company. Id. at 289. Thus, the court concluded that Texaco had raised no genuine issue of material fact as to its liability. Having established that Texaco violated the Act, the court enjoined the company, its officers, agents, servants, employees, and those persons in active concert or participation with Texaco, and who receive actual notice of the court’s order, from violating terms of the new permit which were either carried over from the old permit or were made stricter in the new version. Id. at 292; App. 462-64 (Order). The penalty phase of the case has not yet proceeded to trial. Texaco now appeals the district court’s order denying both its motion for summary judgment and its supplemental motion for summary judgment. In addition, Texaco appeals the district court’s order granting the NRDC’s motion for summary judgment and the issuance of a permanent injunction against the company. We have jurisdiction over that part of the district court’s order granting injunctive relief pursuant to 28 U.S.C. § 1292(a)(1) (1982). II. Texaco argues on appeal that the district court erred by applying the wrong standard in determining whether to grant the NRDC’s request for a permanent injunction. More specifically, Texaco argues that the court failed to apply traditional equitable principles in reaching its decision to enjoin the company, including placing the burden on the NRDC to prove that irreparable harm would ensue if the injunction was not granted. We review a trial court’s grant of a motion for a permanent injunction for an abuse of discretion. International Union, UAW v. Mack Trucks, Inc., 820 F.2d 91, 94 (3d Cir.1987). An abuse of discretion exists where the district court’s decision rests upon a clearly erroneous finding of fact, an errant conclusion of law, or an improper application of law to fact. Id. at 95. Although somewhat unclear, from our reading of the opinion it does appear that the district court presumed irreparable harm from the mere fact that the Act had been violated: Finally, [Texaco] contends that even if the Court were empowered to grant in-junctive relief in the present case, such relief would be improper because [the NRDC] have failed to make the necessary showing of imminent irreparable harm. [The NRDC], on the other hand, take the position that traditional equitable principles need not be applied in this case because the [Act] authorizes the Court to enjoin NPDES permit violations on the basis of defendant’s six-year pattern of non-compliance. [The NRDC’s] position has ample support in this Circuit. For example, in United States Postal Service v. Beamish, 466 F.2d 804, 806 (3d Cir.1972), the Third Circuit held that a statute authorizing preliminary in-junctive relief upon a showing of probable cause to believe that the statute is being violated can be considered a substitute for a finding of irreparable harm normally required for a preliminary injunction to issue. See also Gov’t of the Virgin Islands, Dep’t of Conservation and Cultural Affairs v. Virgin Islands Paving, Inc., 714 F.2d 283, 286 (3d Cir.1983). Consequently, based on the enabling language in the Act and the multiple violations contained in [Texaco’s] DMR’s [sic], injunctive relief is appropriate in this case. Texaco, 719 F.Supp. at 291-92. We agree with Texaco that the district court abused its discretion in this case by presuming irreparable harm and not explicitly applying the traditional equitable standard in determining whether an injunction was appropriate for remedying Texaco’s violations of the Act. We believe that the United States Supreme Court’s decisions in Weinberger v. Romero-Barcelo, 456 U.S. 305, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982), and Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987), establish that equitable principles are not displaced by the Act. Furthermore, every circuit court that has interpreted Romero-Barcelo in this context is in accord with our view, as well as numerous district court opinions in this circuit and elsewhere. Finally, we find that the cases relied upon by the district court for its apparently contrary view that an injunction should automatically follow upon a finding of statutory violation are distinguishable from this case. In Romero-Barcelo, the district court found that the Navy had violated the Act by discharging ordnance into the Atlantic Ocean during training operations without first obtaining an NPDES permit from the EPA. Romero-Barcelo, 456 U.S. at 307-08, 102 S.Ct. at 1800-01. The court declined to enjoin the training operations, however, and simply ordered the Navy to apply for a permit from the Administrator of the EPA. Id. at 310, 102 S.Ct. at 1802. Emphasizing in its opinion the broad discretion a court in equity possesses in deciding appropriate relief, the district court reasoned that the Navy’s activities were not causing any appreciable harm to the environment, while injunctive relief would cause grievous, and perhaps irreparable, harm to the Navy and the general welfare. Id. The Court of Appeals for the First Circuit reversed and directed the district court to enjoin all Naval training activities until the Navy obtained a permit. The Court of Appeals held that the traditional equitable balancing of interests was inappropriate where there was an absolute statutory duty to refrain from any pollutant discharge until the permit procedure is followed. Id. at 310-11, 102 S.Ct. at 1802. The Supreme Court reversed the Court of Appeals and remanded the case to the appellate court to review the district court’s decision under an abuse of discretion standard. The Court noted that it had “repeatedly held that the basis for injunc-tive relief in the federal courts has always been irreparable injury and the inadequacy of legal remedies.” Id. at 312, 102 S.Ct. at 1803. The Court explained that in each case the court must balance the competing claims of injury and must consider the consequences to each party, and the public, of the granting or withholding of the requested relief. Id. Thus, “[t]he grant of jurisdiction to ensure compliance with a statute hardly suggests an absolute duty to do so under any and all circumstances, and a federal judge sitting as chancellor is not mechanically obligated to grant an injunction for every violation of law.” Id. at 313, 102 S.Ct. at 1803. The Court cautioned that: Of course, Congress may intervene and guide or control the exercise of the courts’ discretion, but we do not lightly assume that Congress has intended to depart from established principles. As the Court said in Porter v. Warner Holding Co., 328 U.S. 395, 398, 66 S.Ct. 1086, 1089, 90 L.Ed. 1332 (1946): Moreover, the comprehensiveness of this equitable jurisdiction is not to be denied or limited in the absence of a clear and valid legislative command. Unless a statute in so many words, or by a necessary and inescapable inference, restricts the court’s jurisdiction in equity, the full scope of that jurisdiction is to be recognized and applied. Romero-Barcelo, 456 U.S. at 313, 102 S.Ct. at 1804 (citations omitted). However, the Court found nothing in the Clean Water Act’s language, structure or legislative history evidencing Congress’ intent to deny courts their traditional equitable discretion. Id. at 316-18, 319, 102 S.Ct. at 1805-06, 1807. The Court of Appeals had erroneously focused on the integrity of the permit process rather than on the integrity of the Nation's water, the real purpose of the Act. Id. at 314, 102 S.Ct. at 1804. Similarly in Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987), the Court of Appeals for the Ninth Circuit found that the Secretary of the Interior had likely failed to comply with provisions of the Alaska National Interest Lands Conservation Act (“ANILCA”) and directed the district court to grant a preliminary injunction preventing certain oil and gas lease activity. Id. at 540-41, 107 S.Ct. at 1401-02. The Ninth Circuit ruled that “injunctive relief is the appropriate remedy for a violation of an environmental statute absent rare or unusual circumstances.” Id. at 541, 107 S.Ct. at 1402. The Supreme Court again reversed, “see[ing] nothing which distinguishes Romero-Barcelo from the instant case” and finding “no clear indication in [ANIL-CA] that Congress intended to deny federal district courts their traditional equitable discretion in enforcing the [statute].... ” Amoco, 480 U.S. at 544, 107 S.Ct. at 1403. The Court stated: Like the First Circuit in Romero-Barce-lo, the Ninth Circuit erroneously focused on the statutory procedure rather than on the underlying substantive policy the process was designed to effect — preservation of subsistence resources. The District Court’s refusal to issue a preliminary injunction against all exploration activities did not undermine this policy. The District Court ... expressly found that exploration activities would not significantly restrict subsistence uses. The Court of Appeals did not conclude that this factual finding was clearly erroneous .... Instead, the court stated that “irreparable damage is presumed when an agency fails to evaluate thoroughly the environmental impact of a proposed action.” ... This presumption is contrary to traditional equitable principles and has no basis in ANILCA. Moreover, the environment can be fully protected without this presumption. Id. at 544-45, 107 S.Ct. at 1403-04. Every Court of Appeals, which has considered the question, has interpreted Romero-Barcelo and Amoco to require a district court to apply the traditional equitable standard before granting an injunction in eases such as this. For example, the Court of Appeals for the Second Circuit, in Town of Huntington v. Marsh, 884 F.2d 648 (2d Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 1296, 108 L.Ed.2d 473 (1990), found that the “teaching of these [Supreme Court] cases seems clear.” Id. at 652. “[I]n the area of environmental statutes, the Supreme Court has explicitly rejected the notion that an injunction follows as a matter of course upon a finding of statutory violation.” Id. at 651. Thus, the Court of Appeals reversed the district court which had permanently enjoined the Army Corps of Engineers from dumping, or issuing permits to dump, dredged materials at a disposal site because the environmental impact statement filed by the Corps had violated the Ocean Dumping Act and the National Environmental Policy Act. Id. at 649. The Court of Appeals explained that the district court erred in not specifically finding that irreparable damage would ensue if the injunction was not issued: the district court appears to have ruled that the establishment of a statutory violation, without more, warranted an injunction. The court determined that the public interest “in maintaining the physical, chemical and biological balance at the dumpsite” outweighed the competing private interest, defined as “inconvenience and additional cost to owners of docks and piers,” resulting in a determination that “plaintiffs have established irreparable damage.” No consideration was given, however, to the question whether plaintiff had met its burden to establish some actual or threatened injury to “the physical, chemical and biological balance at the dump site [sic],” as distinguished from the Corps’ conceded failure to generate a proper EIS before its initial designation of [the dumpsite]. Id. at 654. See also Northern Cheyenne Tribe v. Hodel, 851 F.2d 1152, 1155-56, 1157-58 (9th Cir.1988); National Wildlife Fed’n v. Burford, 835 F.2d 305, 318, 323-24 (D.C.Cir.1987); Commonwealth of Mass. v. Watt, 716 F.2d 946, 951-53 (1st Cir.1983). Cf. United States v. Lambert, 695 F.2d 536, 540 (11th Cir.1983) (without citing Romero-Barcelo, the court held that: “Environmental litigation is not exempt from [the] requirement” that the plaintiff must prove “irreparable harm is likely if an injunction is not granted [for a violation of the Act]”). Indeed, district courts both in this circuit, see, e.g., Public Interest Research Group of N.J., Inc. v. CP Chemicals, Inc., 26 E.R.C. 2017 (D.N.J.1987), and in other circuits, see, e.g., Natural Resources Defense Council, Inc. v. Outboard Marine Corp., 692 F.Supp. 801, 821-23 (N.D.Ill.1988), have applied the traditional equitable standard in determining whether to grant preliminary and permanent injunctions for violations of the Act. The two cases cited by the district court in support of its apparently contrary position are inapposite. In United States Postal Service v. Beamish, 466 F.2d 804 (3d Cir.1972), this Court affirmed an injunction by the district court even though the district court had not applied the traditional equitable standard. And, in Government of Virgin Islands, Dep’t of Conservation and Cultural Affairs v. Virgin Islands Paving, Inc., 714 F.2d 283 (3d Cir.1983), the NRDC apparently contends — and the district court appears to assume — that this Court reversed the district court’s denial of a preliminary injunction because the district court should not have applied the traditional equitable standard in deciding the question. However, both of these cases are distinguishable from the case sub judi-ce because the statutes under which the injunctions were sought in Beamish and Virgin Islands clearly circumscribed the traditional equitable discretion courts possess in granting injunctive relief. In Beamish, the postal service provision in question provided that: “the United States district court ... shall ... upon a showing of probable cause to believe ... [that 39 U.S.C. § 3005] is being violated, enter a temporary restraining order and preliminary injunction_” Beamish, 466 F.2d at 806 (quoting from 39 U.S.C. § 3007) (emphasis added). Likewise, in Virgin Islands, the statute in question, the Virgin Islands Coastal Zone Management Act of 1978, provided for preliminary injunctive relief upon a “prima facie showing of a violation.” Virgin Islands, 714 F.2d at 284 (quoting from 12 V.I.C. § 913(b)(1)) (emphasis added). In both of these cases, the legislature had effectively intervened through the statute and guided or controlled the exercise of the'courts’ traditional discretion. Thus, both of these statutes are the type that the Supreme Court distinguished from the Clean Water Act in Romero-Barcelo. See Romero-Barcelo, 456 U.S. at 313-14, 102 S.Ct. at 1804-05. Thus, it is clear to us that a district court may issue a permanent injunction under the Act only after a showing both of irreparable injury and inadequacy of legal remedies, and a balancing of competing claims of injury and the public interest. Amoco, 480 U.S. at 544-47, 107 S.Ct. at 1403-05. From our reading of the district court’s opinion in this case it is far from certain that such issues were considered and decided upon by the court. Rather, the district court — especially in light, of its finding that no violation of the new permit has occurred — appears to have erroneously presumed irreparable harm from the mere fact of statutory violation, thus improperly focusing on the integrity of the permit process rather than the integrity of the Nation’s waters. We will remand the case to the district court, therefore, for a proper determination of whether an injunction should issue. However, we do recognize, and so advise the district court on remand, that in applying the traditional equitable standard: “Environmental injury, by its nature, can seldom be adequately remedied by money damages and is often permanent or at least of long duration, i.e. irreparable. If such injury is sufficiently likely, therefore, the balance of harms will usually favor the issuance of an injunction to protect the environment.” Amoco, 480 U.S. at 545, 107 S.Ct. at 1404. III. As previously noted, Texaco raises numerous issues on appeal relating to the district court’s denial of its motion for summary judgment, supplemental motion for summary judgment, and the court’s grant of summary judgment to the NRDC. At oral argument, however, Texaco urged this Court not to reach any other issues it has raised if we decided the standard for in-junctive relief issue in its favor. Since we do decide this issue in Texaco’s favor, we believe that no other issue need be reached in order to effectively resolve this interlocutory dispute between the parties. Sethy v. Alameda County Water Dist., 545 F.2d 1157, 1163 (9th Cir.1976). IV. In summary, we find that the district court erred in issuing a permanent injunction against Texaco without first applying the traditional equitable standard as to when such an order is appropriate. Thus, we will vacate the portion of the district court’s order enjoining Texaco not to violate its new NPDES permit and remand this case to the district court to apply the proper standard. Each party to bear its own costs. . In November 1988, Texaco and the Saudi Arabian Oil Company formed a joint venture partnership called Star Enterprise. Star Enterprise acquired ownership of many of Texaco’s assets, including the Delaware City facility. Each partner owns a 50% interest in the joint venture's assets. . On January 31, 1989, Delaware issued a new permit for the Delaware City refinery naming Star Enterprise as the permittee. This new permit differed from the old permit in several respects, including some changes in permissible effluent limits, the locations of certain outfalls, and the manner in which some effluent discharges are to be calculated. After the competing summary judgments were fully briefed to the district court, the NRDC submitted an additional letter to the court alleging three violations of the new permit and offering DMRs to substantiate the claim. Texaco denied that the DMRs reflected actual permit violations. Believing that this information did not materially affect the parties' positions in the litigation, the district court did not rely on this new information in reaching its decision. Instead, the court specifically found that: ‘‘There have been no reported violations of any of the terms of the reissued permit.” Natural Resources Defense Council, Inc. v. Texaco Refining and Marketing, Inc., 719 F.Supp. 281, 283-84 (D.Del.1989). .The court noted that Texaco had admitted that some parameter violations were ongoing. Natural Resources Defense Council, Inc. v. Texaco Refining and Marketing, Inc., 719 F.Supp. 281, 285 (D.Del.1989). . Texaco contends that this Court also has jurisdiction over the balance of the district court’s order, i.e., denying both of Texaco’s motions for summary judgment and granting the NRDC’s motion, under the principles of Kershner v. Mazurkiewicz, 670 F.2d 440, 449 (3d Cir.1982) (in banc). Because of our disposition of this case, we need not decide this question. . As an example of-legislative intervention, the Court cited TVA v. Hill, 437 U.S. 153, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978). In that case, the Court held that Congress had foreclosed the traditional discretion exercised by a court in equity: The statute involved, the Endangered Species Act, 87 Stat. 884, 16 U.S.C. 1531 et seq., required the District Court to enjoin completion of the Tellico Dam in order to preserve the snail darter, a species of perch. The purpose and language of the statute under consideration in Hill, not the bare fact of a statutory violation, compelled that conclusion. Section 7 of the Act, 16 U.S.C. § 1536, requires federal agencies to "insure that actions authorized, funded, or carried out by them do not jeopardize the continued existence of [any] endangered species ... or result in the destruction or modification of habitat of such species which is determined ... to be critical.” The statute thus contains a flat ban on the destruction of critical habitats. Weinberger v. Romero-Barcelo, 456 U.S. 305, 313-14, 102 S.Ct. 1798, 1804, 72 L.Ed.2d 91 (1982). Since it was conceded that the Tellico Dam would destroy the snail darters’ habitat, an injunction had to be issued because "Congress, it appeared to us, had chosen the snail darter over the dam.” Id. at 314, 102 S.Ct. at 1804. Turning to the Clean Water Act, the Court noted: "That is not the case here. An injunction is not the only means of ensuring compliance [with the Act].” Id. . Moreover, in a different context this Court has cited Weinberger v. Romero-Barcelo, 456 U.S. 305, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982), for the proposition that, absent a clear Congressional statement, courts should not infer that Congress intended to alter equity practices. Flynn v. United States By and Through Eggers, 786 F.2d 586, 591 (3d Cir.1986). In Flynn, we were construing § 6213(a) of the Internal Revenue Code which states that a court “may” grant injunctive relief under specified conditions. Id. Combining Congress' use of the conditional with Romero-Barcelo, we held that relief was not mandatory simply because the statutory conditions were met, but instead lies within the discretion of the court. Id. Therefore, we found "no reason to cast off those principles that traditionally have informed the exercise of a court's broad equity powers,” and required the plaintiff to prove inadequacy of a legal remedy to prevent an irreparable injury before an injunction should issue under this statutory provision. Id. . Whether this Court actually held that the district court should not have applied traditional equitable principles in Government of Virgin Islands, Dep't of Conservation and Cultural Affairs v. Virgin Islands Paving, Inc., 714 F.2d 283 (3d Cir.1983), is not clear. At one point we said that there is no reason for the district court not to apply the same approach as in United States Postal Service v. Beamish, 466 F.2d 804 (3d Cir.1972), when ruling on a motion for a preliminary injunction, i.e., “a statutory provision authorizing preliminary injunctive relief upon a showing of probable cause to believe that the statute is being violated may be considered a substitute for a finding of irreparable harm_” Virgin Islands, 714 F.2d at 286. However, we ended the opinion by explaining: We do not suggest that the district court does not retain discretion as to whether a preliminary injunction should issue. However, such discretion can be prudently exercised only after the relevant factors have been evaluated. In this case, one of the most significant factors to be considered is the public interest which underlies the Air Pollution Control and Coastal Zone Management Acts. Id. at 286. Thus, the actual import of Virgin Islands is probably that a court may use its equitable discretion in not issuing an injunction even if the statutory standard is satisfied. At any rate, for purposes of this discussion, even if we adopt the view of Virgin Islands most favorable to the district court, we still find the court’s reliance on the case unavailing. . See also the discussion in note 5 supra. The NRDC relies on another opinion of this Court for its position that an injunction may issue after a violation of the Act without a determination of the balance of harms. Instant Air Freight Co. v. C.F. Air Freight, Inc., 882 F.2d 797 (3d Cir.1989). However, this case also gives the NRDC no comfort. First, the discussion in Air Freight as to the proper standard to apply in statutory injunction situations is dictum. And, second, in our view the discussion in Air Freight does not differ materially from our discussion of Government of Virgin Islands, Dep’t of Conservation and Cultural Affairs v. Virgin Islands Paving, Inc., 714 F.2d 283, 286 (3d Cir.1983), and, therefore, does not support the position advanced by the NRDC. Question: What is the general issue in the case? A. criminal B. civil rights C. First Amendment D. due process E. privacy F. labor relations G. economic activity and regulation H. miscellaneous Answer:
sc_casesource
031
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court whose decision the Supreme Court reviewed. If the case arose under the Supreme Court's original jurisdiction, note the source as "United States Supreme Court". If the case arose in a state court, note the source as "State Supreme Court", "State Appellate Court", or "State Trial Court". Do not code the name of the state. COMMISSIONER OF INTERNAL REVENUE v. CONNELLY et ux. No. 57. Argued October 21, 1949. Decided November 7, 1949. Ellis N. Slack argued the cause for petitioner. With him on the brief were Solicitor General Perlman, Assistant - Attorney General Caudle, Lee A. Jackson and Irving I. Axelrad. Caesar L. Aiello argued the cause for respondents. With him on the brief was A. Murray Preston. Mr. Justice Minton delivered the opinion of the Court. The question we have here is whether respondent William I. Connelly, hereafter referred to as the taxpayer, is entitled to the $1,500 exclusion from gross income provided by § 22 (b) (13) (A) of the Internal Revenue Code. The taxpayer claimed this additional allowance for the taxable years 1943 and 1944. The Commissioner disallowed the sum deducted. The Tax Court sustained the Commissioner, 8 T. C. 848, and the Court of Appeals reversed, one judge dissenting. 84 U. S. App. D. C. 260, 172 F. 2d 877. We granted certiorari. 337 U. S. 924. On February 19, 1943, taxpayer was a civil service employee in the legal division of the Coast Guard. On that date he was enrolled as a lieutenant commander within one of the six classifications which constituted the temporary members of the Coast Guard Reserve. His enrollment was under authority of the Coast Guard Auxiliary and Reserve Act which provided for the enrolling of “persons (including Government employees without pay other than the compensation of their civilian positions).” 55 Stat. 12, as amended, 56 Stat. 1021, 14 U. S. C. § 307. On April 24, 1944, he was reenrolled as a commander and his class was described as “Coast Guard Civil Service Employees.” After enrollment taxpayer performed duties identical with those which he had previously performed. At the time he was enrolled, his civil service rating was P-5. Later this rating was raised to P-6 and his rank was increased at the same time to that of commander. He received the same pay after enrollment that he had received as a civil service employee. He received overtime pay as a civil service employee, deductions were made from his pay for civil service retirement, and he was subject to civil service regulations as to annual and sick leave. If he had been injured or killed, he would have received benefits as a civil employee of the United States. He was still subject to the Selective Training and Service Act. In the case of sickness or disease contracted while on active duty, taxpayer was entitled to the same hospital and medical care as members of the regular Coast Guard, but dental care was not included. While on active duty he was required to wear the uniform of and he received the courtesies due his rank. He was subject to the laws, regulations and orders of the Coast Guard and to disciplinary action. It is apparent that taxpayer had a dual status. He had a limited military status with the rank of lieutenant commander and later that of commander. He had also the status of a civil service employee, carefully so limited and with all the privileges incident to such status. He was given just enough military status to enable him effectively to carry out his duties. All considerations of an economic character pertaining to his employment by the Government were related to his civil service status. In Mitchell v. Cohen, 333 U. S. 411, we held that one employed in a department of the Federal Government as a civil service employee who was enrolled temporarily in the Volunteer Port Security Force of the Coast Guard Reserve and who worked part-time as a reservist without pay was not an “ex-serviceman” within the meaning of the Veterans’ Preference Act. Looking to the legislative history of that statute, we found that the over-shadowing purpose of the Act was to favor those who had a real record of military service. The Court of Appeals found in this case that by the application of “long-established criteria — oath of office, military duty, and subjection to military discipline” taxpayer had acquired a military status and was thus entitled to the exclusion. We agree that he had a military status for some purposes. But the question for tax purposes is whether he received his pay in that status. To come within § 22 (b)(13)(A), he must have received his compensation “for active service as a commissioned officer.” We understand this to mean that if taxpayer received his pay as a commissioned officer, he would be entitled to the exclusion. It seems equally plain that if he received his pay as a civil service employee and served without military pay and allowances, he is not entitled to the claimed exclusion. As in the Cohen case, the emphasis of the statute is on a military and not on a civilian status. And it is clear that taxpayer received his compensation in a civilian status. As noted, § 307 of the Coast Guard Auxiliary and Reserve Act provided for the enrolling of “persons (including Government employees without pay other than the compensation of their civilian positions).” The Committee on Merchant Marine and Fisheries referred to the amendment by which the parenthetical phrase was added to the statute as being “advisable to clarify this authority [enrollment of temporary members without the pay of their military rank] and resolve any doubt of its applicability to Government employees by specifically providing for temporary membership in the Coast Guard Reserve of Government employees without military pay but with continuance in their civilian positions and the receipt of the compensation thereof.” From the date of the enactment of the enrollment statute there seems to have been no deviation from the view that the taxpayer was to be paid as a civil service employee and not as a commissioned officer. His pay came from congressional appropriations allocated to civilian positions. His pay was at the civil service scale for his grade, with overtime pay and appropriate deductions for civil service retirement. His continuing civilian status is underlined by his receipt of a civil service promotion, from which his military promotion resulted. Indeed, the taxpayer’s certificate of disenrollment described the duty performed as “Chief of Admiralty and Maritime Section having civil service status, receiving civilian but no military pay, and holding rank of Commander as a Temporary Member of the Coast Guard Reserve.” The Court of Appeals ignored the status in which taxpayer was compensated and gave effect to his military status which was provided only to facilitate the performance of his duties in wartime. Taxpayer’s rank was for the purpose of getting the job done, and not for the purpose of receiving compensation. The judgment of the Court of Appeals is Reversed. Mr. Justice Frankfurter and Mr. Justice Douglas took no part in the consideration or decision of this case. As amended by Revenue Act of 1945, § 141 (a), 59 Stat. 571: “(13) Additional allowance for military and naval personnel.— “ (A) In the case of compensation received ... for active service as a commissioned officer ... in the military or naval forces of the United States ... so much of such compensation as does not exceed $1,500.” These classifications and the organization of the Coast Guard Reserve are detailed in Mitchell v. Cohen, 333 U. S. 411, 412-14. See Judge Edgerton, dissenting in part, below: “. . .1 would be unable, in view of the rule that tax exemptions are strictly construed, to say that the compensation of a man who did not receive a commissioned officer’s pay but served ‘without pay other than the compensation of [his] civilian positions’ was ‘received ... for active service as a commissioned officer.’ ” 84 U. S. App. D. C. at 263, 172 F. 2d at 880. H. R. Rep. No. 2525, 77th Cong., 2d Sess., 3 (1942). The Committee added that the amendment “would obviate any possible impairment of the right of such employees to continue to receive the compensation of their civilian positions for the entire period of their performance of active Coast Guard duty as such temporary members. There will be little, if any, change in the nature of their duties after enrollment.” Office Memorandum No. 13-43 issued by the Commandant of the Coast Guard on July 24,1943, states: “6. The attention of heads of offices and chiefs of divisions is invited to the fact that one of the principal reasons for the induction of civil service employees into the military establishment as temporary members of the Reserve was to obtain a homogeneous organization on a military basis and to eliminate differences in procedure and practices applicable to military personnel and civil service personnel engaged on exactly the same duty . . . ." Question: What is the court whose decision the Supreme Court reviewed? 001. U.S. Court of Customs and Patent Appeals 002. U.S. Court of International Trade 003. U.S. Court of Claims, Court of Federal Claims 004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces 005. U.S. Court of Military Review 006. U.S. Court of Veterans Appeals 007. U.S. Customs Court 008. U.S. Court of Appeals, Federal Circuit 009. U.S. Tax Court 010. Temporary Emergency U.S. Court of Appeals 011. U.S. Court for China 012. U.S. Consular Courts 013. U.S. Commerce Court 014. Territorial Supreme Court 015. Territorial Appellate Court 016. Territorial Trial Court 017. Emergency Court of Appeals 018. Supreme Court of the District of Columbia 019. Bankruptcy Court 020. U.S. Court of Appeals, First Circuit 021. U.S. Court of Appeals, Second Circuit 022. U.S. Court of Appeals, Third Circuit 023. U.S. Court of Appeals, Fourth Circuit 024. U.S. Court of Appeals, Fifth Circuit 025. U.S. Court of Appeals, Sixth Circuit 026. U.S. Court of Appeals, Seventh Circuit 027. U.S. Court of Appeals, Eighth Circuit 028. U.S. Court of Appeals, Ninth Circuit 029. U.S. Court of Appeals, Tenth Circuit 030. U.S. Court of Appeals, Eleventh Circuit 031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction) 032. Alabama Middle U.S. District Court 033. Alabama Northern U.S. District Court 034. Alabama Southern U.S. District Court 035. Alaska U.S. District Court 036. Arizona U.S. District Court 037. Arkansas Eastern U.S. District Court 038. Arkansas Western U.S. District Court 039. California Central U.S. District Court 040. California Eastern U.S. District Court 041. California Northern U.S. District Court 042. California Southern U.S. District Court 043. Colorado U.S. District Court 044. Connecticut U.S. District Court 045. Delaware U.S. District Court 046. District Of Columbia U.S. District Court 047. Florida Middle U.S. District Court 048. Florida Northern U.S. District Court 049. Florida Southern U.S. District Court 050. Georgia Middle U.S. District Court 051. Georgia Northern U.S. District Court 052. Georgia Southern U.S. District Court 053. Guam U.S. District Court 054. Hawaii U.S. District Court 055. Idaho U.S. District Court 056. Illinois Central U.S. District Court 057. Illinois Northern U.S. District Court 058. Illinois Southern U.S. District Court 059. Indiana Northern U.S. District Court 060. Indiana Southern U.S. District Court 061. Iowa Northern U.S. District Court 062. Iowa Southern U.S. District Court 063. Kansas U.S. District Court 064. Kentucky Eastern U.S. District Court 065. Kentucky Western U.S. District Court 066. Louisiana Eastern U.S. District Court 067. Louisiana Middle U.S. District Court 068. Louisiana Western U.S. District Court 069. Maine U.S. District Court 070. Maryland U.S. District Court 071. Massachusetts U.S. District Court 072. Michigan Eastern U.S. District Court 073. Michigan Western U.S. District Court 074. Minnesota U.S. District Court 075. Mississippi Northern U.S. District Court 076. Mississippi Southern U.S. District Court 077. Missouri Eastern U.S. District Court 078. Missouri Western U.S. District Court 079. Montana U.S. District Court 080. Nebraska U.S. District Court 081. Nevada U.S. District Court 082. New Hampshire U.S. District Court 083. New Jersey U.S. District Court 084. New Mexico U.S. District Court 085. New York Eastern U.S. District Court 086. New York Northern U.S. District Court 087. New York Southern U.S. District Court 088. New York Western U.S. District Court 089. North Carolina Eastern U.S. District Court 090. North Carolina Middle U.S. District Court 091. North Carolina Western U.S. District Court 092. North Dakota U.S. District Court 093. Northern Mariana Islands U.S. District Court 094. Ohio Northern U.S. District Court 095. Ohio Southern U.S. District Court 096. Oklahoma Eastern U.S. District Court 097. Oklahoma Northern U.S. District Court 098. Oklahoma Western U.S. District Court 099. Oregon U.S. District Court 100. Pennsylvania Eastern U.S. District Court 101. Pennsylvania Middle U.S. District Court 102. Pennsylvania Western U.S. District Court 103. Puerto Rico U.S. District Court 104. Rhode Island U.S. District Court 105. South Carolina U.S. District Court 106. South Dakota U.S. District Court 107. Tennessee Eastern U.S. District Court 108. Tennessee Middle U.S. District Court 109. Tennessee Western U.S. District Court 110. Texas Eastern U.S. District Court 111. Texas Northern U.S. District Court 112. Texas Southern U.S. District Court 113. Texas Western U.S. District Court 114. Utah U.S. District Court 115. Vermont U.S. District Court 116. Virgin Islands U.S. District Court 117. Virginia Eastern U.S. District Court 118. Virginia Western U.S. District Court 119. Washington Eastern U.S. District Court 120. Washington Western U.S. District Court 121. West Virginia Northern U.S. District Court 122. West Virginia Southern U.S. District Court 123. Wisconsin Eastern U.S. District Court 124. Wisconsin Western U.S. District Court 125. Wyoming U.S. District Court 126. Louisiana U.S. District Court 127. Washington U.S. District Court 128. West Virginia U.S. District Court 129. Illinois Eastern U.S. District Court 130. South Carolina Eastern U.S. District Court 131. South Carolina Western U.S. District Court 132. Alabama U.S. District Court 133. U.S. District Court for the Canal Zone 134. Georgia U.S. District Court 135. Illinois U.S. District Court 136. Indiana U.S. District Court 137. Iowa U.S. District Court 138. Michigan U.S. District Court 139. Mississippi U.S. District Court 140. Missouri U.S. District Court 141. New Jersey Eastern U.S. District Court (East Jersey U.S. District Court) 142. New Jersey Western U.S. District Court (West Jersey U.S. District Court) 143. New York U.S. District Court 144. North Carolina U.S. District Court 145. Ohio U.S. District Court 146. Pennsylvania U.S. District Court 147. Tennessee U.S. District Court 148. Texas U.S. District Court 149. Virginia U.S. District Court 150. Norfolk U.S. District Court 151. Wisconsin U.S. District Court 152. Kentucky U.S. Distrcrict Court 153. New Jersey U.S. District Court 154. California U.S. District Court 155. Florida U.S. District Court 156. Arkansas U.S. District Court 157. District of Orleans U.S. District Court 158. State Supreme Court 159. State Appellate Court 160. State Trial Court 161. Eastern Circuit (of the United States) 162. Middle Circuit (of the United States) 163. Southern Circuit (of the United States) 164. Alabama U.S. Circuit Court for (all) District(s) of Alabama 165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas 166. California U.S. Circuit for (all) District(s) of California 167. Connecticut U.S. Circuit for the District of Connecticut 168. Delaware U.S. Circuit for the District of Delaware 169. Florida U.S. Circuit for (all) District(s) of Florida 170. Georgia U.S. Circuit for (all) District(s) of Georgia 171. Illinois U.S. Circuit for (all) District(s) of Illinois 172. Indiana U.S. Circuit for (all) District(s) of Indiana 173. Iowa U.S. Circuit for (all) District(s) of Iowa 174. Kansas U.S. Circuit for the District of Kansas 175. Kentucky U.S. Circuit for (all) District(s) of Kentucky 176. Louisiana U.S. Circuit for (all) District(s) of Louisiana 177. Maine U.S. Circuit for the District of Maine 178. Maryland U.S. Circuit for the District of Maryland 179. Massachusetts U.S. Circuit for the District of Massachusetts 180. Michigan U.S. Circuit for (all) District(s) of Michigan 181. Minnesota U.S. Circuit for the District of Minnesota 182. Mississippi U.S. Circuit for (all) District(s) of Mississippi 183. Missouri U.S. Circuit for (all) District(s) of Missouri 184. Nevada U.S. Circuit for the District of Nevada 185. New Hampshire U.S. Circuit for the District of New Hampshire 186. New Jersey U.S. Circuit for (all) District(s) of New Jersey 187. New York U.S. Circuit for (all) District(s) of New York 188. North Carolina U.S. Circuit for (all) District(s) of North Carolina 189. Ohio U.S. Circuit for (all) District(s) of Ohio 190. Oregon U.S. Circuit for the District of Oregon 191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania 192. Rhode Island U.S. Circuit for the District of Rhode Island 193. South Carolina U.S. Circuit for the District of South Carolina 194. Tennessee U.S. Circuit for (all) District(s) of Tennessee 195. Texas U.S. Circuit for (all) District(s) of Texas 196. Vermont U.S. Circuit for the District of Vermont 197. Virginia U.S. Circuit for (all) District(s) of Virginia 198. West Virginia U.S. Circuit for (all) District(s) of West Virginia 199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin 200. Wyoming U.S. Circuit for the District of Wyoming 201. Circuit Court of the District of Columbia 202. Nebraska U.S. Circuit for the District of Nebraska 203. Colorado U.S. Circuit for the District of Colorado 204. Washington U.S. Circuit for (all) District(s) of Washington 205. Idaho U.S. Circuit Court for (all) District(s) of Idaho 206. Montana U.S. Circuit Court for (all) District(s) of Montana 207. Utah U.S. Circuit Court for (all) District(s) of Utah 208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota 209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota 210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma 211. Court of Private Land Claims Answer: