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songer_stpolicy	B	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the interpretation of state or local law, executive order, administrative regulation, doctrine, or rule of procedure by the court favor the appellant?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". NATURAL GAS PIPELINE COMPANY OF AMERICA, Appellant and Appellee, v. D. D. HARRINGTON et al., Appellees and Appellants. D. D. HARRINGTON et al., Appellees and Appellants, v. NATURAL GAS PIPELINE COMPANY OF AMERICA, Appellant and Appellee. No. 16206. United States Court of Appeals Fifth Circuit. July 9, 1957. Clarence H. Ross, Chicago, 111., D. H. Culton, Amarillo, Tex., Warren T. Spies, Chicago, 111., Ross & O’Keefe, Chicago, 111., Culton, Morgan, Britain & White, Amarillo, Tex., of counsel, for appellants. David T. Searls, Gene M. Woodfin, Houston, Tex., Hugh L. Umphres, Jr., Amarillo, Tex., J. Evans Attwell, Vinson, Elkins, Weems & Searls, Houston, Tex., Umphres & Umphres, Amarillo, Tex., Vinson, Elkins, Weems & Searls, Houston, Tex., Umphres & Umphres, Amarillo, Tex., of counsel, for appellee. Before BORAH, RIVES and BROWN, Circuit Judges. RIVES, Circuit Judge. Restitution was sought by Natural from Harrington for the difference between the contract rate for the purchase of natural gas and the price paid in compliance with an order of the Oklahoma Corporation Commission which was later declared invalid by the United States Supreme Court. The district court found Natural entitled to restitution in the sum of $1,302,491.23. It deducted from the restitution claimed $321,279, being $237,000 paid by Panoma as increased royalties and $84,279 paid as increased gross production taxes, and allowed no interest prior to the date of the judgment. Both Harrington and Natural appeal. Harrington insists that Natural is not entitled to any restitution; Natural contends that the court erred as to each of the several sums deducted, and in denying it full restitution plus interest. Since the district court rendered summary judgment, we must, in examining each of the questions, determine whether there was any genuine issue as to any material fact and whether the judgment was right as a matter of law. Judge Estes’ excellent opinion, reported in 139 F.Supp. at 452, et seq., relieves us of the necessity for making more than a brief statement of the facts. Under the contract effective December 1, 1946, and to endure so long as gas is produced in paying quantities, Harrington had agreed to sell to Natural the gas produced from Harrington’s wells located in some 78,000 acres of gas reserves in the Guymon-Hugoton Field in Texas County, Oklahoma, at 7 cents per M. c. f. measured at 16.4 pounds per square inch, equivalent to 6.253 cents when measured at 14.65 pounds pressure and 60 degrees Fahrenheit. On December 9, 1946, a few days after the effective date of the contract, the Oklahoma Corporation Commission entered its first order fixing a minimum price of seven cents for all gas measured at 14.65 pounds and 60 degrees Fahrenheit removed from the Guymon-Hugoton Field. Natural refused to comply with this order, and, on May 17, 1951, the Oklahoma Commission directed Natural to pay the difference between the contract price and the seven cents minimum price. Natural posted bond and superseded the order. No payments were ever made under that first order. On July 29, 1952, the Oklahoma Commission issued its second order increasing the minimum price to 9.8262 cents. The effective date of this order was delayed until September 10, 1952. On September 9, 1952, Natural notified Panoma, Harrington’s predecessor, that it would appeal from the order and would not supersede, but (repeated with each payment) that it would pay the 9.8262 cents under protest, and would, upon success in the appeal, seek restitution for the amounts paid in excess of the contract price with lawful interest thereon. Without considering the Natural Gas Act enacted by Congress in 1938, 52 Stat. 833, 15 U.S.C. § 717v, the Supreme Court had in 1950 upheld the validity as against certain constitutional objections of the first Oklahoma minimum price order. Cities Service Gas Co. v. Peerless Oil & Gas Co., 340 U.S. 179, 71 S.Ct. 215, 95 L.Ed. 190. Following the landmark case of Phillips Petroleum Co. v. State of Wisconsin, 347 U.S. 672, 74 S.Ct. 794, 98 L.Ed. 1035, the second order was declared invalid on April 11, 1955, because “such a sale and transportation cannot be regulated by a State but are subject to the exclusive regulation of the Federal Power Commission.” Natural Gas Pipeline Co. v. Panoma Corporation, et al., 349 U.S. 44, 75 S.Ct. 576, 99 L.Ed. 866. Meanwhile, on July 1, 1954, pursuant to a plan for liquidation, Panoma transferred all its assets to its stockholders, Harrington, et al., the defendants below. The consent of Natural to certain assignments of the contract incident to such transfer was required, and, in consideration of Natural’s consent, Harrington, et al., executed a letter containing the following obligation: “That we hereby jointly and severally agree on behalf of ourselves, our executors, administrators and assigns to pay you or cause to be paid you any sums of money with lawful interest thereon which you are entitled to have refunded or returned with respect to the payments to Panoma Corporation in excess of the contract price made under protest referred to in said letter of September 9, 1952. We do also jointly and severally, for ourselves, our heirs, executors, administrators and assigns agree to ami do hereby acknowledge and assume: any obligations imposed upon Panoma Corporation by virtue of the letter you addressed to it under date of September 9, 1952.” Harrington, et al., resold the major portion of the assets to third persons, and received therefor $40,000,000 in cash plus other valuable considerations. The restitution here sought is for claimed overpayments for gas delivered between September 10, 1952, the effective date of the second Oklahoma minimum price order, and July 1, 1954, the date of sale of Harrington’s assets. Harrington’s principal defense is based upon the equitable nature of the remedy of restitution so clearly expressed by Mr. Justice Cardozo in Atlantic Coast Line R. Co. v. State of Florida, 295 U.S. 301, 309, 310, 55 S.Ct. 713, 79 L.Ed. 1451. In that case, an order of the Interstate Commerce Commission requiring an increase of intrastate rates because discriminatory against intrastate commerce had been set aside “solely upon the ground that the facts supporting the conclusion were not embodied in the findings” (295 U.S. 311, 55 S.Ct 717). The Commission thereafter “looked into the past and ascertained the facts. In particular, it looked into the very years covered by the claims for restitution and found the inequality and injustice inherent in the Cummer rates during the years they were in suspense and during those they were in force.” 295 U.S. 312, 55 S.Ct. 718. “By the time that the claim for restitution had been heard by the master and passed upon by the reviewing court, the Commission had cured the defects in the form of its earlier decision. During the years affected by the claim there existed in very truth the unjust discrimination against interstate commerce that the earlier decision had attempted to correct. If the processes of the law had been instantaneous or adequate, the attempt at correction would not have missed the mark. It was foiled through imperfections of form, through slips of procedure * * * as the sequel of events has shown them to be.” 295 U.S. at pages 311, 312, 55 S.Ct. at page 717. The Supreme Court directed that the claims for restitution be dismissed, holding that the federal court “discovers through the evidence submitted to the Commission and renewed in the present record that what was charged would have been lawful as well as fair if there had been no blunders of procedure, no administrative delays.” 295 U.S. at page 315, 55 S.Ct. at page 719. See also United States v. Morgan, 307 U.S. 183, 196, 59 S.Ct. 795, 83 L.Ed. 1211. Harrington calls attention that in the instant case the order of the Oklahoma Commission was not invalidated on its merits, or because the rate of 9.8262 cents was unjust or unreasonable, but simply because exclusive jurisdiction was vested in the Federal Power Commission, and that that Commission, by its order of November 14, 1955, accepted as the present effective rate of Harrington’s successor in interest, the same 9.8262 cents. It should further be noted, however, that the invalidity of the order of the Oklahoma Commission was not caused by any defect or imperfection of form or slip of procedure but resulted from a total lack of jurisdiction. Further, the Federal Power Commission by its order of November 14, 1955, spoke for the future only, and did not possess the power enjoyed by the Interstate Commerce Commission in the Atlantic Coast Line case, supra, of looking into the past and ascertaining the facts. Nor does any court possess such power for the purpose of fixing retroactively a just, reasonable, and lawful rate. Here the parties themselves had fixed the rate to be charged by their solemn and binding contract, and that contract rate could be changed only by the Federal Power Commission after a hearing conducted in accordance with Section 5(a) of the Natural Gas Act, 15 U.S.C.A. § 717d(a). United Gas Pipe Line Co. v. Mobile Gas Corporation, 350 U.S. 332, 76 S.Ct. 373, 100 L.Ed. 373. Moreover, in the Atlantic Coast lane case, supra, the railroad carrier -was entitled to the protection of the order of the Interstate Commerce Commission against being required to accept the unreasonably low intrastate rates, while here the primary aim of the Natural Gas Act was “protection of consumers against exploitation at the hands of natural-gas companies.” Phillips Petroleum Co. v. State of Wisconsin, 347 U.S. 672, 685, 74 S.Ct. 794, 800 (concurring opinion of Mr. Justice Frankfurter). Even the Federal Power Commission, which had exclusive jurisdiction, could increase the contract rate only because of considerations of the public interest and not on account of any claimed right of Harrington to relief from an improvident bargain. Federal Power Commission v. Sierra Pacific Power Co., 350 U.S. 348, 355, 76 S.Ct. 368, 100 L.Ed. 388. True, in United Gas Pipe Line Co. v. Mobile Gas Corporation, supra, the contract was filed with the Federal Power Commission, and here it was not so filed. Section 4(c) of the Natural Gas Act, 15 U.S.C.A. § 717c(c), provides that: “Under such rules and regulations as the Commission may prescribe, every natural-gas company shall file with the Commission, within such time (not less than sixty days from the date this act takes effect) and in such form as the Commission may designate, and shall keep open in convenient form and place for public inspection, schedules showing all rates and charges for any transportation or sale subject to the jurisdiction of the Commission, and the classifications, practices and regulations affecting such rates and charges, together with all contracts which in any manner affect or relate to such rates, charges, classifications, and services.” Until the decision in Phillips Petroleum Co. v. State of Wisconsin, 1954, 347 U.S. 672, 74 S.Ct. 794, the parties, and indeed the Commission itself, had proceeded upon the assumption that the Commission had no regulatory jurisdiction over the rates of independent producers. After that decision, the Commission, by its Orders 174 and 174A, entered July 16,1954 and August 6,1954, respectively fixed the time within which such producers could file their rates. Since the Phillips decision, it has become clear to all of the parties that the contract should have been filed with the Commission. The failure to file it earlier, however, did not prevent the jurisdiction of the Commission from attaching. Interstate Natural Gas Co. v. Southern California Gas Co., 9 Cir., 209 F.2d 380, 384. There is nothing in the Natural Gas Act or in the orders of the Federal Power Commission to indicate that, under such circumstances, until the rates were filed there was no effective or lawful rate. To the contrary, the Act expressly provided for delay in such filing, and under the rationale of United Gas Pipe Line Co. v. Mobile Gas Corporation, supra, the contract rate, even though unfiled, became and remained the only lawful rate until changed by order of the Federal Power Commission. Any price in excess of the contract rate was then contrary to the spirit, if not the letter, of the Natural Gas Act. Harrington insists, however, that the excess payments were voluntarily made by Natural, or at least that there was a genuine issue of fact as to whether they were involuntarily made under coercion of “business duress.” Natural, of course, concedes that restitution will not lie if the excess payments were voluntarily made. Further, duress or coercion must exist, and the written protest does not, by itself, make the payments involuntary. Union Pacific R. Co. v. Dodge County Commissioners, 98 U.S. 541, 544, 25 L.Ed. 196; Bank of United States v. Bank of Washington, 1832, 6 Pet. 8, 12, 8 L.Ed. 299. The order of the Oklahoma Commission directed, “That no gas shall be produced from' any well located in the Guymon-Hugoton Field of Oklahoma except at a price of not less than 9.8262c per thousand cubic feet if sold at the wellhead or on the lease or drilling unit from which produced, or a price equivalent to not less than 9.8262c per thousand cubic feet at the wellhead if sold off the lease or drilling unit or otherwise utilized.” Assuming validity of the order, its violation carried criminal sanctions under an Oklahoma Statute (O.S., Title 52, See. 278) providing for a fine of not to exceed $5,000 or imprisonment in the county jail for not more than thirty days, or both such fine and imprisonment on those who violate its conservation laws. Mr. T. Murray Robinson, counsel for Panoma, Harrington’s predecessor, filed an affidavit in which he conceded: “That after said order was entered, Mr. Coleman Hayes, who represented Natural Gas Pipeline Company of America in said proceedings, visited with me by telephone concerning the effect of said order on the relationship of Panoma and Natural. In the course of that conversation I told Mr. Hayes that in my opinion as a lawyer the order of the Commission would become binding unless superseded and that Panoma, like all others, would be compelled to abide thereby, and that in my opinion the order directed producers who were not receiving the minimum price to ceas.e deliveries.” Scant respect would be accorded to the laws of the State of Oklahoma, if it were held that Natural had to go further and speculate on whether Panoma actually would have ceased delivering gas if Natural had refused to pay the increased price. Natural candidly admits that it was motivated not to supersede the order by its desire to seek from the Federal Power Commission increases reflecting the prices paid under the order, and thus to pass on the increase rather than itself bearing the entire risk. We do not agree with Harrington that such motive converted Natural’s payment of the increased rate into a “calculated business maneuver.” If anything, the choice between bearing the entire risk of loss and trying to pass it on increased the business duress on Natural to make payments in accordance with the order. See Union Pacific R. Co. v. Public Service Commission, 248 U.S. 67, 70, 39 S.Ct. 24, 63 L.Ed. 131. Further, Harrington urges that the duress was not imposed by it but was exerted by the Oklahoma Commission. We need not stop to consider whether duress of a third person will suffice (see Restatement of Restitution, Sec. 70b) for, under the circumstances, the Oklahoma Commission was a representative of Harrington and other producers similarly situated. Arkadelphia Milling Co. v. St. Louis S. W. Ry. Co., 249 U.S. 134, 146, 39 S.Ct. 237, 63 L.Ed. 517; see, also, United Gas Pipe Line Co. v. Mobile Gas Corporation, 350 U.S. 332, 347, 76 S.Ct. 373, 100 L.Ed. 373. Harrington urges that an accord and satisfaction was effected by Panoma’s acceptance of Natural’s checks containing notations similar to that copied in the margin. It is elementary, however, that an accord and satisfaction can result only from an agreement, and, clearly, Natural made no offer of any agreement that would preclude it from seeking restitution when each of its checks was accompanied by a letter specifically renewing its protest as follows: “Such payment is, as to any part thereof in excess of that payable under the price provisions of said contract, made involuntarily and under protest with full reservation of all rights to seek restitution thereof as is more particularly set forth in our letter to Panoma Corporation dated September 9, 1952, a copy of which is attached hereto for your information.” We are in full agreement with the conclusion reached by the learned district judge that Natural is entitled to restitution. The district court, however, denied Natural’s claim for restitution in the sum of $321,279 representing payments made by Panoma, Harrington’s predecessor, for increased royalties and increased production taxes. We have held that Panoma had no right to the increased price. It took the same with notice that the rights of all who were to share in such increase were disputed by Natural. It could not voluntarily pay its royalty owners and its taxes on the basis of the increased price at Natural’s expense, when the validity of the increase was in dispute Ward v. Board of County Com’rs of Love County, 253 U.S. 17, 24, 40 S.Ct. 419, 64 L.Ed. 751. We think that the state law provided adequate means by which Panoma could have withheld the increased payments from its royalty owners until the termination of the litigation, or could have paid under protest with a right of recovery, or could reserve the right to itself or its successors to take credit for any overpayment against future royalties. Panoma received the increase in price for the use and benefit of Natural, but it made no effort to protect Natural’s interest. Like considerations are applicable to the payments of taxes on the basis of the increased price. Additionally, it may be noted that Title 68, Section 1475 of the Oklahoma Statutes, 1951, provides for the payment of taxes under protest and their subsequent recovery. Indeed, the Fourteenth Amendment itself would prevent the state from collecting unlawful taxes by coercive means without incurring any obligation to pay them back. Ward v. Board of County Com’rs of Love County, 253 U.S. 17, 24, 40 S.Ct. 419. We hold, therefore, that the district court erred in denying Natural’s claim for restitution to the extent of $321,279.00. We agree with the district court that the clear intent of the letter of the stockholders, Harrington, et al., incident to Panoma’s liquidation (see page 4, ante) was to assume the same liability that rested upon Panoma. We think, however, that its use of the expression “with lawful interest” referred to interest from and after the time when Natural might become entitled to restitution from such stockholders in lieu of Panoma. Ordinarily, a person liable to make restitution is under a duty to pay interest from the time he commits a breach of duty in failing to make restitution. Restatement of Restitution, Sec. 156(b). The duty to make restitution arose on April 11, 1955, when the Oklahoma order was declared invalid by the Supreme Court of the United States. Previous to that date, Panoma’s acceptance of the increased price had been due, not to its fault or volition, but simply to the requirement that it comply with the order of the Oklahoma Commission, and for such period previous to April 11, 1955, we think that interest should not be allowed. See The Claim of Jacobs v. Adams, 1781, 1 Dall. 52, 1 L.Ed. 53. The district court denied the recovery of any interest without seeking to take advantage of its discretionary power to refuse interest (Okeechobee County, Florida v. Nuveen, 5 Cir., 145 F.2d 684, 687), but fully and fairly stating the reasons for such denial. Each of those reasons was known- to the parties on July 1, 1954, when Harrington, et al. agreed to pay Natural “any sums of money with lawful interest thereon which you are entitled to have refunded or returned with respect to the payments to Panoma Corporation in excess of the contract price made under protest referred to in said letter of September 9, 1952.” Further, with deference, we disagree with the reasons assigned by the learned district judge. In our opinion, no duty rested on Natural to supersede the order, Natural’s suggestion of an escrow arrangement should not prejudice its right to interest, and though, it had received increased rates from its customers, such increase was granted subject to the provision recited in the order of the Federal Power Commission, that if Natural be successful in thé litigation, “ * * * it will refund to its utility customers, on a basis to be approved by the Commission, the sum or sums so recovered.” Finally, we find that there was no genuine issue as to any material fact and that Natural was entitled to judgment as a matter of law. Rule 56(c), Federal Rules of Civil Procedure, 28 U.S.C.A. While the judgment might be affirmed in the part complained of in Harrington’s appeal and reversed in the part complained of in Natural’s appeal, it is simpler, we think, to vacate the entire judgment and remand the cause with directions to enter judgment in accordance with this opinion in favor of the plaintiff against the defendants for the sum of $1,623,770.23, together with interest at 6 per cent per annum from April 11, 1955 on such sum or any portions thereof remaining unpaid down to the date of payment, and with costs, and it is so ordered. The costs of this appeal are taxed against D. D. Harrington, et al. Vacated and remanded. . To avoid confusion, particularly from the cross-appeals, D. D. Harrington, ot al, and their predecessors in interest, I’anoma Corporation, will be collectively referred to as “Harrington”, and Natural Pipeline Company of America as “Natural”. . F,or the basic reason of that rule, see 40 Am.Jur., Payment, Sec. 158. . “Acceptance of this check constitutes full payment of and settlement for the account described on the statement attached * * * “Payment of gas purchased on original and supplemental contracts from June 23, 1954 to 10:00 A.M. July 1, 1954.” . “As to the matter of interest, I have concluded that it is just and equitable, under the circumstances of this case, to deny plaintiff’s claim for interest. In so concluding, I have taken into account all the facts and circumstances before me, including the fact that Natural could have superseded the operation of the order as to this gas, and kept the use of the money, by filing a mere undertaking without surety or penal amount (as did Northern Natural Gas Company); that it was willing to waive interest if Panoma would agree to the escrowing of the excess payments; and that for most of the period in question it has been able to recoup the excess payments by increased rates to its customers, so that it has not in fact been deprived of the use of the money.” [139 F.Supp. 463.] Question: Did the interpretation of state or local law, executive order, administrative regulation, doctrine, or rule of procedure by the court favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_appnatpr	1	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. T. D. SMITH, Appellant, v. GREYHOUND LINES, INC., a corporation, Appellee. No. 9402. United States Court of Appeals Tenth Circuit. Aug. 17, 1967. Richard E. Ransom, of Smith & Ransom, Albuquerque, N. M., for appellant. A. H. McLeod, Albuquerque, N. M. (W. A. Keleher and Russell Moore, Albuquerque, N. M., on the brief), for appellee. WILBUR K. MILLER, Senior Circuit Judge and BREITENSTEIN and HILL, Circuit Judges. Of the United States Court of Appeals for the District of Columbia, sitting by designation. HILL, Circuit Judge. Appellant, who was plaintiff in the trial court, appeals from a judgment in favor of appellee-defendant, entered pursuant to a jury verdict. The sole question presented goes to the correctness of a jury instruction. The facts alleged to support a diversity cause of action in tort are as follows: Smith, a citizen of New Mexico, on June 5, 1965, was riding as a fare paying passenger on a bus operated by Greyhound Lines, Inc., a California corporation. At a point within the State of Arizona, the driver of the bus negligently drove the same in such a manner as to cause Smith to be forcibly and violently knocked about in his seat and injured. Plaintiff appeals claiming error of the trial court in refusing to instruct the jury that “[T]he nature of this relationship of passenger and common carrier is such that, in the exercise of ordinary care, the law imposed upon the Greyhound Lines and its driver, C. B. Dean, the duty to exercise the highest degree of skill, diligence and care in promoting the safety of plaintiff, T. D. Smith, in light of the surrounding circumstances, as shown by the evidence.” Instead of the above instruction, requested by the plaintiff, the trial court instructed the jury on “ordinary care” as provided for in the New Mexico Uniform Jury Instructions (1966). Rule 51 of the Federal Rules of Civil Procedure sets out the method of objecting to instructions to a jury: “No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection.” This court has recently and repeatedly emphasized the importance of following Rule 51 in order to preserve the right to object to instructions on appeal. The record sets out the plaintiff’s objections to the court’s proposed instructions on the duty of the common carrier. These objections, however, were made before the jury was instructed. At the conclusion of the instructions to the jury, when the court asked if there were any further objections or exceptions to the instructions, neither attorney made any objections. It is clearly pointed out in Dunn v. St. Louis-San Francisco Railway Co., 10 Cir., 370 F.2d 681, that objections and exceptions made prior to the giving of instructions do not conform with Rule 51. This rule did not originate with the Dunn case but is the result of a long line of cases. See cases cited in Chiodo v. General Waterworks Co., 10 Cir., 38 F.2d 860, n. 2. We therefore find that plaintiff is precluded from raising the issue of the incorrect instructions on appeal. However, we deem it appropriate in this case to briefly demonstrate that even if our prior decisions interpreting Rule 51 permitted us to consider appellant’s objections to the court’s instructions, he could not prevail here. This case is in the federal courts on diversity grounds. It involved a tort case wherein the tortuous act alleged occurred in a state other than the state of the forum, i. e., the alleged act occurred in Arizona, whereas the case was being tried in New Mexico. As a general rule of conflicts law the forum state will apply the law of the state where the injury occurred. 16 Am.Jur.2d § 71. However, in this case, while there was some mention made in pre-trial conference of which law should apply, no foreign law was in fact pleaded or urged upon the court to be applied to the case. It is well settled that a federal court sitting in diversity applies the conflicts law rule of the state of the forum. Klaxon Co. v. Stentor Electric Mfg. Co., Inc., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). The applicable New Mexico law appears to be that if the foreign law is not pleaded or proved or brought before the court the court will apply the law of the forum. Boswell v. Rio De Oro Uranium Mines, Inc., 68 N.M. 457, 362 P.2d 991; Gehman v. Lair, 35 N.M. 17, 288 P. 604. Therefore, the lower court was justified in applying New Mexico law to the case. There appears to be some conflict as to what the New Mexico law is with regard to the duty of care owed by a common carrier to a passenger. Prior New Mexico cases have indicated that the common carrier owes his passenger the highest degree of care in promoting their safety. See Hole v. Womack, 75 N.M. 522, 407 P.2d 362; Thompson v. Anderman, 59 N.M. 400, 285 P.2d 507. On May 5, 1966, the Supreme Court of New Mexico approved for use in the New Mexico Courts the New Mexico Uniform Jury Instructions, (1966), the same to “be effective and apply to all civil cases filed in district court on and after September 1, 1966.” The trial judge construed this to include civil cases on file on the effective date. We would not say that such construction is clearly contrary to the language above quoted. This work expressly provides that there be no instruction given as to the highest degree of care in causes of action between a passenger and a common carrier. See New Mexico Uniform Jury Instructions, (1966), 6.5. These instructions were approved by the New Mexico Supreme Court after apparent close review and some changes not pertinent here. In a situation where the applicable state law is not exactly clear the federal appellate court gives great weight to the trial court’s interpretation of the state law and will not reverse the trial court’s view unless it is clearly erroneous. Industrial Indemnity Company v. Continental Casualty Company, 10 Cir., 375 F.2d 183 (1967); Bushman Construction Company v. Conner, 10 Cir., 351 F.2d 681. Affirmed. . New Mexico Statutes Annotated, 1953, § 21-1-1(51) (k), 1953 Comp., as amended May 5, 1966. Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number. Answer:
songer_weightev	D	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?" This includes discussions of whether the litigant met the burden of proof. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". CROWELL & THURLOW S. S. CO. et al. v. TEXAS CO. THE STEPHEN R. JONES. Circuit Court of Appeals, Fifth Circuit. July 6, 1928. No. 5176. 1. Collision <®=>9 — Local pilot custom on lower Mississippi river of long standing, having received judicial sanction, constitutes exception to pilot rules. Local pilot custom on lower Mississippi river relative to ascending vessel coming up under points, while descending vessel runs the bends, having received judicial sanction and being of long standing, must be considered an exception to pilot rules. 2. Collision <S=»9I — Power barge, failing to slacken speed or blow danger signal when not hearing proper passing signal from approaching steamer, held at fault in resulting collision. Power barge, descending Mississippi river, failing to slacken speed or stop and back, when pilot observed head lights and side lights of approaching steamer, and not blowing danger signal when she heard no passing signal at proper time, as required by pilot rules, held at fault in resulting collision. Appeal from the District Court of the United States for the Eastern District of Louisiana; Louis H. Burns, Judge. Libel by the Texas Company against the Crowell & Thurlow Steamship Company, claimant and owner of the steamship Stephen R. Jones, and others, wherein respondents filed a cross-libel. Decree for libelant, and respondents appeal. Reversed and remanded, with direction. Geo. H. Terriberry, Jos. M. Rault, and H. F. Stiles, Jr., all of New Orleans, La. (Terriberry, Young, Rault & Carroll, of New Orleans, La., on the brief), for appellants. John D. Grace, M. A. Grace, and Edwin H. Grace, all of New Orleans, La. (John D., M. A., and Edwin H. Grace, all of New Orleans, La., on the brief), for appellee. Before WALKER, BRYAN, and FOSTER, Circuit Judges. FOSTER, Circuit Judge. On November 24,1922, at about 8:45 p. m. the power barge Texaco 147, owned by appellee, collided with the steamship Stephen R. Jones, owned by appellant, in the Mississippi river, some 30 miles below New Orleans. Both vessels were damaged, and a libel and a eross-libel were filed. The testimony exhibits the conflict usual in collision cases, but it is unnecessary to review it in its entirety. The Jones was ascending the river, coming up under Poverty Point, which is on the east bank, and the Texaco was descending, running close to the west bank. Under the pilot rules the Texaco had the right of way, and it was the duty of the Jones to initiate the passing signals, which the Texaco could agree to, or change, after stopping and blowing the danger signal of four or more short blasts. The collision occurred close to the west bank, in a comparatively straight reach of the river, just around and above Turtle Point, which is a projection on the west bank. The District Court found that the Jones, after rounding Poverty Point, went obliquely across the bend, crossing the bow of the Texaco; that the Jones blew two blasts and starboarded her helm, when within a distance of a half a mile or less and the danger of collision was imminent; that she was going full speed ahead, within a ship’s width of the bank, and blew two more blasts and put her helm hard astarboard, going into the bank, when a ship’s length away from the Texaco; and that not until just before the collision did she put her engines full speed astern. On these facts the District Court reached the conclusion 'that the Jones was solely at fault and had violated rule 5 in crossing the river with a descending steamer so near that a collision was possible, and also had violated rules 1, 2, 9, 10, and 23. in failing to give the passing signal and have an answer that was understood before arriving at a distance of half a mile from the descending steamer, and in altering her course and proceeding before the privileged descending vessel answered; in failing to blow the danger signal and stopping and reversing; and in failing to observe the starboard hand rule of the road to keep to the right. We agree with the District Court in holding the Jones responsible for the collision, but we hare reached the further conclusion that the Texaco was guilty of faults that also contributed to it. The local pilot custom on the lower Mississippi river is for the ascending vessel to come up under the points, in order to get the benefit of slack water, while the descending vessel runs the bends, keeping in or near the middle of the river, in the thread of the stream, to get the benefit of the current. This custom is of long standing, has received judicial sanction, and must be considered an exception to the pilot rules. The Albert Dumois, 177 U. S. 240, 20 S. Ct. 595, 44 L. Ed. 751; The Esparta (C. C. A.) 160 F. 289. Following the custom, except for the close proximity of the Texaco the Jones could have properly crossed the river where she did, in order to come up under Turtle Point, which sufficiently projected to deflect the current to some extent. There was no necessity for the Texaco to be close in to the west bank. Had she been out in the center of the stream, where the Jones could have expected to find her, it is probable that the collision would not have occurred; but we put this aside as unimportant. The testimony of Cox, a licensed river pilot, who was in charge of the navigation of the Texaco at the time of the collision, is somewhat confused; but we conclude from it that the Texaco was close to the west bank going down the river when he saw the head and range lights of the Jones, and her red and green side lights at the same time. This should have told him she was dead ahead, or nearly so. He did not hear any passing signal from the Jones until the collision was imminent. He did not at any time slacken his speed, or stop and back, and did not blow the danger signal. The Jones was on the west bank, where she thought she had the right to be, and the Texaco had the whole width of the river to pass to the left, when the Jones blew a signal of two blasts, indicating that course. The Jones had no means of knowing that her signal had not been heard, unless the Texaco so indicated by blowing the danger signal. Had that been done, the Jones might have stopped and reversed her engines in time. The Texaco was at fault in not slackening her speed, or stopping and backing, when her pilot observed the head light and both side lights of the Jones, and in not blo.wing the danger signal, when she heard no passing signal from the Jones at the proper time, as required by rule 2. It is evident that both vessels were at fault in not observing the rules. Reversed and remanded, with instructions to divide the damages equally. Question: Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
sc_certreason	B	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. PPL CORPORATION and Subsidiaries, Petitioners v. COMMISSIONER OF INTERNAL REVENUE. No. 12-43. Supreme Court of the United States Argued Feb. 20, 2013. Decided May 20, 2013. Paul D. Clement, Washington, DC, for Petitioners. Ann O'Connell, for Respondent. Ashley C. Parrish, King & Spalding LLP, Washington, DC, Richard E. May, Mark B. Bierbower, Timothy L. Jacobs, Hunton & Williams LLP, Washington, DC, Paul D. Clement, Counsel of Record, Erin E. Murphy, Bancroft PLLC, Washington, DC, for Petitioners. Donald B. Verrilli, Jr., Solicitor General, Kathryn Keneally, Assistant Attorney General, Malcolm L. Stewart, Deputy Solicitor General, Ann O'Connell, Assistant to the Solicitor General, Counsel of Record, Thomas J. Clark, Francesca U. Tamami, Attorneys, Department of Justice, Washington, DC, for Respondent. Justice THOMAS delivered the opinion of the Court. In 1997, the United Kingdom (U.K.) imposed a one-time "windfall tax" on 32 U.K. companies privatized between 1984 and 1996. This case addresses whether that tax is creditable for U.S. tax purposes. Internal Revenue Code § 901(b)(1) states that any "income, war profits, and excess profits taxes" paid overseas are creditable against U.S. income taxes. 26 U.S.C. § 901(b)(1). Treasury Regulations interpret this section to mean that a foreign tax is creditable if its "predominant character" "is that of an income tax in the U.S. sense." Treas. Reg. § 1.901-2(a)(1)(ii), 26 C.F.R. § 1.901-2(a)(1) (1992). Consistent with precedent and the Tax Court's analysis below, we apply the predominant character test using a commonsense approach that considers the substantive effect of the tax. Under this approach, we hold that the U.K. tax is creditable under § 901 and reverse the judgment of the Court of Appeals for the Third Circuit. I A During the 1980's and 1990's, the U.K.'s Conservative Party controlled Parliament and privatized a number of government-owned companies. These companies were sold to private parties through an initial sale of shares, known as a "flotation." As part of privatization, many companies were required to continue providing services at the same rates they had offered under government control for a fixed period, typically their first four years of private operation. As a result, the companies could only increase profits during this period by operating more efficiently. Responding to market incentives, many of the companies became dramatically more efficient and earned substantial profits in the process. The U.K.'s Labour Party, which had unsuccessfully opposed privatization, used the companies' profitability as a campaign issue against the Conservative Party. In part because of campaign promises to tax what it characterized as undue profits, the Labour Party defeated the Conservative Party at the polls in 1997. Prior to coming to power, Labour Party leaders hired accounting firm Arthur Andersen to structure a tax that would capture excess, or "windfall," profits earned during the initial years in which the companies were prohibited from increasing rates. Parliament eventually adopted the tax, which applied only to the regulated companies that were prohibited from raising their rates. See Finance (No. 2) Act, 1997, ch. 58, pt. I, cls. 1 and 2(5) (Eng.) (U.K. Windfall Tax Act). It imposed a 23 percent tax on any "windfall" earned by such companies. Id., cl. 1(2). A separate schedule "se[t] out how to quantify the windfall from which a company was benefitting." Id., cl. 1(3). See id., sched. 1. In the proceedings below, the parties stipulated that the following formula summarizes the tax imposed by the Labour Party: P Tax = 23% [(365 × (-) × 9) - FV] D D equals the number of days a company was subject to rate regulation (also known as the "initial period"), P equals the total profits earned during the initial period, and FV equals the flotation value, or market capitalization value after sale. For 27 of the 32 companies subject to the tax, the number of days in the initial period was 1,461 days (or four years). Of the remaining five companies, one had no tax liability because it did not earn any windfall profits. Three had initial periods close to four years (1,463, 1,456, and 1,380 days). The last was privatized shortly before the Labour Party took power and had an initial period of only 316 days. The number 9 in the formula was characterized as a price-to-earnings ratio and was selected because it represented the lowest average price-to-earnings ratio of the 32 companies subject to the tax during the relevant period. See id., sched. 1, § 1, cl. 2(3); Brief for Respondent 7. The statute expressly set its value, and that value was the same for all companies. U.K. Windfall Tax Act, sched. 1, § 1, cl. 2(3). The only variables that changed in the windfall tax formula for all the companies were profits (P) and flotation value (FV); the initial period (D) varied for only a few of the companies subject to the tax. The Labour government asserted that the term [365 x (P/D) x 9] represented what the flotation value should have been given the assumed price-to-earnings ratio of 9. Thus, it claimed (and the Commissioner here reiterates) that the tax was simply a 23 percent tax on the difference between what the companies' flotation values should have been and what they actually were. B Petitioner PPL Corporation (PPL) was an owner, through a number of subsidiaries, of 25 percent of South Western Electricity plc, 1 of 12 government-owned electric companies that were privatized in 1990 and that were subject to the tax. See 135 T.C. 304, 307, App. (2010) (diagram of PPL corporate structure in 1997). South Western Electricity's total U.K. windfall tax burden was £90,419,265. In its 1997 federal income-tax return, PPL claimed a credit under § 901 for its share of the bill. The Commissioner of Internal Revenue (Commissioner) rejected the claim, but the Tax Court held that the U.K. windfall tax was creditable for U.S. tax purposes under § 901. See id., at 342. The Third Circuit reversed. 665 F.3d 60, 68 (2011). We granted certiorari, 568 U.S. ----, 133 S.Ct. 571, 184 L.Ed.2d 338 (2012), to resolve a Circuit split concerning the windfall tax's creditability under § 901. Compare 665 F.3d, at 68, with Entergy Corp. & Affiliated Subsidiaries v. Commissioner, 683 F.3d 233, 239 (C.A.5 2012). II Internal Revenue Code § 901(b)(1) provides that "[i]n the case of ... a domestic corporation, the amount of any income, war profits, and excess profits taxes paid or accrued during the taxable year to any foreign country or to any possession of the United States" shall be creditable. Under relevant Treasury Regulations, "[a] foreign levy is an income tax if and only if ... [t]he predominant character of that tax is that of an income tax in the U.S. sense." 26 C.F.R. § 1.901-2(a)(1). The parties agree that Treasury Regulation § 1.901-2 applies to this case. That regulation codifies longstanding doctrine dating back to Biddle v. Commissioner, 302 U.S. 573, 578-579, 58 S.Ct. 379, 82 L.Ed. 431 (1938), and provides the relevant legal standard. The regulation establishes several principles relevant to our inquiry. First, the "predominant character" of a tax, or the normal manner in which a tax applies, is controlling. See id., at 579, 58 S.Ct. 379 ("We are here concerned only with the 'standard' or normal tax"). Under this principle, a foreign tax that operates as an income, war profits, or excess profits tax in most instances is creditable, even if it may affect a handful of taxpayers differently. Creditability is an all or nothing proposition. As the Treasury Regulations confirm, "a tax either is or is not an income tax, in its entirety, for all persons subject to the tax." 26 C.F.R. § 1.901-2(a)(1). Second, the way a foreign government characterizes its tax is not dispositive with respect to the U.S. creditability analysis. See § 1.901-2(a)(1)(ii) (foreign tax creditable if predominantly "an income tax in the U.S. sense"). In Biddle, the Court considered the creditability of certain U.K. taxes on stock dividends under the substantively identical predecessor to § 901. The Court recognized that "there is nothing in [the statute's] language to suggest that in allowing the credit for foreign tax payments, a shifting standard was adopted by reference to foreign characterizations and classifications of tax legislation." 302 U.S., at 578-579, 58 S.Ct. 379. See also United States v. Goodyear Tire & Rubber Co., 493 U.S. 132, 145, 110 S.Ct. 462, 107 L.Ed.2d 449 (1989) (noting in interpreting 26 U.S.C. § 902 that Biddle is particularly applicable "where a contrary interpretation would leave" tax interpretation "to the varying tax policies of foreign tax authorities"); Heiner v. Mellon, 304 U.S. 271, 279, and n. 7, 58 S.Ct. 926, 82 L.Ed. 1337 (1938) (state-law definitions generally not controlling in federal tax context). Instead of the foreign government's characterization of the tax, the crucial inquiry is the tax's economic effect. See Biddle,supra, at 579, 58 S.Ct. 379 (inquiry is "whether [a tax] is the substantial equivalent of payment of the tax as those terms are used in our own statute"). In other words, foreign tax creditability depends on whether the tax, if enacted in the U.S., would be an income, war profits, or excess profits tax. Giving further form to these principles, Treasury Regulation § 1.901-2(a)(3)(i) explains that a foreign tax's predominant character is that of a U.S. income tax "[i]f ... the foreign tax is likely to reach net gain in the normal circumstances in which it applies." The regulation then sets forth three tests for assessing whether a foreign tax reaches net gain. A tax does so if, "judged on the basis of its predominant character, [it] satisfies each of the realization, gross receipts, and net income requirements set forth in paragraphs (b)(2), (b)(3) and (b)(4), respectively, of this section." § 1.901-2(b)(1). The tests indicate that net gain (also referred to as net income) consists of realized gross receipts reduced by significant costs and expenses attributable to such gross receipts. A foreign tax that reaches net income, or profits, is creditable. III A It is undisputed that net income is a component of the U.K.'s "windfall tax" formula. See Brief for Respondent 23 ("The windfall tax takes into account a company's profits during its four-year initial period"). Indeed, annual profit is a variable in the tax formula. U.K. Windfall Tax Act, sched. 1, § 1, cls. 2(2) and 5. It is also undisputed that there is no meaningful difference for our purposes in the accounting principles by which the U.K. and the U.S. calculate profits. See Brief for Petitioners 47. The disagreement instead centers on how to characterize the tax formula the Labour Party adopted. The Third Circuit, following the Commissioner's lead, believed it could look no further than the tax formula that the Parliament enacted and the way in which the Labour government characterized it. Under that view, the windfall tax must be considered a tax on the difference between a company's flotation value (the total amount investors paid for the company when the government sold it) and an imputed "profit-making value," defined as a company's "average annual profit during its 'initial period' ... times 9, the assumed price-to-earnings ratio." 665 F.3d, at 65. So characterized, the tax captures a portion of the difference between the price at which each company was sold and the price at which the Labour government believed each company should have been sold given the actual profits earned during the initial period. Relying on this characterization, the Third Circuit believed the windfall tax failed at least the Treasury Regulation's realization and gross receipts tests because it reached some artificial form of valuation instead of profits. See id., at 67, and n. 3. In contrast, PPL's position is that the substance of the windfall tax is that of an income tax in the U.S. sense. While recognizing that the tax ostensibly is based on the difference between two values, it argues that every "variable" in the windfall tax formula except for profits and flotation value is fixed (at least with regard to 27 of the 32 companies). PPL emphasizes that the only way the Labour government was able to calculate the imputed "profit-making value" at which it claimed companies should have been privatized was by looking after the fact at the actual profits earned by each company. In PPL's view, it matters not how the U.K. chose to arrange the formula or what it claimed to be taxing, because a tax based on profits above some threshold is an excess profits tax, regardless of how it is mathematically arranged or what labels foreign law places on it. PPL, thus, contends that the windfall taxes it paid meet the Treasury Regulation's tests and are creditable under § 901. We agree with PPL and conclude that the predominant character of the windfall tax is that of an excess profits tax, a category of income tax in the U.S. sense. It is important to note that the Labour government's conception of "profit-making value" as a backward-looking analysis of historic profits is not a recognized valuation method; instead, it is a fictitious value calculated using an imputed price-to-earnings ratio. At trial, one of PPL's expert witnesses explained that " '9 is not an accurate P/E multiple, and it is not applied to current or expected future earnings.' " 135 T. C., at 326, n. 17 (quoting testimony). Instead, the windfall tax is a tax on realized net income disguised as a tax on the difference between two values, one of which is completely fictitious. See App. 251, Report ¶ 1.7 ("[T]he value in profit making terms described in the wording of the act ... is not a real value: it is rather a construct based on realised profits that would not have been known at the date of privatisation"). The substance of the windfall tax confirms the accuracy of this observation. As already noted, the parties stipulated that the windfall tax could be calculated as follows: P Tax = 23% [(365 × (-) × 9) - FV] D This formula can be rearranged algebraically to the following formula, which is mathematically and substantively identical: (365 × 9 × 23%) D Tax = [---------------] × {P - [FV × ---------]} D (365 × 9) The next step is to substitute the actual number of days for D. For 27 of the 32 companies subject to the windfall tax, the number of days was identical, 1,461 (or four years). Inserting that amount for D in the formula yields the following: (365 × 9 × 23%) 1,461 Tax = [---------------] × {P - [FV × ---------]} 1,461 (365 × 9) Simplifying the formula by multiplying and dividing numbers reduces the formula to: FV Tax = 51.71% × [P - (--) × 4.0027] 9 As noted, FV represents the value at which each company was privatized. FV is then divided by 9, the arbitrary "price-to-earnings ratio" applied to every company. The economic effect is to convert flotation value into the profits a company should have earned given the assumed price-to-earnings ratio. See 135 T. C., at 327 (" 'In effect, the way the tax works is to say that the amount of profits you're allowed in any year before you're subject to tax is equal to one-ninth of the flotation price. After that, profits are deemed excess, and there is a tax' " (quoting testimony from the treasurer of South Western Electricity plc)). The annual profits are then multiplied by 4.0027, giving the total "acceptable" profits (as opposed to windfall profit) that each company's flotation value entitled it to earn during the initial period given the artificial price-to-earnings ratio of 9. This fictitious amount is finally subtracted from actual profits, yielding the excess profits, which were taxed at an effective rate of 51.71 percent. The rearranged tax formula demonstrates that the windfall tax is economically equivalent to the difference between the profits each company actually earned and the amount the Labour government believed it should have earned given its flotation value. For the 27 companies that had 1,461-day initial periods, the U.K. tax formula's substantive effect was to impose a 51.71 percent tax on all profits earned above a threshold. That is a classic excess profits tax. See, e.g., Act of Mar. 3, 1917, ch. 159, Tit. II, § 201, 39 Stat. 1000 (8 percent tax imposed on excess profits exceeding the sum of $5,000 plus 8 percent of invested capital). Of course, other algebraic reformulations of the windfall tax equation are possible. See 665 F.3d, at 66; Brief for Anne Alstott et al. as Amici Curiae 21-23 (Alstott Brief). The point of the reformulation is not that it yields a particular percentage (51.75 percent for most of the companies). Rather, the algebraic reformulations illustrate the economic substance of the tax and its interrelationship with net income. The Commissioner argues that any algebraic rearrangement is improper, asserting that U.S. courts must take the foreign tax rate as written and accept whatever tax base the foreign tax purports to adopt. Brief for Respondent 28. As a result, the Commissioner claims that the analysis begins and ends with the Labour government's choice to characterize its tax base as the difference between "profit-making value" and flotation value. Such a rigid construction is unwarranted. It cannot be squared with the black-letter principle that "tax law deals in economic realities, not legal abstractions." Commissioner v. Southwest Exploration Co., 350 U.S. 308, 315, 76 S.Ct. 395, 100 L.Ed. 347 (1956). Given the artificiality of the U.K.'s method of calculating purported "value," we follow substance over form and recognize that the windfall tax is nothing more than a tax on actual profits above a threshold. B We find the Commissioner's other arguments unpersuasive as well. First, the Commissioner attempts to buttress the argument that the windfall tax is a tax on value by noting that some U.S. gift and estate taxes use actual, past profits to estimate value. Brief for Respondent 17-18 (citing 26 C.F.R. § 20.2031-3 (2012) and 26 U.S.C. § 2032A ). This argument misses the point. In the case of valuation for gift and estate taxes, past income may be used to estimate future income streams. But, it is future revenue-earning potential, reduced to market value, that is subject to taxation. The windfall profits tax, by contrast, undisputedly taxed past, realized net income alone. The Commissioner contends that the U.K. was not trying to establish valuation as of the 1997 date on which the windfall tax was enacted but instead was attempting to derive a proper flotation valuation as of each company's flotation date. Brief for Respondent 21. The Commissioner asserts that there was no need to estimate future income (as in the case of the gift or estate recipient) because actual revenue numbers for the privatized companies were available. Ibid. That argument also misses the mark. It is true, of course, that the companies might have been privatized at higher flotation values had the government recognized how efficient-and thus how profitable-the companies would become. But, the windfall tax requires an underlying concept of value (based on actual ex post earnings) that would be alien to any valuer. Taxing actual, realized net income in hindsight is not the same as considering past income for purposes of estimating future earning potential. The Commissioner's reliance on Example 3 to the Treasury Regulation's gross receipts test is also misplaced. Id., at 37-38; 26 C.F.R. § 1.901-2(b)(3)(ii), Ex. 3. That example posits a petroleum tax in which "gross receipts from extraction income are deemed to equal 105 percent of the fair market value of petroleum extracted. This computation is designed to produce an amount that is greater than the fair market value of actual gross receipts."Ibid. Under the example, a tax based on inflated gross receipts is not creditable. The Third Circuit believed that the same type of algebraic rearrangement used above could also be used to rearrange a tax imposed on Example 3. It hypothesized: "Say that the tax rate on the hypothetical extraction tax is 20%. It is true that a 20% tax on 105% of receipts is mathematically equivalent to a 21% tax on 100% of receipts, the latter of which would satisfy the gross receipts requirement. PPL proposes that we make the same move here, increasing the tax rate from 23% to 51.75% so that there is no multiple of receipts in the tax base. But if the regulation allowed us to do that, the example would be a nullity. Any tax on a multiple of receipts or profits could satisfy the gross receipts requirement, because we could reduce the starting point of its tax base to 100% of gross receipts by imagining a higher tax rate." 665 F.3d, at 67. The Commissioner reiterates the Third Circuit's argument. Brief for Respondent 37-38. There are three basic problems with this approach. As the Fifth Circuit correctly recognized, there is a difference between imputed and actual receipts. "Example 3 hypothesizes a tax on the extraction of petroleum where the income value of the petroleum is deemed to be ... deliberately greater than actual gross receipts." Entergy Corp., 683 F.3d, at 238. In contrast, the windfall tax depends on actual figures. Ibid. ("There was no need to calculate imputed gross receipts; gross receipts were actually known"). Example 3 simply addresses a different foreign taxation issue. The argument also incorrectly equates imputed gross receipts under Example 3 with net income . See 665 F.3d, at 67 ("[a]ny tax on a multiple of receipts or profits"). As noted, a tax is creditable only if it applies to realized gross receipts reduced by significant costs and expenses attributable to such gross receipts . 26 C.F.R. § 1.901-2(b)(4)(i). A tax based solely on gross receipts (like the Third Circuit's analysis) would be noncreditable because it would fail the Treasury Regulation's net income requirement. Finally, even if expenses were subtracted from imputed gross receipts before a tax was imposed, the effect of inflating only gross receipts would be to inflate revenue while holding expenses (the other component of net income) constant. A tax imposed on inflated income minus actual expenses is not the same as a tax on net income. For these reasons, a tax based on imputed gross receipts is not creditable. But, as the Fifth Circuit explained in rejecting the Third Circuit's analysis, Example 3 is "facially irrelevant" to the analysis of the U.K. windfall tax, which is based on true net income. Entergy Corp., supra, at 238. The economic substance of the U.K. windfall tax is that of a U.S. income tax. The tax is based on net income, and the fact that the Labour government chose to characterize it as a tax on the difference between two values is not dispositive under Treasury Regulation § 1.901-2. Therefore, the tax is creditable under § 901. The judgment of the Third Circuit is reversed. It is so ordered. A price-to-earnings ratio "is defined as the stock price divided by annual earnings per share. It is typically calculated by dividing the current stock price by the sum of the previous four quarters of earnings." 3 New Palgrave Dictionary of Money & Finance 176 (1992). Prior to enactment of what is now § 901, income earned overseas was subject to taxes not only in the foreign country but also in the United States. See Burnet v. Chicago Portrait Co., 285 U.S. 1, 7, 52 S.Ct. 275, 76 L.Ed. 587 (1932). The relevant text making "income, war-profits and excess-profits taxes" creditable has not changed since 1918. See Revenue Act of 1918, §§ 222(a)(1), 238(a), 40 Stat. 1073, 1080. The relevant provisions provide as follows: "A foreign tax satisfies the realization requirement if, judged on the basis of its predominant character, it is imposed-(A) Upon or subsequent to the occurrence of events ('realization events') that would result in the realization of income under the income tax provisions of the Internal Revenue Code." 26 C.F.R. § 1.901-2(b)(2)(i). "A foreign tax satisfies the gross receipts requirement if, judged on the basis of its predominant character, it is imposed on the basis of-(A) Gross receipts; or (B) Gross receipts computed under a method that is likely to produce an amount that is not greater than fair market value." § 1.901-2(b)(3)(i). "A foreign tax satisfies the net income requirement if, judged on the basis of its predominant character, the base of the tax is computed by reducing gross receipts ... to permit-(A) Recovery of the significant costs and expenses (including significant capital expenditures) attributable, under reasonable principles, to such gross receipts; or (B) Recovery of such significant costs and expenses computed under a method that is likely to produce an amount that approximates, or is greater than, recovery of such significant costs and expenses."§ 1.901-2(b)(4)(i). The rearrangement requires only basic algebraic manipulation. First, because order of operations does not matter for multiplication and division, the formula is rearranged to the following: P Tax = 23% [(365 × 9 × (-)) - FV] D (365 × 9) Next, everything outside the brackets is multiplied by [---------], and D D everything inside the brackets is multiplied by the inverse, [---------]. (365 × 9) The effect is the same as multiplication by the number one (since (365 × 9) D {[---------] × [---------]} = 1). That multiplication yields the formula in the D (365 × 9) text. Mathematically, the Third Circuit's hypothetical was incomplete. It should have been: 20% [ 105% (Gross Receipts) − Expenses ] = Tax But 105% of gross receipts minus expenses is not net income. Thus, the 20% tax is not a tax on net income and is not creditable. An amici brief argues that because two companies had initial periods substantially shorter than four years, the predominant character of the U.K. windfall tax was not a tax on income in the U.S. sense. See Alstott Brief 29 (discussing Railtrack Group plc and British Energy plc). The argument amounts to a claim that two outliers changed the predominant character of the U.K. tax. See 135 T.C. 304, 340, n. 33 (2010) (rejecting this view). The Commissioner admitted at oral argument that it did not preserve this argument, a fact reflected in its briefing before this Court and in the Third Circuit. See Tr. of Oral Arg. 35-36; Opening Brief for Appellant and Reply Brief for Appellant in No. 11-1069(CA3). We therefore express no view on its merits. * * * 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	A	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. THURBER v. COMMISSIONER OF INTERNAL REVENUE. No. 3093. Circuit Court of Appeals, First Circuit. July 14, 1936. J. Robert Sherrod, of Washington, D. C. (O. H. Chmillon and Miller & Chevalier, all of Washington, D. C., on the brief), for petitioner for review. Morton K. Rothschild, Sp. Asst, to Atty. Gen. (Robert H. Jackson, Asst. Atty. Gen., and Sewall Key, Sp. Asst, to Atty. Gen., on the brief), for the Commissioner. Before BINGHAM, WILSON, and MORTON, Circuit Judges. MORTON, Circuit Judge. This case involves personal income taxes assessed for the year 1930 under the Revenue Act of 1928 (45 Stat. 791). The first point in controversy is whether the combination of the old Guaranty Savings Bank of Nashua, N. H., with the Second National Bank of that city, was “a merger or consolidation” within the meaning of section 112 of the act referred to (26 U.S.C.A. § 112 and note), ¿o that no taxable gain or loss arose from the exchange of shares. The Commissioner held that the combination was not a merger or consolidation, but was a sale of the assets of the Savings Bank to the National Bank. He accordingly imposed a tax on the gain accruing to the stockholders in the Savings Bank from the exchange of shares. His action was affirmed by the Board of Tax Appeals, four members dissenting; and the taxpayer has appealed. The banks in question were independent institutions which had been in business many years. In the fall of 1929 committees appointed by each agreed in recommending to the stockholders a merger of the two institutions. The National Bank had at that time capital stock of $150,000. The plan of merger as outlined by the committees was that the National Bank should continue in business, should double its capital stock by the issue of 1,500 new shares for distribution to the stockholders of the Savings Bank, and should take over the business, good will, assets, deposits, and liabilities of the Savings Bank; that the Savings Bank should reduce its assets before merging by distributing to its shareholders by way of a special dividend certain shares of stock which it owned in the Pullman Company and the Nashua Manufacturing Company and also $1.33 per share in cash representing the accrued dividend at the usual rate on its shares to the' date when the combination became effective; that all the stock of the Savings Bank should be turned over to the National Bank and be paid for by it at the rate of three shares of its own stock for four shares of the Savings Bank’s stock; that the National Bank on taking over the assets of the Savings Bank should assume all the latter’s liabilities; and that the Savings Bank should thereupon be dissolved. Before this plan was voted upon by the stockholders it was discovered that the law required new stock of a National Bank to be paid for in cash. The plan was therefore .modified so that the National Bank on receiving transfers of all the stock of the Savings Bank should give to the trustees, who acted for the stockholders in the Savings Bank and by whom the shares were actually surrendered, its cashier’s check for the agreed price of the shares, viz., $467,947.74, and that the recipients of the check should immediately endorse it back to the National Bank in return for . 1500 shares of the capital stock of the National Bank which they would distribute to the former stockholders of the Savings Bank, in the ratio stated. The plan as modified was duly approved by the stockholders in both institutions, and was carried out. All the assets of the Savings Bank, including real estate, cash, securities, etc., were transferred to the National Bank; and the National Bank duly assumed all the liabilities of the Savings Bank to its depositors and all other persons, and took over its business. • In the formal notices to and votes of the stockholders the transaction is referred to as a “sale” of the assets of the Savings Bank to the National Bank. But in a letter accompanying the formal notices it was said that the meeting was called “for the purpose of authorizing and approving the consolidation of this bank with the Second National Bank”; and the expression “consolidated bank” is used, referring to the continuing institution. (Italics supplied.) In another letter to the stockholders in which the transaction was also referred to as a sale, it was said to be, “in connection with the proposed consolidation of this bank with the Second National Bank.” (Italics supplied.) In letters accompanying the formal notices to the stockholders of the National Bank the same idea is repeatedly expressed, viz., that the transaction was a "consolidation” of the two banks. The Comptroller of the Currency appears to have been fully informed about the whole transaction and it was arranged and carried out with his knowledge and approval. There is no controversy about the facts. They are covered by stipulation and by undisputed testimony. That there was a definite plan by all párties in interest to merge or consolidate the two banks, and that the plan was in substance carried out, seems to us too clear for further discussion. T.he government contends that the decision by the Board of Tax Appeals that the combination of the two banks was not a merger or consolidation, but a sale, was a finding of fact and therefore is not reviewable. But as all the material facts are agreed to or are undisputed, the legal effect of them, whether sale or merger, is a question of law, or a mixed question of law and fact, on which the decision by the Board is subject to review. Helvering v. Rankin, 295 U.S. 123, at page 131, 55 S.Ct. 732, 79 L.Ed. 1343. See, too, Starr v. Commissioner (C.C.A.4) 82 F.(2d) 964, April 6, 1936; General Utilities Co. v. Helvering, 296 U.S. 200, at page 207, 56 S.Ct. 185, 80 L.Ed. 154. The government also contends that there was no merger or consolidation because all the assets of the Savings Bank were not transferred to the National Bank, as required by the statutes; and the Board of Tax Appeals so found and ruled. The Board of Tax Appeals said: “If a given transaction in strictness can be designated as either a merger or a consolidation, it is a reorganization within the meaning of the definition, and the words in parenthesis are unimportant. If, however, a particular transaction, which in strictness cannot be designated as either a merger or consolidation, nevertheless partakes of the nature of a merger or consolidation, it must be tested by the words in the parenthesis to see whether or not it is a reorganization within the meaning of the statute.” “The National Bank did not acquire ‘substantially all the properties’ of the State Bank.” “Since the National Bank did not acquire substantially all of the. properties of the State Bank, the transaction was not a ‘reorganization’ within the meaning of the parenthetical part of the definition. The case of Howard v. Commissioner (C.C.A.) 56 F.(2d) 781, affirming 20 B.T.A. 207, is not in point, since in that case substantially all the properties were acquired.” “However, the fact that the National Bank did not acquire substantially all of the properties of the State Bank would be immaterial if the transaction was one which in strictness could be designated as either a merger or a consolidation.” The assets, the omission of which was held by the Board of Tax Appeals to have prevented a merger, are the shares in the Pullman Company and the Nashua Manufacturing Company and the $1.33 accrued dividend. The special dividend by which these were distributed was voted on May 20, 1930. The combination of the banks became effective on June 2, 1930. This objection to the merger view seems to us entirely unfounded. We do not doubt that the assets of a corporation which is to be merged may, by agreement of the persons concerned, be reduced by distribution to its stockholders before the merger takes place, so that the stock at the time when the merger is consummated will have the value which the merger contemplates. There is an explicit finding that this was the purpose of the special dividend just referred to. The statute means that all free assets of the corporation at the time of the actual merger shall be transferred to the new corporation; and this was done in the present case. The Board erred in its understanding of the statute. The case comes within it. The Board of Tax Appeals in reaching its conclusion that “in strictness” (as it says) there was no merger disregarded the obvious understanding of the parties that a merger or consolidation was being effected and did -not consider the transaction as a whole. In effect the Board picked out a single step in á transaction involving a series of steps and, without looking at anything else, held that the entire transaction was a sale. This method of dealing with the question was inconsistent with previous decisions by the Board and by the courts and seems to us to be clearly wrong. Prairie Oil & Gas Co. v. Motter, 66 F.(2d) 309, 311 (C.C.A.10); Howard v. Commissioner (C.C.A.) 56 F.(2d) 781; George Woodward v. Commissioner, 23 B.T.A. 1259. The transaction should have been viewed as a whole, as the Commissioner himself had insisted and the Board .of Tax Appeals had held in the Howard Case. Helvering v. Minnesota Tea Co., 296 U.S. 378, 56 S.Ct. 269, 80 L.Ed. 284. In Irving v. United States, 44 F.(2d) 246 (Ct.Cl.) the court looked through an issue and exchange of checks very similar to what took place here and held that the transaction constituted “a stock dividend” for purposes of tax liability. The characteristics of mergers or consolidations are clearly stated in Cortland Specialty Co. v. Commissioner (C.C.A.) 60 F.(2d) 937 (referred to and approved in Pinellas Ice Co. v. Commissioner, 287 U.S. 462, at page 470, 53 S.Ct. 257, 77 L.Ed. 428) and need not be repeated. The test is whether there was “some continuity of interest on the part of the transferor corporation or its stockholders.” A. N. Hand, J., 60 F.(2d) 937, 940. Whether “the seller acquired a definite and substantial interest in the purchaser.” McReynolds, J., Helvering v. Minnesota Tea Co., 296 U.S. 378, at page 386, 56 S.Ct. 269, 272, 80 L.Ed. 284. See, too, Sage v. Commissioner (C.C.A.2) 83 F.(2d) 221, April 6, 1936. The present case is precisely within these statements. The upshot of what was done was that the National Bank took over the business assets and liabilities of the Savings Bank together with all its capital stock and paid for them with 1,500 shares of its own new stock which was' distributed to the former stockholders in the Savings Bank, and gave them a 50 per cent, interest in the National Bank. The stockholders in the dissolved corporation became owners of one-half the stock in the consolidated company continuing the business. If this was not a merger or consolidation “in strictness,” it is not easy to imagine what would be one. For purposes of taxation mergers meeting the requirements of the revenue acts will be recognized as such whether they are made under the provisions of the banking law, or not. Pinellas Ice Co. v. Commissioner, 287 U.S. 462, 53 S.Ct. 257, 77 L.Ed. 428. As to the taxability of the special dividend of Pullman Company and Nashua Manufacturing Company and $1.33 in cash : This dividend was declared in connection with the merger as a liquidation pro tanto of the assets of the Savings Bank and it should be taxed on that basis. The decision of the Board of Tax Appeals is vacated, and the case is remanded to the Board for further proceedings not inconsistent with this opinion. Revenue Act of 1928, c. 852, 45 Stat. 791: “§ 112. Recognition of gain or loss “(a) General rule. Upon the sale or exchange of property the entire amount of the gain or loss determined under section 111, shall be recognized, except as hereinafter provided in this section. “(b) Exchanges solely in kind— * * “(3) Stock for Stock on Reorganization. “No gain or loss shall be recognized if stock or securities in a corporation a party to a reorganization are, in pursuance of the plan of reorganization, exchanged solely for stock or securities in such corporation or in another corporation a party to the reorganization. * * a= “(c) Gain from exchanges not solely in kind— “(1) If an exchange would be within the provisions of subsection (b) (1), (2), (3), or (5) of this section if it were not for the fact that the property received in exchange consists not only of property permitted by such paragraph to be received without the recognition of gain, but also of other property or money, then the gain, if any, to the recipient shall be recognized, but in an amount not in excess of the sum of such money and the fair market value of such other property. “(2) If a distribution made in pursuance of a plan of reorganization is within the provisions of paragraph (1) of this subsection but has the effect of the distribution of a taxable dividend, then there shall be taxed as a dividend to each distributee such an amount of the gain recognized under paragraph (1) as is not in excess of his ratable share of the undistributed earnings and profits of the corporation accumulated after February 28, 1913. The remainder, if any, of the gain recognized under paragraph (1) shall be taxed as a gain from the exchange of property. * * * “(i) Definition of Reorganization. As used in this section and sections 113 and 115— “(1) The term ‘reorganization’ means (A) a merger or consolidation (including the acquisition by one corporation of at least a majority of the voting stock and at least a majority of the total number of shares of all other classes of stock of another corporation, or substantially all the properties of another corporation).” 26 U.S.C.A. § 112 and note. “§ 115. Distributions by Corporations— * * “(e) Distributions in liquidation. “Amounts distributed in complete liquidation of a corporation shall be treated as in full payment in exchange for the stock, and amounts distributed in partial liquidation of a corporation shall be treated as in part or full payment in exchange for the stock. The gain or loss to the distributee resulting from such exchange shall be determined under section 111, but shall be recognized only to the extent provided in section 112.” 26 U.S.C.A. § 115 note. Question: What is the circuit of the court that decided the case? A. First Circuit B. Second Circuit C. Third Circuit D. Fourth Circuit E. Fifth Circuit F. Sixth Circuit G. Seventh Circuit H. Eighth Circuit I. Ninth Circuit J. Tenth Circuit K. Eleventh Circuit L. District of Columbia Circuit Answer:
songer_appel1_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). Lloyd Beverly HART, Appellant, v. UNITED STATES of America. No. 14447. United States Court of Appeals Eighth Circuit. Sept. 17, 1951. ■ Lloyd Beverly Hart, pro se. PER CURIAM. Appeal from District Court dismissed because frivolous and wholly without merit. 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_adminaction_is	B	What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether administrative action occurred in the context of the case prior to the onset of litigation. The activity may involve an administrative official as well as that of an agency. To determine whether administration action occurred in the context of the case, consider the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. UNITED STATES v. WUNDERLICH et al. No. 11. Argued November 6, 1951. Decided November 26, 1951. Paul A. Sweeney argued the cause for the United States. With him on the . brief were Solicitor General Perlman, Assistant Attorney General Baldridge and Morton Lijtih. Harry D. Ruddiman argued the cause for respondents. With him on the brief was John W. Gaskins. Mr. Justice Minton delivered the opinion of the Court. This Court is again called upon to determine the meaning of the “finality clause” of a standard form government contract. Respondents agreed tó build a dam for the United States under a contract containing the usual “Article 15.” That Article provides that all disputes involving questions of fact shall be decided by the contracting officer, with the right of appeal to the head of the department “whose decision shall be final and conclusive upon the parties thereto.” Dissatisfied with the resolution of various disputes by the department head, in this instance the Secretary of the Interior, respondents brought suit in the Court of Claims. That court reviewed their contentions, and in the one claim involved in this proceeding set aside the decision' of the department head. 117 Ct. Cl. 92. Although there was some dispute below, the parties now agree that the question decided by the department head was a question of fact. We granted certiorari, 341 U. S. 924, to clarify the rule of this Court which created an exception to the conclusiveness of such administrative decision. The same Article 15 of a government contract was before this Court recently, and we held, after a review of the authorities, that such Article was valid. United States v. Moorman, 338 U. S. 457. Nor was the Moor-man case one of first impression. Contracts, both governmental and private, have been before this Court in several cases in which provisions equivalent to Article 15 have been approved and enforced “in the absence of fraud or such gross mistake as would necessarily imply bad faith, or a failure to exercise an honest judgment . . . .” Kihlberg v. United States, 97 U. S. 398, 402; Sweeney v. United States, 109 U. S. 618, 620; Martinsburg & P. R. Co. v. March; 114 U. S. 549, 553; Chicago, S. F. & C. R. Co. v. Price, 138 U. S. 185, 195. In Ripley v. United States, 223 U. S. 695, 704, gross mistake implying bad faith is equated to “fraud.” Despite the fact that other words such as “negligence,” “incompetence,” “capriciousness,” and “arbitrary” have been used in the course of the opinions, this Court has consistently upheld the finality of the department head’s decision unless it was founded on fraud, alleged and proved. So. fraud is in essence the exception. By fraud we mean conscious wrongdoing, an intention to cheat or be dishonest. The 'decision of the department head, absent fraudulent conduct, must stand under the plain meaning of the contract. If the decision of the department head finder Article 15 is to be set aside for fraud, fraud should be alleged and proved, as it is never presumed. United States v. Colorado Anthracite Co., 225 U. S. 219, 226. In the case at bar,’ there was no allegation of fraud. There was no finding of fraud nor request for such a finding. The finding of the Court of Claims was that the decision of the department head was “arbitrary,” “capricious,” and “grossly erroneous.” But these words are not the equivalent of fraud, the exception which this Court has heretofore laid down and to which it now adheres without qualification. Respondents were, not compelled or coerced into making the contract. It was a voluntary undertaking on their part. As competent parties they have contracted for the settlement of disputes in an arbitral manner. This, we have said in Moorman, Congress has left them free to do. United States v. Moorman, supra, at 462. The limitation upon this arbitral process is fraud, placed there by this Court. If the standard of fraud that we adhere to is too limited, that is a matter for Congress. . Since there was no pleading of fraud, and no finding of fraud, and no request for such a finding, we are not’ disposed to remand the case for any further findings, as respondents urge. We assume that if the evidence had been sufficient to constitute fraud, the Court of Claims would have so found. In the absence of such finding, the decision of the department head must stand as conclusive, and the judgment is Reversed. “ Article 15. Disputes. — Except as otherwise: specifically provided in this contract, all disputes concerning questions of fact arising under this contract shall be decided by the contracting officer subject to written appeal by the contractor within 30 days to the head of the department concerned or his duly authorized representative, whose decision shall be final and conclusive upon the parties thereto. In the meantime the contractor shall diligently proceed with the work as directed.” Question: Did administrative action occur in the context of the case? A. No B. Yes Answer:
songer_initiate	A	What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff. Frank TAVANO, Petitioner-Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee. No. 91-4078. United States Court of Appeals, Eleventh Circuit. March 29, 1993. Gary R. Allen, Tax Div., Dept. of Justice, Scott P. Towers, Brian C. Griffin, Charles E. Brookhart, Washington, DC, for respondent-appellee. Before KRAVITCH and ANDERSON, Circuit Judges, and HILL, Senior Circuit Judge. PER CURIAM: In Brafman v. United States, 384 F.2d 863 (5th Cir.1967), our predecessor circuit wrote in dictum that a notice of tax deficiency sent to a taxpayer by the Internal Revenue Service need not be signed in order to be valid. Id. at 865 n. 4 (citing Commissioner v. Oswego Falls Corp., 71 F.2d 673, 677 (2d Cir.1934), and 9 Jacob Mertens, Jr., Federal Income Taxation § 49.186 (1965)). We now expressly so hold. Accordingly, we affirm the judgment of the tax court holding appellant Tavano liable for tax deficiencies and additions. I. On April 5, 1988, Tavano received from the Commissioner of Internal Revenue a statutory notice of deficiency notifying him of taxes and additions to taxes owed for tax years 1985 and 1986. The notice did not contain the signature, stamp, or seal of the Commissioner or of a representative of the Commissioner. Tavano properly filed a petition in the tax court seeking redetermination of his tax liability. The tax court upheld the Commissioner’s determinations. II. The Internal Revenue Code authorizes the Commissioner to notify a taxpayer by certified or registered mail of a deficiency in income tax owed. 26 U.S.C. § 6212(a) (1988). The mailing of a valid notice of deficiency is generally a prerequisite to formal assessment and collection of the deficiency by the IRS. Id. § 6213(a); see, e.g., H & H Beverage Distributors v. Dep’t of Revenue, 850 F.2d 165, 168 (3d Cir.), cert. denied, 488 U.S. 994, 109 S.Ct. 560, 102 L.Ed.2d 586 (1988); United States v. Zolla, 724 F.2d 808, 810 (9th Cir.), cert. denied, 469 U.S. 830, 105 S.Ct. 116, 83 L.Ed.2d 59 (1984); Meyer v. Commissioner, 97 T.C. 555, 560 (1991). Tavano challenges the validity of the notice he received on the ground that it was unsigned. The Code does not expressly require a notice of deficiency to be signed. Urban v. Commissioner, 964 F.2d 888, 889 (9th Cir.1992); Oswego Falls Corp., 71 F.2d at 677, cited in Brafman, 384 F.2d at 865 n. 4. Indeed, it prescribes no form at all for deficiency notices. Benzvi v. Commissioner, 787 F.2d 1541, 1542 (11th Cir.), cert. denied, 479 U.S. 883, 107 S.Ct. 273, 93 L.Ed.2d 250 (1986). The Internal Revenue Manual does specify the manner in which delegates of the Commissioner who are authorized to issue notices of deficiency should sign notices. I.R.M. § 4(13)14.3(2); Urban, 964 F.2d at 889 n. 2. It does not, however, purport to condition the validity of a deficiency notice on a proper signature. See Urban, 964 F.2d at 890; see also United States v. Horne, 714 F.2d 206, 207 (1st Cir.1983) (holding that the manual’s provisions are not mandatory); United States v. Will, 671 F.2d 963, 967 (6th Cir. 1982) (same); Smith v. United States, 478 F.2d 398, 400 (5th Cir.1973) (same as to the manual’s predecessor). Judge Learned Hand explained that “the notice [of deficiency] is only to advise the person who is to pay the deficiency that the commissioner means to assess him; anything that does this unequivocally is good enough.” Olsen v. Helvering, 88 F.2d 650, 651 (2d Cir.1937), quoted in Benzvi, 787 F.2d at 1542. The notice Tavano received adequately advised him that the Commissioner intended to assess him, notwithstanding that the notice was unsigned. Thus, the tax court properly proceeded to evaluate the correctness of the Commissioner’s determinations. The judgment of the tax court is AFFIRMED. . In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), the Eleventh Circuit adopted as circuit precedent all decisions of the former Fifth Circuit rendered prior to October 1, 1981. . In addition to the fact that his notice of deficiency was unsigned, Tavano argues six other grounds for reversal, all of which are meritless. Tavano claims that the tax court erred by: (1) denying his motion for a protective order; (2) not finding the deficiency notice arbitrary, excessive, or without factual foundation; (3) denying his motions to strike the testimony of certain witnesses and for rehearing; (4) admitting evidence obtained in violation of the Fourth Amendment to the United States Constitution and article I, section 12 of the Florida Constitution; (5) disallowing certain deductions and interfering with his rights under article I, section 23 of the Florida Constitution; and (6) upholding the Commissioner’s additions to tax for negligent disregard of the tax laws and substantial understatement of income tax. Question: What party initiated the appeal? A. Original plaintiff B. Original defendant C. Federal agency representing plaintiff D. Federal agency representing defendant E. Intervenor F. Not applicable G. Not ascertained Answer:
songer_casetyp1_7-2	B	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation". HARP v. UNITED STATES. No. 3794. United States Court of Appeals Tenth Circuit. March 28, 1949. Rehearing Denied April 26,1949. John L. Goode, of Shawnee, Okl. (Mark Goode, of Shawnee, Old., on the brief), for appellant. Bessie Margolin, Asst. Sol., of Washington, D. C. (Robert E. Shelton, U. S. Atty., and Haskell B. Pugh, Asst. U. S. Atty., both of Oklahoma City, Okl., William S. Tyson, Sol., of Washington, D. C., Earl Street, Regional Atty., of Dallas, Tex., and William A. Lowe and Joseph M. Stone, Attys., U. S. Department of Labor, both of Washington, D. C., on the brief), for Appellee. Before PHILLIPS, Chief Judge, BRAT-TON, Circuit Judge, and SAVAGE, District Judge. BRATTON, Circuit Judge. Section 1 of the Act of June 30, 1936, 49 Stat. 2036, 41 U.S.C.A. § 35 et seq., commonly called the Walsh-Healey Act, provides in presently material part that in any contract made and entered into by any executive department, independent establishment, or other agency or instrumentality of the United States, for the manufacture or furnishing of materials and supplies in any amount exceeding $10,000 there shall be included a provision that no female person under eighteen years of age will be employed by the contractor in the manufacture or production or furnishing of any of such materials and supplies. Section 2 provides that any breach or violation of any of the stipulations in any contract for the purposes set forth in section 1 shall render the party responsible therefor liable to the United States for liquidated damages, in addition to damages for any other breach, the sum of $10.00 per day for each female person under eighteen years of age knowingly employed in the performance of the contract. It further provides that any sums due the' United States by reason of a violation of any of the stipulations set forth in section 1 may be withheld from amounts due on any such contracts or may be recovered in suits brought in the name of the United States by the Attorney General. Section 4 authorizes the Secretary of Labor to administer the Act and to make rules and regulations necessary to carry out its provisions. Section 5 provides that upon his own motion, or on complaint of a breach or violation of any stipulation as therein provided, the Secretary or any impartial representative designated by him shall have power to hold hearings; that he shall make findings of fact after notice and hearings; that such findings shall be conclusive upon all agencies of the United States; that if supported by the preponderance of the evidence, such findings shall be conclusive in any court of the United States; and that the Secretary or any authorized representative shall have power and authority to make such decisions, based upon findings of fact, as are deemed necessary to enforce the provisions of the Act. And section 6 empowers the Secretary to make exceptions in specific cases respecting the inclusion in a proposal or contract of the representations and stipulations set forth in section 1 of the Act. The rules of practice promulgated by the Secretary under the authority vested in him by section 4 of the Act provide that the Secretary or his duly authorized representative may institute administrative proceedings to determine whether the Act has been violated; that in the event a complaint is issued by the Government a full administrative hearing may be had before a trial examiner; and that the trial examiner shall make an order and decision embodying his findings of fact and conclusions of law on all issues in the case. Provision is made to petition for review of the examiner’s decision by the Administrator of the Wage and Hour and public Contracts Divisions of the Department of Labor. And the right is also given to petition for review of the Administrator’s decision by the Secretary, but in the absence of a petition for such review the decision of the Administrator becomes final. 11 F.R. 14,493. Section 6 of the Act of May 14, 1947, 61 Stat. 84, 87, 29 U.S.C.A. § 2SS, hereinafter referred to as the Portal Act, provides: “Any action commenced on or after the date of the enactment of this Act to enforce any cause of action for unpaid minimum wages, unpaid overtime compensation, or liquidated damages, under the Fair Labor Standards Act of 1938, as amended, the Walsh-Healey Act, or the Bacon-Davis Act— “(a) if the cause of action accrues on or after the date of the enactment of this Act — may be commenced within two years after the cause of action accrued, and every such action shall be forever barred unless commenced within two years after the cause of action accrued; “(b) if the cause of action accrued prior to the date of the enactment of this Act— may be commenced' within whichever of the following periods is the shorter: (1) two years after the cause of action accrued, or (2) the period prescribed by the applicable State statute of limitations; and, except as provided in paragraph (c), every such action shall be forever barred unless commenced within the shorter of such two periods; “(c) if the cause of action accrued prior to the date of the enactment of this Act, the action shall not be barred by paragraph (b) if it is commenced within on hundred and twenty days after the date of the enactment of this Act unless at the time commenced it is barred by an applicable State statute of limitations.” Between October 15, 1943, and January 12, 1945, O. G. Harp, engaged in business at Shawnee, Oklahoma, under the trade name of O. G. Harp Poultry and Egg Company, entered into a series of eighteen contracts with the War Department for the sale and delivery of canned poultry. Each contract was for an amount in excess of $10,000, and each contained a provision incorporating therein by reference the terms and provisions of the Walsh-Healey Act. After completion of the contracts, the Secretary of Labor issued a complaint charging that Harp breached the contracts and violated the Act by knowingly employing girls under sixteen years of age, and also by hiring girls under eighteen years of age for periods of more than eight hours a day in violation of the terms of the Act and the terms of an exemption order issued by the Secretary. After notice, a hearing was held by a duly appointed trial examiner. The examiner made detailed findings and conclusions of law and recommended that $13,030 be collected from Harp as liquidated damages for the violations of the Act and the terms of the exemption issued pursuant thereto. Exceptions were interposed, and the matter came before the Administrator of the Wage and Hour and Public Contracts Divisions. After reviewing the record, the Administrator entered a decision upholding the findings of the trial examiner but determining that Harp was liable to the United States only in the amount of $6,970, which sum he was ordered to pay. Harp did not seek review of the Administrator’s decision by the Secretary, and it therefore became final. On failure of Harp to make payment of the amount found "to be due, the United States filed this action under section 2 of the Act. The complaint alleged the making of the contracts, the issuance of the complaint by the Secretary, the administrative determination of the amount due, and the nonpayment of such amount. By answer, Harp pleaded that the complaint failed to state a claim upon which relief could be granted; that the contracts were not covered by the Walsh-Healey Act; that the decision of the Administrator had no binding force and effect and was void; and that action was barred by limitations. The United States filed a motion for summary judgment, based upon the pleadings in the •case and the record of the proceedings before the Department of Labor. A transcript of the hearings before the trial examiner, the findings of fact and conclusions of law and recommendations of the examiner, and the findings and order of the Administrator were attached to the motion. Summary judgment in the amount of $6,-970 was entered for the United States, and Harp appealed. It is insisted that the cause of action for liquidated damages under the Walsh-Healey Act accrues upon the breach of the contract; that the cause of action pleaded in the complaint herein accrued at the time the several girls were employed and worked; that the cause of action was barred by limitations; and that the court erred in refusing to sustain the plea of limitations. For purposes of this case, it may be assumed without so deciding that the cause of action pleaded in the complaint accrued at the time of the employment of the girls in violation of the contract and of the Act, not upon the decision of the Secretary of Labor or his representative; and it may also be assumed without so deciding that section 6 of the Portal Act has application to an action of this kind instituted by the United States for liquidated damages under the Walsh-Healey Act. All of the violations which are the subject of this action took place prior to the date on which the Portal Act became effective. The suit was instituted less than one hundred and twenty days after the Act took effect. And therefore it was begun within the grace-period fixed in section 6(c) of such Act. In an effort to avoid the conclusion that the suit was instituted within the time allowed by section 6(c) of the Portal Act, it is argued that at the time the suit was begun it was barred by an applicable statute of limitation of Oklahoma. It is well settled that in ordinary circumstances state statutes of limitation are not applicable to actions brought by the United States. United States v. Thompson, 98 U.S. 486, 25 L.Ed. 194; United States v. Nashville, Chattanooga and St. Louis Railway Company, 118 U.S. 120, 6 S.Ct. 1006, 30 L.Ed. 81; Chesapeake and Delaware Canal Company v. United States, 250 U.S. 123, 39 S.Ct. 407, 63 L.Ed. 889; United States v. Minnesota, 270 U.S. 181, 46 S.Ct. 298, 70 L.Ed. 539; Guaranty Trust Co. v. United States, 304 U.S. 126, 58 S.Ct. 785, 82 L.Ed. 1224; Board of Commissioners of Jackson County v. United States, 308 U.S. 343, 60 S.Ct. 285, 84 L.Ed. 313; United States v. Summerlin, 310 U.S. 414, 60 S.Ct. 1019, 84 L.Ed. 1283. It lies within the power of Congress to provide by act that state statutes of limitation shall have application to suits instituted by the United States. But statutes of limitation sought to be applied to bar rights of the United States must be strictly construed in favor of the United States. E. I. Dupont De Ne-mours & Co. v. Davis, 264 U.S. 456, 44 S. Ct. 364, 68 L.Ed. 788. Section 6(c) of the Portal Act does not provide expressly or by fair implication that state statutes of limitation not previously applicable shall have application to suits of this kind instituted by the United States for the recovery of liquidated damages under the Walsh-PIealey Act. It refers to state statutes of limitation having application at the time of the enactment of the Portal Act. And it merely provides that where a, state statute is applicable and prescribes a period less than two years it shall continue to be applicable, and if it already barred the action to which it applies, the action shall not be revived. Since at the time of the enactment of the Portal Act state statutes of limitation were not applicable to suits brought by the United States for the recovery of liquidated damages under the terms of the Walsh-Healey Act, section 6(c) did not have the effect of making the state statutes of limitation of Oklahoma applicable to this action. The further contention is that the court erred in holding that the findings and decision of the Administrator of the Wage and Hour and Public Contracts Division of the Department of Labor were conclusive in this action. It is argued in support of the contention that the Administrator assessed liquidated damages in part on the basis of violation of the Walsh-Healey Act; that there is no authority to assess damages on that basis; that damages were also assessed in part for violation of the conditions contained in the order of exemption of the Secretary; and that there is no authority for the assessment of liquidated damages on that basis. The order of exemption issued by the Secretary authorized the employment in certain industries, including that of processing of food, of girls sixteen and seventeen years of age but provided that they should not be employed for more than eight hours per day and required the keeping'on file of certificates of age of such girls. The findings of the examiner, adopted by the Administrator, listed the contracts, named the minors employed, specified their ages, and set out the days and dates on which they worked. And as to the girls- sixteen and seventeen years of age it was found that some had been employed for more than eight hours a day and that records had not been kept in compliance with the conditions contained in the order of exemptions. Based upon these findings, it was concluded in effect that Harp was liable under the Act for liquidated damages for breaches of the contracts. It was not concluded that he was liable for breaches of the certificate of exemption. The findings and conclusions were sufficient to comply with the Act. The trial court was warranted in finding that they were supported by a preponderance of the evidence. And section 5 of the Act expressly provides in language too clear for doubt that where the findings comply with the requirements of the Act and are supported by á preponderance of the evidence, they shall be conclusive in a case of this kind. The judgment is affirmed. Question: What is the specific issue in the case within the general category of "economic activity and regulation"? A. taxes, patents, copyright B. torts C. commercial disputes D. bankruptcy, antitrust, securities E. misc economic regulation and benefits F. property disputes G. other Answer:
songer_majvotes	2	What follows is an opinion from a United States Court of Appeals. Your task is to determine the number of judges who voted in favor of the disposition favored by the majority. Judges who concurred in the outcome but wrote a separate concurring opinion are counted as part of the majority. For most cases this variable takes the value "2" or "3." However, for cases decided en banc the value may be as high as 15. Note: in the typical case, a list of the judges who heard the case is printed immediately before the opinion. If there is no indication that any of the judges dissented and no indication that one or more of the judges did not participate in the final decision, then all of the judges listed as participating in the decision are assumed to have cast votes with the majority. The number of majority votes recorded includes district judges or other judges sitting by designation who participated on the appeals court panel. If there is an indication that a judge heard argument in the case but did not participate in the final opinion (e.g., the judge died before the decision was reached), that judge is not counted in the number of majority votes. UNITED NATIONS KOREAN RECONSTRUCTION AGENCY, Plaintiff-Appellant, v. GLASS PRODUCTION METHODS, INC., Defendant-Appellee. UNITED NATIONS KOREAN RECONSTRUCTION AGENCY, Plaintiff-Appellant, v. FRAZIER-SIMPLEX, INC., Defendant-Appellee. Nos. 224, 225, Docket Nos. 26496, 26497. United States Court of Appeals Second Circuit. Argued Feb. 9, 1961. Decided May 17, 1961. Thorold J. Deyrup, New York City (Berle, Berle & Brunner, Robert H. Sea-bolt, Stuart D. Wechsler, New York City, on the brief), for plaintiff-appellant. John H. Babigian, New York City (H. A. & C. E. Heydt, New York City, on the brief), for defendant-appellee Glass Production Methods, Inc. Murray I. Gurfein, New York City (Robert J. Haft and Goldstein, Judd & Gurfein, New York City, on the brief), for defendant-appellee Frazier-Simplex, Inc. Before LUMBARD, Chief Judge, MADDEN, Judge, United States Court of Claims, and WATERMAN, Circuit Judge. Sitting by designation. LUMBARD, Chief Judge. These are appeals from judgments entered by the United States District Court for the Southern District of New York denying relief to the United Nations Korean Reconstruction Agency (hereinafter UNKRA) on its claims against Glass Production Methods, Inc., formerly Frazier-Simplex International Corporation (hereinafter International), and Frazier-Simplex, Inc. (hereinafter Simplex). In its complaints, UNKRA alleged that Simplex had, through its agent International, contracted with UNKRA for the design and construction of a flat glass plant in Korea, or that it had created apparent authority in International to enter into such a contract in its behalf. Both Simplex and International are also charged with fraud, and International with breach of a warranty of authority. Simplex repudiated the contract signed by International, and UNKRA brought these suits to recover for the added expenses and delay caused by the repudiation. The actions were consolidated for trial. After hearing the evidence, Judge Weinfeld filed an opinion, 184 F.Supp. 51, in which the facts are fully stated and we need not repeat them here. He held that Simplex had been bound to perform under the contract signed in its name by International because it had created apparent authority in International to sign a contract in its behalf; that UNKRA thereafter waived all its claims against Simplex in exchange for Simplex’s promise to perform engineering services for the plant to be built in Korea; and that all rights against International arising out of the negotiations leading up to the first contract signed by International were surrendered by UNKRA in exchange for International’s promise to supervise various phases in the construction of the plant. The court directed entry of final judgment for the defendants, and the plaintiff has taken these appeals. UNKRA maintains that the district court erred in several respects, some involving questions of fact on which our power to review is limited by Rule 52(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A., and others turning on the construction of written contracts, which are fully open to appellate review. See Iravani Mottaghi v. Barkey Importing Co., 2 Cir., 244 F.2d 238, 248, certiorari denied 1957, 354 U.S. 939, 77 S.Ct. 1402, 1 L.Ed.2d 1538. 1. The first contract signed by any of the parties was the one of June 1954, ' to which Lyon McCandless, International’s principal executive officer and Thomas Jamieson, contracting officer for UNKRA, were signatories. UNKRA does not claim here that McCandless had actual authority from Simplex to enter into this contract on its behalf. The agreement between Simplex and International clearly reserved to Simplex the right to reject any business submitted to it by International, and Simplex exercised this prerogative. Judge Weinfeld found, however, that Simplex had, by its arrangement with International and by its acquiescence in the acts of International, conferred on McCandless apparent authority to conclude an agreement that would bind Simplex. The facts upon which this conclusion is based are supported by the record, and we agree with the trial judge’s finding that the appearance of authority in International was “abundantly established.” Simplex contends that the doctrine of apparent authority is available only to parties who act with reasonable prudence, and that UNKRA was not justified in relying on the representations of McCandless. Judge Weinfeld disagreed and held that “UNKRA * * was justified in relying upon the apparent authority of International to enter into said agreement.” 184 F.Supp. at page 57. This conclusion required the formulation of a standard of care and an application of that standard to the facts as determined by the trial court. Under the rule in this circuit, such a finding is freely reviewable on appeal. Romero v. Garcia & Diaz, 2 Cir., 1960, 286 F.2d 347, 355, certiorari denied 1961, 81 S.Ct. 905, and cases there cited. On the record in this case, we agree with Judge Weinfeld’s conclusion that UNKRA was reasonable in relying on the indicia of authority conferred upon International by Simplex. Not only did Simplex forward the original request for information submitted by UN- ' KRA to International for response, but it permitted International to distribute advertising material the content of which implied that International was Simplex’s alter ego “Outside the U. S. A.” The mere fact that the contract was a specialized and detailed one and that it called for a considerable expenditure of funds did not impose upon UNKRA the duty of inquiring as to the written authority of International, which it may well have considered to be established beyond question. Since we agree with Judge Weinfeld that Simplex was bound by the contract of June 1954 because it had conferred indicia of authority on International, we need not inquire into whether, regardless of any apparent authority, Simplex ratified the contract by its actions after June 1954. 2. In October 1954, when UNKRA discovered that Simplex did not consider itself bound by the contract of June 1954, UNKRA entered into negotiations directly with Simplex, which then maintained that it was not obligated to perform under the June contract. As a result of these conferences, a contract was signed in January 1955 by J. Earl Frazier for Simplex, John L. Thurs-ton for UNKRA, and Lyon McCandless for International and for Frazier-Simplex Korea, Inc., a newly organized Connecticut corporation not a party to this litigation, which was the assignee of the June contract and which undertook responsibility for the work other than the engineering duties which were assumed by Simplex. Under the contract Simplex agreed to perform the engineering and design services required for the construction of the flat glass plant in Korea. It was Simplex’s conduct during these conferences which, according to UNKRA’s complaint, amounted to fraud and vitiated the agreement which the parties reached in January. In the district court UNKRA contended that Simplex’s false disclaimer of liability and its failure to disclose the full terms of its agency agreement and dealings with International amounted to fraud. UNKRA’s counsel testified that the attorney for Simplex had refused to show him a copy of the agency agreement between Simplex and International, and that all during the negotiations prior to the January 1955 contract UNKRA was ignorant of the real relationship between Simplex and International. Simplex’s attorney testified to the contrary. Judge Weinfeld resolved the issue of credibility in favor of Simplex and decided that “the terms of the agency agreement were known to UNKRA’s representatives before the January 1955 agreement was signed.” We accept this finding of fact as it is not shown to be clearly erroneous. Federal Rule of Civil Procedure 52(a). On this appeal UNKRA abandons its claim of fraud and contends that the January 1955 contract was voidable because UNKRA accepted its terms under a material mistake of fact or law induced by Simplex. UNKRA claims that Simplex did not, during the course of the negotiations, disclose fully the part it played in creating the appearance that International had authority to bind Simplex. Thus, even if, as Judge Weinfeld found, Simplex in good faith disputed its liability without any purpose of misleading UNKRA, UNKRA would have us relieve it of the effect of the January 1955 contract on the ground that Simplex’s conduct during negotiations was in fact misleading. This contention is without merit. The issue of Simplex’s liability under the June 1954 contract was disputed by the parties in good faith. UNKRA certainly had knowledge of the representations which had caused it to believe that International had been authorized to bind Simplex, and it could have discovered the source of those representations during the conferences with Simplex by asking Simplex’s attorney about them. Simplex did not believe that it was liable on the contract, and it was not obliged to volunteer, for UNKRA’s benefit, all the arguments which might'be used in establishing a case against it under the doctrine of apparent authority. UNKRA maintains now that it was misled by Simplex into believing that no case could be made out against Simplex under the June 1954 contract, and that it therefore contracted directly with Simplex in January 1955. A more discerning view of UNKRA’s attitude appears to be that taken by Judge Weinfeld: “The project was stalled on the issue of whether Simplex was a party to the June 1954 agreement. Coulter [Agent General of UNKRA], confronted with this embarrassing situation, was determined to cut through the red tape, and was intent upon getting Simplex to do the design work. He was not interested in a lawsuit which offered only the prospect of further delay and uncertainty of result. Accordingly, when it appeared that Simplex would not participate, General Coulter, to secure its services promptly, directed his staff to negotiate at once with its representatives to avoid further delay and embarrass-, ment.” 184 F.Supp. at page 59. Even if Simplex had done what we hold it was not obliged to do and had told the full story of its role in clothing International with indicia of authority, it seems clear that UNKRA would not have sued it on the June 1954 contract but would have done just what it did do, namely enter into the January 1955 agreement in order to complete the construction of the plant with dispatch. 3. It was, therefore, in a desire to proceed with the plans which had been drafted that the parties met and agreed on the terms of the January 1955 contract. UNKRA argues that the January 1955 agreement was nothing more than an executory accord which, until it was fully performed by Simplex, did not release Simplex of any liability it had incurred under the June 1954 contract. In support of this claim, UNKRA points to Article XXVII of the January agreement, which provides: “Except as hereinabove modified, all the terms and conditions of the Contract dated June 25, 1954 shall remain in full force and effect.” However, the contract did not expressly reserve any rights which had accrued against Simplex, nor did the UNKRA officials believe at the time they entered into the agreement that their claim against Simplex would prevail if tested in litigation. Had Simplex been a signatory to the earlier contract, it might indeed be improbable that UNKRA would relinquish its rights against a company which was clearly bound to some performance merely to substitute for them other possible claims. But in this case the evidence reveals that UNKRA may well have found it so desirable to bind Simplex to some performance that it was willing, in exchange, to surrender certain doubtful claims which had already arisen. Whether the January 1955 contract was an executory accord or a substituted contract' — whether it was performance or a promise that UNKRA was accepting in satisfaction of its claim — is a question that turns on the intention of the parties. E. g., Moers v. Moers, 1920, 229 N.Y. 294, 128 N.E. 202, 14 A.L.R. 225. Judge Weinfeld held that “the sole agreement which governs the rights of Simplex and UNKRA is that of January 1955, and upon its execution, Simplex was discharged from any obligation under the June 1954 agreement.” This conclusion was based not merely on the construction of the written terms of the contract but on the trial judge’s impression of the witnesses who testified, including those who negotiated for UNKRA and Simplex. We cannot say that the conclusion that the parties intended a novation is clearly erroneous under Federal Rule of Civil Procedure 52(a), and we affirm this finding of the district court. 4. Even after the January 1955 contract, there remained the obligation of International under and because of the June 1954 agreement. Judge Weinfeld construed certain letter contracts of February 16, 1955, signed by representatives of UNKRA and International, as waiving all claims arising out of the June 1954 contract which could be asserted by UNKRA against International. The crucial clause in the letters is the following: “Frazier [meaning Frazier-Simplex Korea, Inc.] and International are hereby relieved of their obligations under Title I of the Contract dated June 25, 1954.” The trial judge held that in exchange for being relieved of any liability because of the June 1954 contract, International “was clearly recognized as the principal for the performance of the construction, procurement and supervision.” 184 F.Supp. at page 62. He construed the letter contracts as an exchange whereby International, under the name of Frazier-Simplex Korea, Inc., its alter ego, undertook performance of all but the engineering portion of the contract in return for a waiver of all possible liability for its prior conduct in regard to UNKRA and the Korean project. We disagree. Since the trial judge’s conclusion here turned not on his impressions of the states of mind of witnesses who testified at the trial but on the construction of written documents, his ultimate finding concerning the intent of the parties is freely reviewable on appeal. E. g., United States v. John McShain, Inc., 103 U.S.App.D.C. 328, 258 F.2d 422, certiorari denied 1958, 358 U.S. 832, 79 S.Ct. 52, 3 L.Ed.2d 70. In the contract of June 1954, International was named as the principal for the performance of all the services due under the agreement. It was to take charge not only of the engineering or design phase of the project, but was also obliged to perform with respect to procurement, construction, supervision, inspection, and technical assistance to the operating staff. The agreement of January 1955 concerned only Title I of the June 1954 contract, and it bound Simplex to perform’ the engineering or design services necessary for the project. Article VII of the January 1955 contract read as follows: “a. It is understood and agreed that, except as set forth in paragraph b. below, Frazier [International] shall be relieved of all those obligations set forth in the Contract dated June 25, 1954, which are undertaken by Engineers [Simplex] under the terms of this Contract; it being further understood that the above undertakings by Engineers shall fulfill all requirements and obligations of Frazier to UNKRA under Title I of the Contract dated June 25, 1954, except as modified by this Contract. “b. Frazier shall not be relieved of its obligation under Title I of the Contract dated June 25, 1954 pending a complete adjustment and settlement with respect to funds transferred under Title I of that Contract.” The first letter contract of February 16, 1955, expressly referred to Article VII of the January 1955 contract, and, in relation to that clause, purported to complete the orderly transfer of responsibility for Title I of the project from International to Simplex. Certain trust funds which were held by International as advance payments for the design and engineering work were to be returned to UNKRA. Thus, once the parties had agreed to the terms of this letter, International was relieved of the obligation to perform engineering services, which it had undertaken in June 1954. But with this transfer of responsibility, UNKRA did not manifest any intention of relieving International of its separate liability for losses caused by its fraud or breach of warranty of authority. Having concluded an agreement with Simplex whereby, at added expense, Simplex undertook the engineering duties, UNKRA would naturally be expected to relinquish the promise made to it by International to perform the same services. But there would be no reason for UNKRA to waive, for no consideration whatever, the rights which had arisen against International because of the misrepresentations of Mr. Mc-Candless. International was bound to perform all the phases of the construction once it signed the June 1954 agreement. We do not, therefore, agree with Judge Weinfeld's conclusion that UNKRA, in exchange for releasing rights, secured International’s obligation to act as the principal for the performance of various duties. These obligations dated back to the June 1954 contract, and UNKRA would not have benefited at all by having them reaffirmed. It certainly would not have surrendered the claims which had arisen against International because of McCandless’ misrepresentations merely in order to have International repeat its earlier promise to perform, to which it was already indisputably bound. For these reasons we affirm the judgment of the district court in favor of Frazier-Simplex, Inc. on appeal number 26497; we reverse the judgment entered for Glass Production Methods, Inc., and remand case number 26496 to the district court for further proceedings. Question: What is the number of judges who voted in favor of the disposition favored by the majority? Answer:
songer_subevid	D	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in civil law issues involving government actors. The issue is: "Did the court's interpretation of the substantial evidence rule support the government? For example, "such evidence as a reasonable mind might accept as adequate to support a conclusion" or "more than a mere scintilla". This issue is present only when the court indicates that it is using this doctrine, rather than when the court is merely discussing the evidence to determine whether the evidence supports the position of the appellant or respondent." Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". Fredric C. MUNTWYLER, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant. No. 82-1882. United States Court of Appeals, Seventh Circuit. Argued Dec. 6, 1982. Decided March 31, 1983. William A. Whitledge, Dept, of Justice, Tax Div., Washington, D.C., for defendant-appellant. Paul Horowitz, Chicago, Ill., for plaintiffappellee. Before CUMMINGS, Chief Judge, PELL, Circuit Judge, and HOFFMAN, Senior District Judge. Walter E. Hoffman, Senior District Judge for the United States District Court for the Eastern District of Virginia, sitting by designation. PELL, Circuit Judge. The United States appeals from a decision of the district court awarding appellee Fredric C. Muntwyler (taxpayer) a refund of $1288.30 plus interest for overpayment of taxes. The court ruled that the assignee of the assets of the taxpayer’s corporation was entitled to direct that the tax payments he made to the Internal Revenue Service (IRS) be applied to trust fund tax liabilities because the payments were voluntary. The Government contends that the payments were involuntary and thus that the IRS was not bound by the assignee’s directions and could apply the payments to non-trust fund tax liabilities. I. FACTS Fredric C. Muntwyler was the president, treasurer, director, and majority shareholder of Air Mid-America Airlines for the period relevant to this case. Air Mid-America was an Illinois corporation formed in 1968. Beginning in late 1972, the company suffered financial losses and ceased doing business in May 1973. Because of these problems, the company failed to pay certain employees’ withholding taxes (trust fund taxes) and excise taxes (non-trust fund taxes). On June 13, 1973, the company assigned all of its assets to Bernard C. Chaitman, who served as a trustee for the benefit of Air Mid-America’s creditors. Chaitman was authorized to collect debts payable to the company, sell the company’s interests in the assigned assets, and pay the claims of the company’s creditors. In August 1973, the IRS filed a claim with Chaitman for unpaid corporate taxes totalling $32,242.47, representing both trust fund and non-trust fund liabilities. On August 25, 1973, Chaitman presented three checks to the IRS, totalling $12,132.93, all of which directed that they be applied to the trust fund portion of the tax liabilities. The Service accepted the checks but refused to honor the directions for application of the money to the trust fund liability; instead, it allocated the entire amount to the non-trust fund liability. On November 3, 1976, the IRS assessed the taxpayer $18,633.21 in trust fund taxes and, on November 15, $1,030.02 in non-trust fund taxes. On April 15, 1977, the IRS credited the taxpayer’s $13,526 unrelated 1976 overpayment to the withholding liabilities. On May 5, 1977, the taxpayer paid $1288.30 toward the tax liabilities, and then filed a claim for a refund. On June 6,1980, after the IRS rejected his claim for refund of the $1288.30, the taxpayer brought this action for refund in the United States District Court for the Northern District of Illinois. On December 22,1980, the taxpayer filed a second claim for refund with the IRS, seeking to collect the $13,526 credited from his 1976 overpayment. The IRS rejected the claim and the taxpayer amended his complaint to include a claim for a refund of this money. Both parties filed motions for summary judgment. On February 26, 1982, the district court granted the appellee’s motion, holding that the assignee’s payment was voluntary and thus that the IRS should have followed his direction as to the payment. The court awarded the taxpayer $1288.30 plus interest in the amount of $550.55. The court ruled that the claim for a refund of the $13,526 in credited overpayments was barred by the statute of limitations, a ruling that the taxpayer does not contest. The Government appealed. II. VOLUNTARINESS The Internal Revenue Code directs employers to deduct and withhold a tax upon wages paid. 26 U.S.C. § 3401(a). The withheld taxes are deemed to be held in a special fund in trust for the United States, id. § 7501(a), and accordingly every person required to collect and pay over such a tax (including an officer of the corporation, like the taxpayer here, id. § 6671(b)) is personally liable for the full amount of the tax not paid, id. § 6672. An individual, like the taxpayer, is not personally liable for unpaid non-trust fund taxes. What the taxpayer sought to do in this case was to extinguish his personal liability for unpaid trust fund taxes by having the assignee direct that the payments be credited against the trust fund liability. When a taxpayer .makes voluntary payments to the IRS, he has a right to direct the application of payments to whatever type of liability he chooses. O’Dell v. United States, 326 F.2d 451, 456 (10th Cir. 1964). If the taxpayer makes a voluntary payment without directing the application of the funds, the IRS may make whatever allocation it chooses. Liddon v. United States, 448 F.2d 509, 513 (5th Cir. 1971), cert. denied, 406 U.S. 918, 92 S.Ct. 1769, 32 L.Ed.2d 117 (1972). When a payment is involuntary, IRS policy is to allocate the payments as it sees fit. Policy Statement P-5-60, reprinted in Internal Revenue Manual (CCH) 1305-15. This rule has been uniformly followed by the courts. See, e.g., United States v. De Beradinis, 395 F.Supp. 944, 952 (D.Conn. 1975) , aff’d mem., 538 F.2d 315 (2d Cir. 1976) . Despite the appellee’s objection, we accept this rule as sensible tax policy. The sole question, therefore, is whether the district court correctly held that the assignee’s payment was voluntary. The Government’s position is that a payment is involuntary if it is made pursuant to administrative or judicial action. The Government claims that by submitting a claim for unpaid taxes to the assignee, the IRS took administrative action sufficient to make the resulting payment involuntary. The district court, by contrast, held that court involvement or administrative seizure of property was required to make a payment involuntary. A starting point for ascertaining whether the payments were voluntary is the Tax Court’s frequently cited definition of involuntary payments in Amos v. Commissioner, 47 T.C. 65, 69 (1966): “An involuntary payment of Federal taxes means any payment received by agents of the United States, as a result of distraint or levy or from a legal proceeding in which the Government is seeking to collect its delinquent taxes or file a claim therefor.” The Government contends that this case falls within the Amos definition of involuntariness because the claim it filed was an administrative action, just as a levy is an administrative action. We disagree. The distinction between a voluntary and involuntary payment in Amos and all the other cases is not made on the basis of the presence of administrative action alone, but rather the presence of court action or administrative action resulting in an actual seizure of property or money as in a levy. No authorities support the proposition that a payment is involuntary whenever an agency takes even the slightest action to collect taxes, such as filing a claim or, as appears to be a logical extension of the Government’s position, telephoning or writing the taxpayer to inform him of taxes due. The strongest indication that our holding is correct is the language of the IRS policy statement on which the Government bases its claim in this ease. In discussing 26 U.S.C. § 6672, the section making a corporate officer liable for trust fund taxes, the statement says: “The taxpayer, of course, has no right of designation in the case of collections resulting from enforced collection measures.” Policy Statement P-5-60, reprinted in Internal Revenue Manual (CCH) 1305-15 (emphasis added). Use of the phrase “enforced collection measures” belies the Government’s contention that any administrative action is enough to render payment made in response to that action involuntary. We do not understand how the Government can reasonably argue that merely filing a claim for back taxes is an “enforced collection measure.” Furthermore, the cases uniformly define an involuntary payment as one made pursuant to judicial action or some form of administrative seizure, like a levy. A recent case on the subject is Arnone v. United States, 79-1 U.S. Tax Cas. (CCH) ¶9356 (N.D.Ohio 1979). There, the court held that the payment was involuntary because it was pursuant to a levy on a bank account: “[T]he plaintiff had no right to direct the application of funds obtained through enforced collection by administrative seizure.” Id. at 86,846. Similarly, the court in United States v. De Beradinis, 395 F.Supp. 944 (D.Conn.1975), aff’d mem., 538 F.2d 315 (2d Cir.1976), held that payments were involuntary where “they resulted from Internal Revenue levies or participation in litigation.” Id. at 952. Cases holding that payments made in bankruptcy are involuntary do not support the Government’s position because court action is involved. In First National City Bank v. Kline, 439 F.Supp. 726, 729 (S.D.N.Y.1977), the court held the payments involuntary, saying that “[wjhere, as here, moneys are repaid under judicial order, the court has exclusive authority to apply the funds.” Likewise, in O’Dell v. United States, 326 F.2d 451, 456 (10th Cir.1964), the court said that a debtor could not direct application of his money to such debts as he chose “where, as here, the payment is made involuntarily as in an execution or judicial sale.” In the instant case, there was no levy, judicial order, execution, or judicial sale; rather, there was a mere filing of a claim. The Government contends that In re Bulk Sale of Inventory, 6 Kan.App.2d 579, 631 P.2d 258 (1981), supports its position that administrative action is sufficient to render a payment involuntary. In that case, the corporation turned over its assets to auctioneers, who sold them. The auctioneers then deposited the sale proceeds into the registry of a state district court and filed an interpleader action requesting that creditors of the corporation be permitted to file their claims in the court, which would determine the amount to which each was entitled. The United States filed a claim with the court for unpaid withholding taxes. The district court directed payments to the Government. 631 P.2d at 259-60. Although the Government argues that the involvement of the court was irrelevant to the Kansas court’s ruling, the language of the case shows that it was precisely the court’s involvement that was dispositive. The court said that although the debtor’s act of turning over the corporation’s assets to auctioneers was voluntary, “when the sums derived from that sale were paid into the district court and creditors were advised to file claims so that the court could decide the amount and priority to which each was entitled, the payments so ordered were involuntary.” 631 P.2d at 262 (emphasis added). Finally, the Government argues that the situation in the instant case “is in no material respect different than if ... the Government had seized corporate assets to satisfy the corporate liability or had filed a claim in a bankruptcy or receivership proceeding.” This simply is wrong. That the IRS could have seized the assets does not mandate that we hold that filing a claim is the same as seizing the property. We will not interpret “involuntary” to mean something completely at odds with the normal understanding of the term and against all authority simply to reach an arguably desirable result or to correct what may have been a mistake in collection tactics by the IRS. CONCLUSION For the foregoing reasons, the judgment of the district court is affirmed. Affirmed. . In two other cases, Liddon v. United States, 448 F.2d 509, 513 (5th Cir.1971), cert. denied, 406 U.S. 918, 92 S.Ct. 1769, 32 L.Ed.2d 117 (1972), and Abrams v. United States, 333 F.Supp. 1134, 1140, 1145 (S.D.W.Va.1971), the courts did not reach the distinction between involuntary and voluntary payments because the taxpayers had not attempted to direct how the funds were to be applied. . The Government might have been correct in its claim if the corporation had been in bankruptcy, which it was not. An assignment for the benefit of creditors is an act of bankruptcy and presumably any creditor, including the Government, could have proceeded to file an involuntary petition for bankruptcy based thereon, but no creditor, including the Government, did so. We do not equate the assignment for the benefit of creditors with a formal bankruptcy proceeding. Question: Did the court's interpretation of the substantial evidence rule support the government? For example, "such evidence as a reasonable mind might accept as adequate to support a conclusion" or "more than a mere scintilla". This issue is present only when the court indicates that it is using this doctrine, rather than when the court is merely discussing the evidence to determine whether the evidence supports the position of the appellant or respondent. A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
sc_respondent	269	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. BAYSIDE ENTERPRISES, INC., et al. v. NATIONAL LABOR RELATIONS BOARD No. 75-1267. Argued November 10, 1976 Decided January 11, 1977 Alan J. Levenson argued the cause and filed a brief for petitioners. Harriet S. Shapiro argued the cause for respondent. On the briefs were Solicitor General Bork, John S. Irving, Carl L. Taylor, Norton J. Come, and Elinor Hadley Stillman. Mb. Justice Stevens delivered the opinion of the Court. The petitioners, collectively described as “Bayside,” are three affiliated corporations operating a large, vertically integrated poultry business in Maine. The question they present is whether six of their employees, who truck poultry feed from their feedmill to 119 farms on which their chickens are being raised, are “agricultural laborers” and therefore not covered by the National Labor Relations Act. After a few preliminary talks, Bayside refused to bargain with the union representing these drivers on the ground that they were not “employees” within the meaning of the Act. The union’s resulting unfair labor practice charge was sustained by the National Labor Relations Board and the Court of Appeals for the First Circuit. An apparent conflict with decisions of the Fifth and Ninth Circuits led us to grant certiorari, 425 U. S. 970. We now affirm. The protections of the National Labor Relations Act extend only to “employees.” Section 2 (3) of the Act; 29 U. S. C. § 152 (3), provides that the “term ‘employee’ . . . shall not include any individual employed as an agricultural laborer . . . .” Congress has further provided that the term “agricultural laborer” in the NLRA shall have the meaning specified in § 3 (f) of the Fair Labor Standards Act. It is, therefore, that section and the decisions construing it which are relevant even though this proceeding arose under the NLRA. Section 3 (f) provides, in relevant part: “ ‘Agriculture’ includes farming in all its branches [including] the raising of . . . poultry, and any practices . . . performed by a farmer or on a farm as an incident to or in conjunction with such farming operations . . . .” 52 Stat. 1060, 29 U. S. C. § 203 (f). This statutory definition includes farming in both a primary and a secondary sense. The raising of poultry is primary farming, but hauling products to or from a farm is not primary farming. Such hauling may, however, be secondary farming if it is work performed “by a farmer or on a farm as an incident to or in conjunction with such farming operations Since there is no claim that these drivers work “on a farm,” the question is whether their activity should be regarded as work performed “by a farmer,” The answer depends on the character of their employer’s activities. An employer’s business may include both agricultural and nonagricultural activities. Thus, even though most of the operations on a sugar plantation are agricultural, persons employed in the plantation’s sugar-processing plant are not “agricultural employees.” Maneja v. Waialua Agricultural Co., 349 U. S. 254, 264-270. In this case, both parties agree that some of Bayside’s operations are agricultural and some are not. The mill in which Bayside produces poultry feed and the processing plant in which it slaughters and dresses poultry are not agricultural operations. On the other hand, the six farms on which it produces hatching eggs, and its activities in breeding and hatching chicks, are clearly agricultural in character. The parties are in dispute with respect to the character of Bayside’s work related to the raising of the chickens. The chickens are raised on 119 separate farms owned and operated by independent contractors. Pursuant to a standard contractual arrangement, Bayside provides each such farm with chicks, feed, medicine, fuel, litter, and vaccine. Bay-side retains title to the chicks and pays the farmer a guaranteed sum, plus a bonus based on the weight of the bird when grown, in exchange for the farmer’s services in housing and caring for the chicks. Bayside delivers the chicks to the independent farms when they are one day old and picks them up for processing about nine weeks later. During the nine-week period, the contract farmers feed the chicks with poultry feed delivered to their feedbins by Bayside drivers. Bayside argues that the activity on the independent farms is part of Bayside’s farming operation. The argument is supported by the pervasive character of its control over the raising of the chicks, its ownership of the chicks, its assumption of the risks of casualty loss and market fluctuations, and its control over both the source and the destination of the poultry. In response, the Labor Board argues that the owners of the farms are independent contractors rather than employees of Bayside and therefore the farming activity at these locations is attributable to them rather than to Bayside. The Labor Board has squarely and consistently rejected the argument that all of the activity on a contract farm should be regarded as agricultural activity of an integrated farmer such as Bayside. This conclusion by the Board is one we must respect even if the issue might “with nearly equal reason be resolved one way rather than another.” Even if we should regard a contract farm as a hybrid operation where some of the agricultural activity is performed by Bayside and some by the owner of the farm, we would nevertheless be compelled to sustain the Board’s order. For the activity of storing poultry feed and then using it to feed the chicks is work performed by the contract farmer rather than by Bayside. Since the status of the drivers is determined by the character of the work which they perform for their own employer, the work of the contract farmer cannot make the drivers agricultural laborers. And their employer’s operation of the feedmill is a nonagricultural activity. Thus, the Board properly concluded that the work of the truck drivers on behalf of their employer is not work performed “by a farmer” whether attention is focused on the origin or the destination of the feed delivery. The Board’s conclusion that these truck drivers are not agricultural laborers is based on a reasonable interpretation of the statute, is consistent with the Board’s prior holdings, and is supported by the Secretary of Labor’s construction of § 3 (f) , Moreover, the conclusion applies to but one specific instance of the “[m]yriad forms of service relationship, with infinite and subtle variations in the terms of employment, [which] blanket the nation’s economy,” and which the Board must confront on a daily basis. Accordingly, regardless of how we might have resolved the question as an initial matter, the appropriate weight which must be given to the judgment of the agency whose special duty is to apply this broad statutory language to varying fact patterns requires enforcement of the Board’s order. The judgment of the Court of Appeals is Affirmed. Bayside Enterprises, Inc., and its wholly owned subsidiary Poultry Processing, Inc., are operating corporations; the subsidiary Penobscot Poultry Co. is apparently inactive. The drivers are represented by Truck Drivers, Warehousemen and Helpers Union, Local No. 340, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. That local and the Amalgamated Meatcutters Local 385 jointly represent employees in petitioners’ processing plant. 216 N. L. R. B. 502, enf’d, 527 F. 2d 436 (1975). The Board’s order requires Bayside to bargain with the union. NLRB v. Strain Poultry Farms, Inc., 405 F. 2d 1025 (CA5 1969); NLRB v. Ryckebosch, Inc., 471 F. 2d 20 (CA9 1972). 49 Stat. 449, as amended, 29 U. S. C. § 151 et seq. Annually since 1946, Congress, in riders to the Appropriations Acts for the Board, has tied the definition of “agricultural laborer” in § 2 (3) of the NLRA to § 3 (f) of the FLSA. The latest such rider (90 Stat. 23) provides in relevant part as follows: “Provided, That no part of this appropriation shall be available to organize or assist in organizing agricultural laborers or used in connection with investigations, hearings, directives, or orders concerning bargaining units composed of agricultural laborers as referred to in section 2 (3) of the Act of July 5, 1935 (29 U. S. C. 152), and as amended by the Labor-Management Relations Act, 1947, as amended, and as defined in section 3 (f) of the Act of June 25, 1938 (29 U. S. C. 203) . . . .” “First, there is the primary meaning. Agriculture includes farming in all its branches. Certain specific practices such as cultivation and tillage of the soil, dairying, etc., are listed as being included in this primary meaning. Second, there is the broader meaning. Agriculture is defined to include things other than farming as so illustrated. It includes any practices, whether or not themselves farming practices, which are performed either by a farmer or on a farm, incidentally to or in conjunction with 'such’ farming operations.” Farmers Reservoir & Irrigation Co. v. McComb, 337 U. S. 755, 762-763. These operations are conducted by the subsidiary, Poultry Processing, Inc., which employs about 20 workers at its feedmill and about 380 at its processing plant in Belfast, Me. The Board has held that “when an employer contracts with independent growers for the care and feeding of the employer’s chicks, the employer’s status as a farmer engaged in raising poultry ends with respect to those chicks.” Imco Poultry, 202 N. L. R. B. 259, 260 (1973), citing Strain Poultry Farms, Inc., 160 N. L. R. B. 236 (1966); 163 N. L. R. B. 972 (1967), enf. denied, 405 F. 2d 1025 (CA5 1969); Victor Ryckebosch, Inc., 189 N. L. R. B. 40 (1971), enf. denied, 471 F. 2d 20 (CA9 1972). Cf. Norton & McElroy Produce, Inc., 133 N. L. R. B. 104 (1961). This is an instance of the kind contemplated by Mr. Justice Frankfurter in his concurrence in Farmers Reservoir & Irrigation Co., supra, at 770: “Both in the employments which the Fair Labor Standards Act covers and in the exemptions it makes, the Congress has cast upon the courts the duty of making distinctions that often are bound to be so nice as to appear arbitrary in relation to each other. A specific situation, like that presented in this case, presents a problem for construction which may with nearly equal reason be resolved one way rather than another.” The Board has found in comparable situations that delivery is incidental to the feedmill operation and therefore not an agricultural activity. McElrath Poultry Co., 206 N. L. R. B. 354, 355 (1973), enf. denied, 494 F. 2d 518 (CA5 1974); Samuel B. Gass, 154 N. L. R. B. 728, 732-733 (1965), enf'd, 377 F. 2d 438 (CA1 1967). Samuel B. Gass, supra; Strain Poultry Farms, Inc., supra; Victor Ryckebosch, Inc., supra; Abbott Farms, Inc., 199 N. L. R. B. 472 (1972), enf. denied, 487 F. 2d 904 (CA5 1973); Imco Poultry, supra; McElrath Poultry Co., Inc., supra. In 1961 the Wage and Hour Division of the Department of Labor issued an interpretative bulletin which remains effective today. It reads, in pertinent part: “Contract arrangements for raising poultry. “Feed dealers and processors sometimes enter into contractual arrangements with farmers under which the latter agree to raise to marketable size baby chicks supplied by the former who also undertake to furnish all the required feed and possibly additional items. Typically, the feed dealer or processor retains title to the chickens until they are sold. Under such an arrangement, the activities of the farmers and their employees in raising the poultry are clearly within section 3 (f). The activities of the feed dealer or processor, on the other hand, are not ‘raising of poultry’ and employees engaged in them cannot be considered agricultural employees on that ground. Employees of the feed dealer or processor who perform work on a farm as an incident to or in conjunction with the raising of poultry on the farm are employed in ‘secondary’ agriculture (see §§ 780.137 et seq., [explaining that work must be performed in connection with the farmer-employer's own farming to qualify as ‘secondary’ agriculture by a farmer] and Johnston v. Cotton Producers Assn., 244 F. 2d 553).” 29 CFR § 780.126 (1975). NLRB v. Hearst Publications, 322 U. S. 111, 126. In that opinion, id., at 131, the Court stated: ‘‘But where the question is one of specific application of a broad statutory term in a proceeding in which the agency administering the statute must determine it initially, the reviewing court’s function is limited. Like the commissioner’s determination under the Longshoremen’s & Harbor Workers’ Act, that a man is not a ‘member of a crew’ (South Chicago Coal & Dock Co. v. Bassett, 309 U. S. 251) or that he was injured ‘in the course of employment’ (Parker v. Motor Boat Sales, 314 U. S. 244) and the Federal Communications Commission’s determination that one company is under the ‘control’ of another (Rochester Telephone Corp. v. United States, 307 U. S. 125), the Board’s determination that specified persons are ‘employees’ under this Act is to be accepted if. it has ‘warrant in the record’ and a reasonable basis in law.” (Footnotes omitted.) Cf. NLRB v. United Insurance Co., 390 U. S. 254, 260; Universal Camera Corp. v. NLRB, 340 U. S. 474, 488; NLRB v. Coca-Cola Bottling Co., 350 U. S. 264, 269. 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_stpolicy	D	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the interpretation of state or local law, executive order, administrative regulation, doctrine, or rule of procedure by the court favor the appellant?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". UNITED STATES of America for the Use of the B’s COMPANY, Appellee, v. CLEVELAND ELECTRIC COMPANY OF SOUTH CAROLINA, Appellant. No. 10763. United States Court of Appeals Fourth Circuit. Argued Jan. 10, 1967. Decided Feb. 6, 1967. W. Ray Berry, Columbia, S. C. (Michael H. Quinn and Fulmer, Barnes, Berry & Austin, Columbia, £. C., on brief), for appellant. D. A. Brockinton, Jr., Charleston, S. C. (Brockinton & Brockinton, Charleston, S. C., on brief), for appellee. Before SOBELOFF, J. SPENCER BELL and WINTER, Circuit Judges. J. SPENCER BELL, Circuit Judge: This is an appeal from a judgment by the court without a jury. The B’s Company, a use plaintiff, brought suit under the provisions of the Miller Act (40 U.S.C. §§ 270a-270b (1964)) against the Cleveland Electric Company of South Carolina, a prime contractor, and its bondsman for monies due it as a subcontractor for labor and materials furnished on a contract with the Navy’s Polaris Missile Assembly Base at Charleston, South Carolina. The trial court denied a setoff claimed by the prime contractor, and from that portion of the decision it appeals. Among other things, the contract required that a building be erected and that after its completion it be covered with earth. The subcontractor’s contract required it to furnish the labor, material, and equipment necessary to perform the earth work including the obligation to place earth fill over the building. During the performance of the contract earth was removed and stored at the site to be used for covering the building. This material was inspected and accepted by the Navy’s resident officer in charge of construction. The building was completed and covered by the inspected material under Government surveillance. Performance of that portion of the contract involved in the use plaintiff’s subcontract was completed, inspected, and accepted by the Navy on November 22, 1963, and in the following January the subcontractor left the job site. On March 5, 1964, the Navy’s resident officer in charge of construction notified the prime contractor that the roof of the building leaked and ordered it to remove a part of the earth from the building, and cure the defect in the roof. All parties agreed that the defect existed, that it was a latent defect, and that it was the duty of the contractors to repair the defect promptly. This plaintiff did not have the roofing contract and was not involved in any way in that order. While the earth was removed to repair the leak, a new resident officer in charge of construction for the Navy decided that the earthen cover which this plaintiff had placed on the building did not meet contract specifications because it contained too high a percentage of organic materials, and on March 23, 1964, he ordered the prime contractor to remove all of the earth cover and replace it with other material. The prime contractor demanded of the subcontractor that it perform. The subcontractor refused on the ground that the material used to cover the building had been inspected and approved by the then officer in charge for the Navy and informed the prime contractor that neither contractor was obligated to perform since the job had been completed and accepted and this particular material had been inspected and passed by the then officer in charge, thus negativing any contention by the Navy that the alleged organic content of the material constituted a latent defect. The prime contractor notified the subcontractor that it would perform and would back charge it with all costs. After protesting the order of the resident officer in charge of construction on the ground suggested by the subcontractor, the prime contractor performed without undertaking to exhaust his administrative remedies under the disputes clause of his contract and then filed a claim for an equitable adjustment under the changes article of the contract on the theory that the Navy had changed the specifications for the cover material. The claim was disallowed by the resident officer in charge of construction but upon appeal to the Chief of the Bureau of Yards and Docks, who is known as the contracting officer under the general provisions of the contract, the claim was allowed in the amount of $63,214.00. The prime contractor back charged the subcontractor with the expense, including an attorney fee for prosecuting the claim, plus a sum equal to interest on the amount allowed for the period during which the money was withheld while the claim was being prosecuted. The district court found that the subcontractor was justified in refusing to return to the site and comply with the Navy’s order and it, therefore, denied the setoff. We conclude that the trial court’s findings of fact are not clearly in error and that its legal conclusions are correct. The basic error of the prime contractor in this appeal is his contention that the subcontractor is bound in every way and exactly as the prime contractor is bound by the terms of the prime contract. It is true that the terms of the subcontract stated that the subcontractor was bound by the terms of the prime contract and that it assumed the prime contractor’s obligations to the Government insofar as applicable to the work performed by the subcontractor, but this identical language has been held, and we think properly, not to require the subcontractor to pursue the administrative remedies given the prime contractor in the disputes article. Central Steel Erection Co. v. Will, 304 F.2d 548 (9 Cir. 1962); Fanderlik-Locke Co. v. United States ex rel. Morgan, 285 F.2d 939 (10 Cir. 1960), cert. denied, 365 U.S. 860, 81 S.Ct. 826, 5 L.Ed.2d 823 (1961). The Government does not recognize or deal with the subcontractor and owes no obligation to him for the work he performs. United States v. Blair, 321 U.S. 730, 64 S.Ct. 820, 88 L. Ed. 1039 (1944); United States v. Driscoll, 96 U.S. 421, 24 L.Ed. 847 (1877). The subcontractor is not a party to the government contract and is obligated only to perform its contract with the prime contractor without fault. Cf. John A. Johnson & Sons Inc. v. United States ex rel. Baltimore Brick Co., 153 F.2d 534 (4 Cir.), cert. denied, 328 U.S. 865, 66 S.Ct. 1372, 90 L.Ed. 1636 (1946). Having properly performed and having had its work inspected and approved by both the prime contractor and the Government, the subcontractor was entitled to collect his money and go about his business. By the terms of the contract he was entitled to his pay “on demand for his work or materials as far as executed and fixed in place, less the retained percentage, at the time the certificate should issue, even though the Architect fails to issue it for any cause not the fault of the Subcontractor.” Here the certificate had issued. If the subcontractor is not paid, his only remedy is a suit under the Miller Act. He has no lien and no claim against the Government. This is the reason for the Act and, while this right to sue may be waived by clear and express provisions in the contract between the prime contractor and the subcontractor, no such provisions are contained in the contract at issue here and no such drastic curtailment of the subcontractor’s rights will be read into a general agreement to be bound by the terms of the prime contract in so far as they affect the work of the subcontractor. See Central Steel Erection Co. v. Wills, supra; Fanderlik-Locke Co. v. United States ex rel. Morgan, supra. We think that that agreement was intended to cover the quality and manner of performance of the subcontractor, not the rights and remedies between the prime contractor and the subcontractor. Thus the obligation to pursue and to exhaust the administrative remedies provided in the disputes article of the prime contract is the prime contractor’s obligation alone, and any conflict between these divergent remedies constitutes a business risk which the parties incur by virtue of their different contracts. Cf. John A. Johnson & Sons v. United States ex rel. Baltimore Brick Co., supra. Since the subcontractor was under no obligation to perform the extra work under his contract with the prime contractor, we agree with the district court that he could not be back charged with the expenses of the prime contractor in pursuing its administrative remedies under its contract, nor for a sum equivalent to the interest on the money which the prime contractor was ultimately allowed for performing. This disposes of the appeal; however, in deference to arguments of appellant’s counsel we would add that we do not think the subcontractor would be liable for the prime contractor’s cost of pursuing his administrative remedies in this case even if it had been bound to pursue the administrative remedies set out in the prime contract. The contract plainly provides that final inspection shall relieve the parties of any further obligation except for fraud or latent defects. The Navy’s order of March 23, 1964, did not charge fraud or claim a latent defect, and indeed it could not have done so because the earth which was used had been inspected and approved by the Government and was placed under its supervision. But more important, the order of March 23, 1964, which raised a factual question, was issued by the resident officer in charge of construction and the contract specifically provides that the prime contractor does not have to act on an order involving a dispute of fact until he is commanded to do so by the contracting officer who is superior in command to the resident officer in charge of construction. The failure of the prime contractor to avail himself of this simple one-step procedural appeal — as urged by the subcontractor — before performing may very well have caused the expense involved in the appeal which was taken after the performance. Certainly at the exact time when the prime contractor ordered the subcontractor to proceed, there was no obligation on either contractor to do so before an appeal was taken to the contracting officer, who was readily available. The real cause of the prime contractor’s extra expense was the Navy’s improper order, not the subcontractor’s insistence upon his rights under both the contract and the general law. The order of March 23, 1964, did not purport to involve the changes article of the contract, which was the article under which the prime contractor mistakenly undertook to do the work. The order clearly purported to require the work to be done in order to “meet[ing] the compaction requirements for fill of 90%, all in accordance with the contract specifications.” After acceptance and certification, the Government could not compel the contractor to redo the work or do extra work, even had the order been issued by the proper authority. The Armed Services Board of Contract Appeals has so ruled in a number of instances. In Octagon Process, Inc., ASBCA No. 2667, 59-1 BCA § 2270, where the Government had required replacement of an earthen cover, the Board said: “Nor do we consider that there is any evidence of a latent defect. The backbilling and compaction were done pursuant to standards established by the Government, under the constant surveillance of Government inspectors, and all apparently to the satisfaction of the Government. Under the circumstances we cannot classify the defects as hidden. “We conclude that there is no contractual requirement for appellant to return after acceptance and correct the work. T. F. Scholes [ASBCA No. 5270, 59-1 BCA § 2244, at pp. 9915-16].” The judgment of the court is Affirmed. . Only the existence of a latent defect would have justified the Navy’s order after completion, inspection and acceptance of the job. Paragraph 10 of the general provisions of the contract read: “10. INSPECTION AND ACCEPT AN OE # * * jfc * # “(f) Unless otherwise provided in this contract, acceptance by the Government shall be made as promptly as practicable after completion and inspection of all work required by this contract. Acceptance shall be final and conclusive except as regards latent defects, fraud, or such gross mistakes as may amount to fraud, or as regards the Government’s rights under any warranty or guarantee.” (Emphasis added) Question: Did the interpretation of state or local law, executive order, administrative regulation, doctrine, or rule of procedure by the court favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_treat	D	What follows is an opinion from a United States Court of Appeals. Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals. R.S. MARTIN, Jr., Plaintiff-Appellant, v. AMERCABLE CORP., A DIVISION OF ASSOCIATED MATERIALS, INC., Defendant-Appellee. No. 92-1864. United States Court of Appeals, Eighth Circuit. Submitted Dec. 14, 1992. Decided April 12, 1993. William Waddell, Little Rock, AR, argued for plaintiff-appellant. Jeffrey Hale Thomas, Little Rock, AR, argued for defendant-appellee. Before JOHN R. GIBSON and WOLLMAN, Circuit Judges, and BATTEY, District Judge. The HONORABLE RICHARD H. BATTEY, United States District Judge for the District of South Dakota, sitting by designation. JOHN R. GIBSON, Circuit Judge. R.S. Martin, Jr., appeals from a district court judgment denying his claim for money paid by Redken Laboratories to Amerca-ble Corporation for materials Amercable furnished to H.E.R. Manufacturing, Inc. Martin claims that he had a security interest in H.E.R.’s accounts receivable, and accordingly, should have received the Redken payment. We affirm the district court’s holding that Martin is not entitled to that portion of the Redken payment representing payment for materials, but reverse with respect to that portion of the payment representing the past-due amounts H.E.R. owed to Amercable. H.E.R. manufactures wave rods known as “Inspirods” used in giving permanent hair waves. Amercable supplies the cable used in manufacturing Inspirods, and H.E.R. completes production. From the beginning of its corporate existence, H.E.R. had financial difficulties and Martin, one of its original stockholders, extended loans to H.E.R. H.E.R. executed a promissory note to Martin in the amount of $300,000, secured by all accounts receivable, inventory, and other H.E.R. property. Martin perfected his security interest by filing U.C.C.-l documents in Jefferson County, Arkansas, and with the Arkansas Secretary of State. In the summer of 1988, the H.E.R. shareholders had a falling out. Martin filed suit against H.E.R. on August 15,1988, seeking judgment on the promissory note and foreclosure of his security interest. This ultimately led to judgment being entered, but not before H.E.R. filed a Chapter 11 petition, which was later dismissed. This controversy arises over a purchase order dated September 6, 1988, by Redken Laboratories for a quantity of Inspirods. H.E.R. was anxious to establish a relationship with Redken and needed approximately $19,000 worth of cable to fill the order. H.E.R. already owed Amercable $22,108.42 for cable that had been previously furnished. Amercable told H.E.R. that it would not provide any more cable unless H.E.R. paid cash for the new cable plus all past due amounts. H.E.R., Redken, and Amercable then worked out an arrangement whereby Redken paid $41,608 directly to Amercable, and Amercable supplied the cable to H.E.R. Martin claims that his lien on receivables entitled him to the Redken payment. The district court found that Martin had a valid security interest in the accounts receivable and inventory of H.E.R. Martin v. Amercable Corp., No. 89-1025, slip op. at 8 (W.D.Ark. Mar. 30, 1992). Nevertheless, the district court concluded that Martin was not entitled to the $41,608 Redken payment. Relying on Mid-Atlantic Supply v. Three Rivers Aluminum Co., 790 F.2d 1121 (4th Cir.1986), the district court concluded that Martin’s security interest never attached to the Redken payment and that the transaction “was in all material respects a sale of raw material by Amercable entirely on the credit of Redken.” Slip op. at 10. The court ruled that under these circumstances, Martin’s security interest in the accounts receivable did not attach to Redken’s payment. Id. The court reasoned that although Martin may have had a security interest in the cable after Amercable delivered it to H.E.R., his remedy was to foreclose the lien while the cable was in-H.E.R.’s possession, and that Martin had no interest in the cable after H.E.R. delivered the manufactured product to Redken. Id. The district court also rejected Martin’s claims that Amercable interfered in his contractual relationship with H.E.R. or conspired with H.E.R. to circumvent his lien. Id. The court also ruled that there was no basis for imposing a constructive trust or holding that the payment constituted a fraudulent conveyance or conversion of assets. Id. at 10-11. Martin appeals. In this diversity case, we review de novo the district court’s determinations of Arkansas law, giving its decision no deference. Salve Regina College v. Russell, 499 U.S. 225,-, 111 S.Ct. 1217, 1221, 113 L.Ed.2d 190 (1991). Martin first argues that the district court erred in holding that Amercable was entitled to the Redken payment because Martin had a perfected security interest in the money owed by Redken to H.E.R. Martin argues that the account was created on September 6, 1988, when the Redken purchase order was first issued. For support, Martin points to the U.C.C. which defines an “account” as “any right to payment for goods sold or leased or for services rendered ... whether or not it has been earned by performance.” Ark.Code Ann. § 4-9-106 (Michie 1991). Martin further argues that he is at least entitled to $22,-108.42, the past-due amounts H.E.R. owed to Amercable, and says that the district, court clearly erred in holding that this portion of the Redken payment was a sale of raw materials. Finally, Martin complains that if we affirm the district court’s decision regarding the $41,608 Redken payment, parties will be allowed to circumvent, and thus thwart, the protections contemplated by the U.C.C. In Mid-Atlantic, R.A. Lawson was a corporation hired to construct, a condominium project, and Mid-Atlantic was a subcontractor hired to obtain and install customized windows. 790 F.2d at 1123. The window supplier initially refused to supply the windows to Mid-Atlantic except on a cash basis, but then agreed to supply the windows under a joint check arrangement with Lawson and Mid-Atlantic. Id. Lawson issued a check payable jointly to the supplier and Mid-Atlantic. Id. Mid-Atlantic filed for Chapter 11 bankruptcy before the check was endorsed. Id. at 1123-24. The supplier sued the bankruptcy trustee to obtain the check. Id. at 1122. A bank claimed a prior perfected lien in Mid-Atlantic’s accounts receivable. Id. The Fourth Circuit held in the supplier’s favor, reasoning that the U.C.C. was not implicated. Id. at 1128. The court held that Mid-Atlantic had no interest in the check because the transaction was a sale made by the supplier to Lawson, as evidenced by the supplier’s extension of credit to Lawson and Lawson’s actual payment to the supplier. Id. Martin contends that Mid-Atlantic is distinguishable on a number of grounds, including the fact that only a portion of the $41,608 payment represented a purchase of raw materials. Martin points out that in Mid-Atlantic, the Fourth Circuit held that although the supplier was entitled to a portion of the joint check, it was not entitled to that portion of the check proceeds which actually related to a different project. 790 F.2d at 1128-29. We are persuaded that Martin is entitled to recover that portion of the Redken check ($22,-108.42) representing past due amounts that H.E.R. already owed to Amercable. This portion of the Redken payment did1 not represent payment for raw materials; rather, it represented payment on a debt owed by H.E.R. H.E.R.’s direction to Redken to pay this debt demonstrates H.E.R.’s “right to payment.” In contrast, H.E.R. ha,d no right to the balance of the Redken payment, as that amount represented Redken’s purchase of raw materials directly from Amercable. See Mid-Atlantic, 790 F.2d at 1128. Mid-Atlantic simply does not stretch as far as the district court applied it in covering these past-due amounts. Martin also contends- that Amercable’s conduct with respect to the $41,608 Redken check constituted a conversion of funds and a fraudulent conveyance. Martin also says that Amercable interfered with his contractual relations, and that the court should have imposed a constructive trust on the funds transferred to Amercable. On a related note, Martin claims that the district court erred in directing judgment in favor of Amercable on Martin’s claim for punitive damages. We have carefully considered and reject these arguments. We reverse and remand with directions that the district court enter judgment in Martin’s favor in the amount of $22,108.42. . Other facts, including H.E.R.’s attempt to repudiate Martin’s security interest and allegations of a conflict of interest, are not included in our discussion, as they are not relevant to the Uniform Commercial Code's applicability. . This decision does not damage the protections of the U.C.C. because Martin’s remedy under the U.C.C. was to foreclose his lien while the cable was in H.E.R.’s possession, a step he apparently did not take. 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_respond1_1_4	J	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "unclear". Your task is to determine what subcategory of business best describes this litigant. PENNSYLVANIA CO. FOR INSURANCES ON LIVES AND GRANTING ANNUITIES et al. v. PHILADELPHIA INQUIRER CO. Circuit Court of Appeals, Third Circuit. March 5, 1928. No. 3709. 1. Landlord and tenant <§=>81 (2) — On consolidation of lessee and owner of fee terminating lease, mortgagee of leasehold held not entitled, under after-acquired property clause, to enforce lien against leased property which owner of fee had previously agreed to sell. Mortgagee of leasojbold under mortgage containing after-acquired property clause held, not entitled, on consolidation of lessee and owner of fee to terminate lease, to enforce lien of mortgage against leased property which owner of fee had previously agreed to sell, where purchaser’s first proven knowledge of mortgage was after contract to purchase and before consolidation, since purchaser under Pennsylvania law obtained complete equitable title at time sale contract was signed, subject only to vendor’s right to receive balance of purchase money. 2. Courts <§=>367(3) — Questions relating to title to land are determined by law of state . where land is situated. Whore real estate owned by Delaware corporations is located in Pennsylvania, all questions relating to its title in general and to equitable estate acquired by contract of purchase in particular are determined by law of Pennsylvania. 3. Courts <§=>367(3) — In determining questions relative to title to land, federal courts must follow rules of courts of state where land is situated. In determining questions relating to title to land and particularly to equitable estate acquired by contract of purchase, federal court must follow rules established by highest court of state in which land is situated. 4. Appeal and error <§=>984(2) — Reference <§=> 76(1) — Fixation and allowance of master’s compensation is within trial court’s discretion. Fixation and allowance of compensation for master is within discretion of trial judge, whose determination will not be disturbed in absence of abuse of such discretion. Appeal from the District Court of the United States for the' Eastern District of Pennsylvania; J. Whitaker Thompson, Judge. Suit by the Pennsylvania Company for Insurances on Lives and Granting Annuities and another against the Philadelphia Inquirer Company. Decree for defendant, and plaintiffs appeal. Affirmed. Francis H. Bohlen, Jr., and Saul, Ewing, Remick & Saul, all of Philadelphia, Pa., and Chapman & Cutler, of Chicago, Ill., for appellants. Percival H. Granger and Reber, Granger & Montgomery, all of Philadelphia, Pa., for receivers. Boyd Lee Spahr and Ballard, Spahr, Andrews & Ingersoll, all of Philadelphia, Pa., for appellee. Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges, WOOLLEY, Circuit Judge. This suit was instituted in the District Court by a bill to foreclose a mortgage issued to seeure corporate bonds. The case arose out of a contract of sale of real property and concerns the claimed lien of the mortgage, containing an after-acquired property clause, on property of a constituent corporation 'after > its consolidation with the mortgagor corporation, and the claim that the lien, if it exists, is good against the property in the hands of the purchaser whose agreement to purchase was entered into prior to the consolidation and whose first proven knowledge of the mortgage was after the contract of purchase and before the consolidation. The ease is more difficult to state than to* decide. That is because of corporate devolutions of which the following outline may be sufficient. (1) Hoopes and Brother, Inc., originally; owned the property in question. (2) Hoopes and Brother, Inc., leased the premises to Hoopes & Townsend Steel Company, referred to throughout the litigation as the “old” Hoopes & Townsend Steel' Company. The lease provided, inter alia, that the lessee might mortgage its leasehold interest; subject to the rights of the lessor under the lease, and further the lessor might sell the leased property to the Hoopes and Townsend Company (another corporation) and assign the lease to that company, and that in the event of such a sale and assignment and the further event of a merger of Hoopes and Townsend Company with the old Hoopes & Townsend Steel Company, the lease should ipso facto terminate. (3) Pursuant to this authority the old Hoopes & Townsend Steel Company executed a mortgage to the Pennsylvania Company for Insurances on Lives and Granting Annuities and George M. Clarke, trustees, the present appellants, covering several properties including the leasehold on the property in question. (4) Hoopes and Brother, Inc., the lessor, still holding the title to the property, then conveyed the premises to the Hoopes and Townsend Company in fee subject to the lease and also assigned all its interest in the lease to that company. (5) Hoopes and Townsend Company, then owning the title and standing in the relation of lessor of the premises, entered into a written contract of sale of the premises, clear of liens and encumbrances, to the Philadelphia Inquirer Company, with the lease to the old Hoopes & Townsend Steel Company in force. The purchase price was $190,000 of which $25,000 was paid on account at the time of signing the contract and the balance was payable at the settlement sixty days thereafter. (6) The deed was executed within that period but was withheld from actual or manual delivery to the purchaser by reason of the outstanding lease which before a title company would pass and guarantee a fee simple unencumbered title had to be gotten rid of. (7) Hoopes and Townsend Company, still owner and potential lessor of the property, joined with the old Hoopes & Townsend Steel Company, lessee, in an agreement formally canceling and terminating the lease; and the Penn National Bank as trustee under a prior mortgage, thought to be the only lienor, released the premises from the lien of its mortgage. (8) Doubtless fearing that this was not enough, the Hoopes and Townsend 'Company and the old Hoopes & Townsend Steel Company then merged by appropriate proceedings of consolidation, the new company bearing the old title of Hoopes & Townsend Steel Company, thereafter called the “new” Hoopes & Townsend Steel Company. (9) The effect of the consolidation of the corporation which held the title to the premises and stood as lessor with the lessee corporation which had mortgaged the leasehold was, under the express terms of the lease, ipso facto to work its termination. (10) With the lease out of the way and believing that all liens had been released, the title company passed the title and delivered to the vendee the vendor’s deed which had been previously delivered to it pending the search of the title and the vendee paid the vendor the balance of the purchase price. The Pennsylvania Company and its co-trustee, the appellants, do not challenge the termination of the lease thus brought about but say that the mortgage given them by the old Hoopes & Townsend Steel Company containing an after-acquired property elause spread on the consolidation of that company with the Hoopes and Townsend Company to the property of the latter company (which includes, inter alia, the property in question) and that in consequence the lien of their mortgage attached to and now rests on the property it had previously contracted to sell and later conveyed to the Philadelphia Inquirer Company, the appellee. The case was referred to a master who, on facts largely stipulated and otherwise orally proved, discussed and applied the law of after-acquired property clauses and found that the mortgage to the Pennsylvania Company and Clarke does not constitute a valid and subsisting lien on the premises. The District Court, on exceptions, affirmed the report of the master and entered a decree dismissing the bill. Whereupon the plaintiffs took this appeal. While the law of after-acquired property clauses as they affect the property of constituent companies on consolidation is as the master stated, we recognize enough in the mortgage in suit to raise a question, fairly debatable, whether the peculiar terms of the mortgage take it outside the general law of the subject. Though we incline to the view of the master and the trial court, our opinion is that the whole subject was cut under and displaced by a legal situation which arose before th© consolidation and therefore before the after-aequired property clause could operate and that rendered the property in question not capable of being after-acquired and therefore not an object to which the lien of the mortgage could under its after-acquired property clause attach. This is the interest which the appellee-vendee acquired in the property not on final delivery of the deed after consolidation but on entering into the contract of purchase and on making part payment of the purchase price before consolidation. Looking at that, interest generally, any court would say it was an equitable estate; but because of different ways courts in different jurisdictions have viewed, such estates and the different qualities they have attributed to them, it would hesitate to express an opinion on the precise character of this equitable estate in relation to the rights of the vendor and vendee and to rights of lien creditors without looking at the law of the place where the property is situated. While the Hoopes and Townsend Company, the old Hoopes & Townsend Steel Company and the consolidated new Hoopes & Townsend Steel Company are all Delaware corporations, the real estate iin question is located in Philadelphia and a court would know that all questions relating to its title in general and to the equitable estate acquired by contract of purchase in particular are to be determined by the law of Pennsylvania. .But a federal court would also know that it is bound to follow those rules which have been established by the highest court of that state with respect to real property within its borders. De Vaughn v. Hutchison, 165 U. S. 566, 17 S. Ct. 461, 41 L. Ed. 827; Von Baumbach v. Sargent Land Co., 242 U. S. 503, 518, 37 S. Ct. 201, 61 L. Ed. 460; Rosenberger v. McCaughn (C. C. A.) 25 F.(2d) 699. And so this court looks to the real property law of Pennsylvania for guidance. Fortunately, the courts of that state when defining and measuring an equitable estate acquired by contract of purchase have left nothing in doubt. Indeed, the Pennsylvania law is the broadest and clearest law on the subject that has come to our notice. By a line) of decisions extending through a century, it has been uniformly held that on the execution of an agreement of sale, the purchaser becomes vested with a complete equitable title to the property. Richter v. Selin, 8 Serg. & R. 425 (1822). In the most recent case on the subject, that of Spratt v. Greenfield, 279 Pa. 437 (1924) 124 A. 126, the Supreme Court of Pennsylvania defined that estate by saying that: “The purchaser to all intents and purposes becomes the owner of the land; the vendor retaining title merely as trustee to seeure payment of the unpaid purchase money. * * * So much is the vendee considered, in contemplation of equity, as actually seized of the estate, that he must bear any loss which may happen to the estate between the agreement and the conveyance, and he will be entitled to any benefit which may accrue to it in the interval, because by the contract he is owner of the premises to every intent and purpose in equity.” In the intermediate case of Millville Mutual Fire Insurance Co. v. Wilgus, 88 Pa. 107 (1878), the court said: “The plaintiff’s title was an equitable one, but it nevertheless vested in him the entire unconditional and sole ownership, subject to the payment of the balance of the purchase money. This balance was practically an encumbrance. It is true the legal title was in the vendors, but they could use it only to enforce the payment of the price agreed upon.” Pennsylvania courts have consistently applied this principle to a great variety of cases arising under articles, of sale. The purchaser has, as always, the right to specific performance. He has an insurable interest in the property on which he can recover in ease of fire. Millville Mutual Fire Insurance Co. v. Wilgus, supra. Moreover, the estate of the vendee is not affected by a judgment obtained against the vendor subsequent to the signing of the contract of purchase and prior to the delivery of the deed. Gratz v. Ewalt, 2 Bin. 95 (1809). In such case a levy under the judgment cannot be made on the land but only on the unpaid purchase prie,e which is the vendor’s only interest. Fasholt v. Reed, 16 Serg. & R. 266 (1827); Patterson’s Estate, 25 Pa. (1 Casey) 71 (1855); McCleery v. Stoup, 32 Pa. Super. Ct. 42 (1906). From these authorities it is dear that by force of the contract of purchase in this case the complete equitable title to the premises passed from the Hoopes and Townsend Company to the Philadelphia Inquirer Company at the time the contract was signed subject only to the right of the vendor or its successor to demand and receive the balance of the purchase money. In the light of this law we are not concerned with the question repeatedly raised and vigorously contested — whether the delivery of the deed by the vendor to the title company pending the title search before consolidation was in eserow or a formal delivery to the vendee' through the title company as its agent, and whether, accordingly, the after-acquired property clause of the mortgage operated or did not operate, for the vendee’s rights were established not by the delivery of the deed or by the legal character of the delivery but by its contract of purchase and by the estate which local law accorded the purchaser on its execution. True, the legal title to the property remained in the vendor with the right to demand and receive the balance of the purchase price and we hold that that right is all that could and did pass on merger to the consolidated corporation. At the time of the consolidation neither the old Hoopes & Townsend Steel Company nor its mortgagees, the present appellants, had any interest whatever in the property which the Hoopes and Townsend Company, the vendor, had sold, except momentarily under the lease which the merger automatically terminated. As the consolidated corporation did not acquire any interest in the property which, Hoopes and Townsend Company had sold before the consolidation, the after-acquired property clause of the mortgage' of the old Hoopes & Townsend Steel Company could not leap back and become a lien upon property which before consolidation the Hoopes and Townsend Company had parted with. When the consolidation was effected, the property of the Hoopes and Townsend Company, one of the constituents, had gone and, as in the case of a judgment against the vendor, there was nothing on which the mortgage of the Hoopes & Townsend Steel Company could become á lien under Pennsylvania law. The legal title, as we have said, remained in the former company with the right to receive the balance of the purchase money, but, again under Pennsylvania law, it held the title solely as trustee for the Philadelphia Inquirer Company with the duty to hand it over when that company paid what remained due of the purchase money. That being the law, we are not presently concerned with what the consolidated company did with the balance of the purchase money when it got it or what thereafter were the rights of any one else in respect to it, because in this suit we are only concerned with the right of the trustees under the old Hoopes & Townsend Steel Company mortgage to assert a lien of that mortgage on property which the Hoopes and Townsend Company had parted with before the consolidation and the right of the trustees to recover by bill of foreclosure on sueh a lien against the purchaser, the Philadelphia Inquirer Company. We subscribe to the finding of the master and the District Court that the mortgage given by the old Hoopes & Townsend Steel Company to the Pennsylvania Company and Clarke does not by reason of its after-acquired property clause constitute a valid and subsisting lien on the premises in question. The only other matter that calls for discussion is raised by the assignment which charges error to the court in affirming that part of the master’s report which names his fee and in assessing the costs of the reference to the appellants. The appellants say the fee is excessive. •The character of the service is a matter in respeet to which the learned District Judge had peculiar knowledge. The master’s labors, doubtless, are not to be measured alone by the size of the record, which in itself is substantial. Moreover, the case called for and received attention of a kind that can best be' obtained from one skilled and experienced in judicial work. The fixation and allowance of compensation for such a service is a matter properly within the discretion of the trial judge who knows the ease and can appraise the work of his master much better than an appellate court on a cold review of the printed record. As we have not found that the learned trial judge abused his discretion, we are constrained, in the orderly administration of justice, not to disturb his action. The decree of the District Court is in all respects affirmed. Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "unclear". What subcategory of business best describes this litigant? A. auto industry B. chemical industry C. drug industry D. food industry E. oil & gas industry F. clothing & textile industry G. electronic industry H. alcohol and tobacco industry I. other J. unclear Answer:
sc_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. UNITED STATES v. BYRUM, EXECUTRIX No. 71-308. Argued March 1, 1972 Decided June 26, 1972 Powell, J., delivered the opinion of the Court, in which BuRGer, C. J., and Douglas, Stewart, Marshall, and RehNQUist, JJ., joined. White, J., filed a dissenting opinion, in which BrenNAN and BlacicmuN, JJ., joined, -post, p. 151. Matthew J. Zinn argued the cause for the United States. With him on the briefs were Solicitor General Griswold, Assistant Attorney General Crampton, Loring W. Post, and Donald H. Olson. Larry H. Snyder argued the cause and filed a brief for respondent. Simon H. Rif kind, Adrian W. DeWind, James B. Lewis, and Maurice Austin filed a brief for Gilman et al., Executors, as amici curiae urging affirmance. Mr. Justice Powell delivered the opinion of the Court. Decedent, Milliken C. Byrum, created in 1958 an irrevocable trust to which he transferred shares of stock in three closely held corporations. Prior to transfer, he owned at least 71% of the outstanding stock of each corporation. The beneficiaries were his children or, in the event of their death before the termination of the trust, their surviving children. The trust instrument specified that there be a corporate trustee. Byrum designated as sole trustee an independent corporation, Huntington National Bank. The trust agreement vested in the trustee broad and detailed powers with respect to the control and management of the trust property. These powers were exercisable in the trustee’s sole discretion, subject to certain rights reserved by Byrum: (i) to vote the shares of unlisted stock held in the trust estate; (ii) to disapprove the sale or transfer of any trust assets, including the shares transferred to the trust; (iii) to approve investments and reinvestments; and (iv) to remove the trustee and “designate another corporate Trustee to serve as successor.” Until the youngest living child reached age 21, the trustee was authorized in its “absolute and sole discretion” to pay the income and principal of the trust to or for the benefit of the beneficiaries, “with due regard to their individual needs for education, care, maintenance and support.” After the youngest child reached 21, the trust was to be divided into a separate trust for each child, to terminate when the beneficiaries reached 35. The trustee was authorized in its discretion to pay income and principal from these trusts to the beneficiaries for emergency or other “worthy need,” including education. When he died in 1964, Byrum owned less than 60% of the common stock in two of the corporations and 59% in the third. The trust had retained the shares transferred to it, with the result that Byrum had continued to have the right to vote not less than 71% of the common stock in each of the three corporations. There were minority stockholders, unrelated to Byrum, in each corporation. Following Byrum’s death, the Commissioner of Internal Revenue determined that the transferred stock was properly included within Byrum’s gross estate under § 2036 (a) of the Internal Revenue Code of 1954, 26 U. S. C. §2036 (a). That section provides for the inclusion in a decedent’s gross estate of all property which the decedent has transferred by inter vivos transaction, if he has retained for his lifetime “(1) the possession or enjoyment of, or the right to the income from, the property” transferred, or “(2) the right, either alone or in conjunction with any person, to designate the persons who shall possess or enjoy the property or the income therefrom.” The Commissioner determined that the stock transferred into the trust should be included in Byrum’s gross estate because of the rights reserved by him in the trust agreement. It was asserted that his right to vote the transferred shares and to veto any sale thereof by the trustee, together with the ownership of other shares, enabled Byrum to retain the “enjoyment of... the property,” and also allowed him to determine the flow of income to the trust and thereby “designate the persons who shall... enjoy... the income.” The executrix of Byrum’s estate paid an additional tax of $13,202.45, and thereafter brought this refund action in District Court. The facts not being in dispute, the court ruled for the executrix on cross motions for summary judgment. 311 F. Supp. 892 (SD Ohio 1970). The Court of Appeals affirmed, one judge dissenting. 440 F. 2d 949 (CA6 1971). We granted the Government’s petition for certiorari. 404 U. S. 937 (1971). I The Government relies primarily on its claim, made under §2036 (a)(2), that Byrum retained the right to designate the persons who shall enjoy the income from the transferred property. The argument is a complicated one. By retaining voting control over the corporations whose stock was transferred, Byrum was in a position to select the corporate directors. He could retain this position by not selling the shares he owned and by vetoing any sale by the trustee of the transferred shares. These rights, it is said, gave him control over corporate dividend policy. By increasing, decreasing, or stopping dividends completely, it is argued that Byrum could “regulate the flow of income to the trust” and thereby shift or defer the beneficial enjoyment of trust income between the present beneficiaries and the re-maindermen. The sum of this retained power is said to be tantamount to a grantor-trustee’s power to accumulate income in the trust, which this Court has recognized constitutes the power to designate the persons who shall enjoy the income from transferred property. At the outset we observe that this Court has never held that trust property must be included in a settlor’s gross estate solely because the settlor retained the power to manage trust assets. On the contrary, since our decision in Reinecke v. Northern Trust Co., 278 U. S. 339 (1929), it has been recognized that a settlor’s retention of broad powers of management does not necessarily subject an inter vivos trust to the federal estate tax. Although there was no statutory analogue to § 2036 (a)(2) when Northern Trust was decided, several lower court decisions decided after the enactment of the predecessor of § 2036 (a)(2) have upheld the settlor’s right to exercise managerial powers without incurring estate-tax liability. In Estate of King v. Commissioner, 37 T. C. 973 (1962), a settlor reserved the power to direct the trustee in the management and investment of trust assets. The Government argued that the settlor was thereby empowered to cause investments to be made in such a manner as to control significantly the flow of income into the trust. The Tax Court rejected this argument, and held for the taxpayer. Although the court recognized that the settlor had reserved “wide latitude in the exercise of his discretion as to the types of investments to be made,” id., at 980, it did not find this control over the flow of income to be equivalent to the power to designate who shall enjoy the income from the transferred property. Essentially the power retained by Byrum is the same managerial power retained by the settlors in Northern Trust and in King. Although neither case controls this one — Northern Trust, because it was not decided under §2036 (a)(2) or a predecessor; and King, because it is a lower court opinion — the existence of such precedents carries weight. The holding of Northern Trust, that the settlor of a trust may retain broad powers of management without adverse estate-tax consequences, may have been relied upon in the drafting of hundreds of inter vivos trusts. The modification of this principle now sought by the Government could have a seriously adverse impact, especially upon settlors (and their estates) who happen to have been “controlling” stockholders of a closely held corporation. Courts properly have been reluctant to depart from an interpretation of tax law which has been generally accepted when the departure could have potentially far-reaching consequences. When a principle of taxation requires reexamination, Congress is better equipped than a court to define precisely the type of conduct which results in tax consequences. When courts readily undertake such tasks, taxpayers may not rely with assurance on what appear to be established rules lest they be subsequently overturned. Legislative enactments, on the other hand, although not always free from ambiguity, at least afford the taxpayers advance warning. The Government argues, however, that our opinion in United States v. O’Malley, 383 U. S. 627 (1966), compels the inclusion in Byrum’s estate of the stock owned by the trust. In O’Malley, the settlor of an inter vivos trust named himself as one of the three trustees. The trust agreement authorized the trustees to pay income to the life beneficiary or to accumulate it as a part of the principal of the trust in their “sole discretion.” The agreement further provided that net income retained by the trustees, and not distributed in any calendar year, “'shall become a part of the principal of the Trust Estate.’ ” Id., at 629 n. 2. The Court characterized the effect of the trust as follows: “Here Fabrice [the settlor] was empowered, with the other trustees, to distribute the trust income to the income beneficiaries or to accumulate it and add it to the principal, thereby denying to the beneficiaries the privilege of immediate enjoyment and conditioning their eventual enjoyment upon surviving the termination of the trust.” Id., at 631. As the retention of this legal right by the settlor, acting as a trustee “in conjunction” with the other trustees, came squarely within the language and intent of the predecessor of § 2036 (a)(2), the taxpayer conceded that the original assets transferred into the trust were in-cludable in the decedent’s gross estate. Id., at 632. The issue before the Court was whether the accumulated income, which had been added to the principal pursuant to the reservation of right in that respect, was also in-cludable in decedent’s estate for tax purposes. The Court held that it was. In our view, and for the purposes of this case, O’Malley adds nothing to the statute itself. The facts in that case were clearly within the ambit of what is now § 2036 (a). That section requires that the settlor must have “retained for his life... (2) the right... to designate the persons who shall possess or enjoy the property or the income therefrom.” O’Malley was covered precisely by the statute for two reasons: (1) there the settlor had reserved a legal right, set forth in the trust instrument; and (2) this right expressly authorized the settlor, “in conjunction” with others, to accumulate income and thereby “to designate” the persons to enjoy it. It must be conceded that Byrum reserved no such “right” in the trust instrument or otherwise. The term “right,” certainly when used in a tax statute, must be given its normal and customary meaning. It connotes an ascertainable and legally enforceable power, such as that involved in O’Malley. Here, the right ascribed to Byrum was the power to use his majority position and influence over the corporate directors to “regulate the flow of dividends” to the trust. That “right” was neither ascertainable nor legally enforceable and hence was not a right in any normal sense of that term. Byrum did retain the legal right to vote shares held by the trust and to veto investments and reinvestments. But the corporate trustee alone, not Byrum, had the right to pay out or withhold income and thereby to designate who among the beneficiaries enjoyed such income. Whatever power Byrum may have possessed with respect to the flow of income into the trust was derived not from an enforceable legal right specified in the trust instrument, but from the fact that he could elect a majority of the directors of the three corporations. The power to elect the directors conferred no legal right to command them to pay or not to pay dividends. A majority shareholder has a fiduciary duty not to misuse his power by promoting his personal interests at the expense of corporate interests. Moreover, the directors also have a fiduciary duty to promote the interests of the corporation. However great Byrum’s influence may have been with the corporate directors, their responsibilities were to all stockholders and were enforceable according to legal standards entirely unrelated to the needs of the trust or to Byrum’s desires with respect thereto. The Government seeks to equate the de facto position of a controlling stockholder with the legally enforceable “right” specified by the statute. Retention of corporate control (through the right to vote the shares) is said to be “tantamount to the power to accumulate income” in the trust which resulted in estate-tax consequences in O’Malley. The Government goes on to assert that “[tjhrough exercise of that retained power, [Byrum] could increase or decrease corporate dividends... and thereby shift or defer the beneficial enjoyment of trust income.” This approach seems to us not only to depart from the specific statutory language, but also to misconceive the realities of corporate life. There is no reason to suppose that the three corporations controlled by Byrum were other than typical small businesses. The customary vicissitudes of such enterprises — bad years; product obsolescence; new competition; disastrous litigation; new, inhibiting Government regulations; even bankruptcy — prevent any certainty or predictability as to earnings or dividends. There is no assurance that a small corporation will have a flow of net earnings or that income earned will in fact be available for dividends. Thus, Byrum’s alleged de jacto “power to control the flow of dividends” to the trust was subject to business and economic variables over which he had little or no control. Even where there are corporate earnings, the legal power to declare dividends is vested solely in the corporate board. In making decisions with respect to dividends, the board must consider a number of factors. It must balance the expectation of stockholders to reasonable dividends when earned against corporate needs for retention of earnings. The first responsibility of the board is to safeguard corporate financial viability for the long term. This means, among other things, the retention of sufficient earnings to assure adequate working capital as well as resources for retirement of debt, for replacement and modernization of plant and equipment, and for growth and expansion. The nature of a corporation’s business, as well as the policies and long-range plans of management, are also relevant to dividend payment decisions. Directors of a closely held, small corporation must bear in mind the relatively limited access of such an enterprise to capital markets. This may require a more conservative policy with respect to dividends than would be expected of an established corporation with securities listed on national exchanges. Nor do small corporations have the flexibility or the opportunity available to national concerns in the utilization of retained earnings. When earnings are substantial, a decision not to pay dividends may result only in the accumulation of surplus rather than growth through internal or external expansion. The accumulated earnings may result in the imposition of a penalty tax. These various economic considerations are ignored at the directors’ peril. Although vested with broad discretion in determining whether, when, and what amount of dividends shall be paid, that discretion is subject to legal restraints. If, in obedience to the will of the majority stockholder, corporate directors disregard the interests of shareholders by accumulating earnings to an unreasonable extent, they are vulnerable to a derivative suit. They are similarly vulnerable if they make an unlawful payment of dividends in the absence of net earnings or available surplus, or if they fail to exercise the requisite degree of care in discharging their duty to act only in the best interest of the corporation and its stockholders. Byrum was similarly inhibited by a fiduciary duty from abusing his position as majority shareholder for personal or family advantage to the detriment of the corporation or other stockholders. There were a substantial number of minority stockholders in these corporations who were unrelated to Byrum. Had Byrum and the directors violated their duties, the minority shareholders would have had a cause of action under Ohio law. The Huntington National Bank, as trustee, was one of the minority stockholders, and it had both the right and the duty to hold Byrum responsible for any wrongful or negligent action as a controlling stockholder or as a director of the corporations. Although Byrum had reserved the right to remove the trustee, he would have been imprudent to do this when confronted by the trustee’s complaint against his conduct. A successor trustee would succeed to the rights of the one removed. We conclude that Byrum did not have an unconstrained de facto power to regulate the flow of dividends to the trust, much less the ‘‘right” to designate who was to enjoy the income from trust property. His ability to affect, but not control, trust income, was a qualitatively different power from that of the settlor in O’Malley, who had a specific and enforceable right to control the income paid to the beneficiaries. Even had Byrum managed to flood the trust with income, he had no way of compelling the trustee to pay it out rather than accumulate it. Nor could he prevent the trustee from making payments from other trust assets, although admittedly there were few of these at the time of Byrum’s death. We cannot assume, however, that no other assets would come into the trust from reinvestments or other gifts. We find no merit to the Government’s contention that Byrum’s de facto “control,” subject as it was to the economic and legal constraints set forth above, was tantamount to the right to designate the persons who shall enjoy trust income, specified by § 2036 (a)(2). II The Government asserts an alternative ground for including the shares transferred to the trust within Byrum’s gross estate. It argues that by retaining control, Byrum guaranteed himself continued employment and remuneration, as well as the right to determine whether and when the corporations would be liquidated or merged. Byrum is thus said to have retained “the... enjoyment of... the property” making it includable within his gross estate under §2036 (a)(1). The Government concedes that the retention of the voting rights of an “unimportant minority interest” would not require inclusion of the transferred shares under § 2036 (a)(1). It argues, however, “where the cumulative effect of the retained powers and the rights flowing from the shares not placed in trust leaves the grantor in control of a close corporation, and assures that control for his lifetime, he has retained the 'enjoyment’ of the transferred stock.” Brief for United States 23. It is well settled that the terms “enjoy” and “enjoyment,” as used in various estate tax statutes, “are not terms of art, but connote substantial present economic benefit rather than technical vesting of title or estates.” Commissioner v. Estate of Holmes, 326 U. S. 480, 486 (1946). For example, in Reinecke v. Northern Trust Co., 278 U. S. 339 (1929), in which the critical inquiry was whether the decedent had created a trust “intended... ‘to take effect in possession or enjoyment at or after his death,’ ” id., at 348, the Court held that reserved powers of management of trust assets, similar to Byrum’s power over the three corporations, did not subject an inter vivos trust to the federal estate tax. In determining whether the settlor had retained the enjoyment of the transferred property, the Court said: “Nor did the reserved powers of management of the trusts save to decedent any control over the economic benefits or the enjoyment of the property. He would equally have reserved all these powers and others had he made himself the trustee, but the transfer would not for that reason have been incomplete. The shifting of the economic interest in the trust property which was the subject of the tax was thus complete as soon as the trust was made. His power.to recall the property and of control over it for his own benefit then ceased and as the trusts were not made in contemplation of death, the reserved powers do not serve to distinguish them from any other gift inter vivos not subject to the tax.” 278 U. S., at 346-347. The cases cited by the Government reveal that the terms “possession” and “enjoyment,” used in § 2036 (a) (1), were used to deal with situations in which the owner of property divested himself of title but retained an income interest or, in the case of real property, the lifetime use of the property. Mr. Justice Black’s opinion for the Court in Commissioner v. Estate of Church, 335 U. S. 632 (1949), traces the history of the concept. In none of the cases cited by the Government has a court held that a person has retained possession or enjoyment of the property if he has transferred title irrevocably, made complete delivery of the property and relinquished the right to income where the property is income producing. The Government cites only one case, Estate of Holland v. Commissioner, 1 T. C. 564 (1943), in which a decedent had retained the right to vote transferred shares of stock and in which the stock was included within the decedent’s gross estate. In that case, it was not the mere power to vote the stock, giving the decedent control of the corporation, which caused the Tax Court to include the shares. The court held that “ 'on an inclusive view of the whole arrangement, this withholding of the income until decedent’s death, coupled with the retention of the certificates under the pledge and the reservation of the right to vote the stock and to designate the company officers’ ” subjects the stock to inclusion within the gross estate. Id., at 565. The settlor in Holland retained a considerably greater interest than Byrum retained, including an income interest. As the Government concedes, the mere retention of the right-to-vote shares does not constitute the type of “enjoyment” in the property itself contemplated by § 2036 (a)(1). In addition to being against the weight of precedent, the Government’s argument that Byrum retained “enjoyment” within the meaning of § 2036 (a)(1) is conceptually unsound. This argument implies, as it must under the express language of § 2036 (a), that Byrum “retained for his life... (1) the possession or enjoyment” of the “property” transferred to the trust or the “income” therefrom. The only property he transferred was corporate stock. He did not transfer “control” (in the sense used by the Government) as the trust never owned as much as 50% of the stock of any corporation. Byrum never divested himself of control, as he was able to vote a majority of the shares by virtue of what he owned and the right to vote those placed in the trust. Indeed, at the time of his death he still owned a majority of the shares in the largest of the corporations and probably would have exercised control of the other two by virtue of being a large stockholder in each. The statutory language plainly contemplates retention of an attribute of the property transferred — such as a right to income, use of the property itself, or a power of appointment with respect either to income or principal. Even if Byrum had transferred a majority of the stock, but had retained voting control, he would not have retained “substantial present economic benefit,” 326 U. S., at 486. The Government points to the retention of two “benefits.” The first of these, the power to liquidate or merge, is not a present benefit; rather, it is a speculative and contingent benefit which may or may not be realized. Nor is the probability of continued employment and compensation the substantial “enjoyment of... [the transferred] property” within the meaning of the statute. The dominant stockholder in a closely held corporation,.if he is active and productive, is likely to hold a senior position and to enjoy the advantage of a significant voice in his own compensation. These are inevitable facts of the free-enterprise system, but the influence and capability of a controlling stockholder to favor himself are not without constraints. Where there are minority stockholders, as in this case, directors may be held accountable if their employment, compensation, and retention of officers violate their duty to act reasonably in the best interest of the corporation and all of its stockholders. Moreover, this duty is policed, albeit indirectly, by the Internal Revenue Service, which disallows the deduction of unreasonable compensation paid to a corporate executive as a business expense. We conclude that Byrum’s retention of voting control was not the retention of the enjoyment of the transferred property within the meaning of the statute. For the reasons set forth above, we hold that this case was correctly decided by the Court of Appeals and accordingly the judgment is Affirmed. The Trust Agreement in pertinent part provided: “Article IV. Irrevocable Trust. “This Trust shall be irrevocable and Grantor reserves no rights, powers, privileges or benefits either as to the Trust estate or the control or management of the trust property, except as set forth herein. “Article V. Powers Of The Trustee. “The Trustee shall have and possess and may exercise at all times not only the rights, powers and authorities incident to the office or required in the discharge of this trust, or impliedly conferred upon or vested in it, but there is hereby expressly conferred upon and vested in the Trustee all the rights, powers and authorities embodied in the following paragraphs in this Article, which are shown by way of illustration but not by way of limitation: “Sell. 5.02 To sell at public or private sale, to grant options to sell, to exchange, re-exchange or otherwise dispose of all or part of the property, real or personal, at any time belonging to the Trust Estate, upon such terms and conditions and for such consideration as said Trustee shall determine, and to execute and deliver all instruments of sale or conveyance necessary or desirable therefor. “Investments. 5.05 To invest any money in the Trust Estate in stocks, bonds, investment trusts, common trust funds and any other securities or property, real or personal, secured or unsecured, whether the obligations of individuals, corporations, trusts, associations, governments, expressly including shares and/or obligations of its own corporation, or otherwise, either within or outside of the State of Ohio, as the Trustee shall deem advisable, without any limitation whatsoever as to the character of investment under any statute or rule of law now or hereafter enacted or existing regarding trust funds or investments by fiduciaries or otherwise. “Voting. 5.06 To vote by proxy or in person any stock or security comprising a part of the Trust Estate, at any meeting, except that, during Grantor’s lifetime, all voting rights of any stocks which are not listed on a stock exchange, shall be exercised by Grantor, and after Grantor’s death, the voting rights of such stocks shall be exercised by Grantor’s wife during her lifetime. “Leases. 5.09 To make leases for any length of time, whether longer or shorter than the duration of this Trust, to commence at the present time or in the future; to extend any lease; to grant options to lease or to renew any lease; it being expressly understood that the Trustee may grant or enter into ninety-nine year leases, renewable forever. “Income Allocation. 5.13 To determine in its discretion how all receipts and disbursements, capital gains and losses, shall be charged, credited or apportioned between income and principal. “Limitation. 5.15 Notwithstanding the powers of the Trustee granted in paragraphs 5.02, 5.05, 5.09 and 5.11 above, the Trustee shall not exercise any of the powers granted in said paragraphs unless (a) during Grantor’s lifetime said Grantor shall approve of the action taken by the Trustee pursuant to said powers, (b) after the death of the Grantor and as long as his wife, Marian A. Byrum, shall live, said wife shall approve of the action taken by the Trustee pursuant to said powers. “Article VI. Distribution Prior To Age 21. “Until my youngest living child reaches the age of twenty-one (21) years, the Trustee shall exercise absolute and sole discretion in paying or applying income and/or principal of the Trust to or for the benefit of Grantor’s child or children and their issue, with due regard to their individual needs for education, care, maintenance and support and not necessarily in equal shares, per stirpes. The decision of the Trustee in the dispensing of Trust funds for such purposes shall be final and binding on all interested persons. “Article VI. Division At Age 21. “Principal Disbursements. 6.02 If prior to attaining the age of thirty-five (35), any one of the children of Grantor shall have an emergency such as an extended illness requiring unusual medical or hospital expenses, or any other worthy need including education of such child, the Trustee is hereby authorized and empowered to pay such child or use for his or her benefit such amounts of income and principal of the Trust as the Trustee in its sole judgment and discretion shall determine. “Article VIII. Removal of Trustee. “If the Trustee, The Huntington National Bank of Columbus, Columbus, Ohio, shall at any time change its name or combine with one or more corporations under one or more different names, or if its assets and business at any time shall be purchased and absorbed by another trust company or corporation authorized by law to accept these trusts, the new or successor corporation shall be considered as the said The Huntington National Bank of Columbus, Ohio, and shall continue said Trusts and succeed to all the rights, privileges, duties and obligations herein conferred upon said The Huntington National Bank of Columbus, Columbus, Ohio, Trustee. “Grantor, prior to his death, and after the death of the Grantor, the Grantor’s wife, Marian A. Byrum, during her lifetime, may remove or cause the removal of The Huntington National Bank of Columbus, Ohio, or any successor Trustee, as Trustee under the Trusts and may thereupon designate another corporate Trustee to serve as successor Trustee hereunder. “Article IX. Miscellaneous Provisions. “Discretion. 9.02 If in the opinion of the Trustee it shall appear that the total income of any beneficiary of any Trust fund created hereunder is insufficient for his or her proper or suitable support, care and comfort, and education and that of said beneficiary’s children, the Trustee is authorized to pay to or for such beneficiary or child such additional amounts from the principal of the Trust Estate as it shall deem advisable in order to provide suitably and properly for the support, care, comfort, and education of said beneficiary and of said beneficiary’s children, and the action of the Trustee in making such payments shall be binding on all persons.” The actual proportions were: Total Percentage Percentage Percentage Owned by Owned by Owned by Decedent Decedent Trust and Trust Byrum Lithographing Co., Inc. 59 12 71 Graphic Realty, Inc. 35 48 83 By chrome Co. 42 46 88 26 U. S. C. §2036 provides: “(a) General rule. “The value of the gross estate shall include the value of all property to the extent of any interest therein of which the decedent has at any time made a transfer (except in case of a bona fide sale for an adequate and full consideration in money or money’s worth), by trust or otherwise, under which he has retained for his life or for any period not ascertainable without reference to his death or for any period which does not in fact end before his death— “(1) the possession or enjoyment of, or the right to the income from, the property, or “(2) the right, either alone or in conjunction with any person, to designate the persons who shall possess or enjoy the property or the income therefrom.” United States v. O’Malley, 383 U. S. 627 (1966). It is irrelevant to this argument how many shares Byrum transferred to the trust. Had he retained in his own name more than 50% of the shares (as he did with one corporation), rather than retaining the right to vote the transferred shares, he would still have had the right to elect the board of directors and the same power to “control'’ the flow of dividends. Thus, the Government is arguing that a majority shareholder’s estate must be taxed for stock transferred to a trust if he owned at least 50% of the voting stock after the transfer or if he retained the right to vote the transferred stock and could thus vote more than 50% of the stock. It would follow also that if a settlor controlled 50% of the voting stock and similarly transferred some other class of stock for which the payment of dividends had to be authorized by the directors, his estate would also be taxed. Query: what would happen if he had the right to vote less than 50% of the voting stock but still “controlled” the corporation? See n. 10, infra. The Court has never overturned this ruling. See McCormick v. Burnet, 283 U. S. 784 (1931); Helvering v. Duke, 290 U. S. 591 (1933) (affirmed by an equally divided Court). In Commissioner v. Estate of Church, 335 U. S. 632 (1949), and Estate of Spiegel v. Commissioner, 335 U. S. 701 (1949), the Court invited, sua sponte, argument of this question, but did not reach the issue in either opinion. See, e. g., Old Colony Trust Co. v. United States, 423 F. 2d 601 (CA1 1970); United States v. Powell, 307 F. 2d 821 (CA10 1962) ; Estate of Ford v. Commissioner, 53 T. C. 114 (1969), aff’d, 450 F. 2d 878 (CA2 1971); Estate of Wilson v. Commissioner, 13 T. C. 869 (1949) (en banc), aff’d, 187 F. 2d 145 (CA3 1951); Estate of Budd v. Commissioner, 49 T. C. 468 (1968); Estate of Pardee v. Commissioner, 49 T. C. 140 (1967); Estate of King v. Commissioner, 37 T. C. 973 (1962). The dissenting opinion attempts to distinguish the cases, holding that a settlor-trustee’s retained powers of management do not bring adverse estate-tax consequences, on the ground that management of trust assets is not the same as the power retained by Byrum because a settlor-trustee is bound by a fiduciary duty to treat the life tenant beneficiaries and remaindermen as the trust instrument specifies. But the argument that in the reserved-power-of-management cases there was “a judicially enforceable strict standard capable of invocation by the trust beneficiaries by reference to the terms of the trust agreement,” post, at 166, ignores the fact that trust agreements may and often do provide for the widest investment discretion. Assuming, arguendo, that Mr. Justice White is correct in suggesting that in 1958, when this trust instrument was drawn, the estate-tax consequences of the settlor’s retained powers of management were less certain than they are now, this Court’s failure to overrule Northern Trust, plus the existence of recent cases such as King and the cases cited in n. 6, have undoubtedly been relied on by the draftsmen of more recent trusts with considerable justification. Our concern as to this point is not so much with whether Byrum properly relied on the precedents, but with the probability that others did Question: What is the basis of the Supreme Court's decision? A. judicial review (national level) B. judicial review (state level) C. Supreme Court supervision of lower federal or state courts or original jurisdiction D. statutory construction E. interpretation of administrative regulation or rule, or executive order F. diversity jurisdiction G. federal common law Answer:
songer_genapel1	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. BALDERSON v. UNITED STATES. LEUPOLD v. SAME. Circuit Court of Appeals, Eighth Circuit. March 19, 1928. Nos. 7825, 7826. Conspiracy <@=>47 — Evidence held to warrant conviction for conspiracy to possess and transport intoxicating liquor (Cr. Code, § 37 [18 USCA § 88]; National Prohibition Act, tit. 2 [27 USCA § 4 et seq.]). In prosecution under Criminal Code, § 37 (18 USCA § 88), for conspiracy to violate National Prohibition Act tit. 2 (27 USCA § 4 et seq.), by unlawfully transporting and possessing intoxicating liquor, evidence helé sufficient to warrant conviction. In Error to the District Court of the United States for the District of Nebraska; Thomas C. Munger, Judge. Eric Balderson and Ira Leupold were separately tried and convicted of conspiracy to violate the National Prohibition Act, and they separately bring error. Affirmed. Daniel Horrigan, of Omaha, Neb., for plaintiffs in error. James C. Kinsler, U. S. Atty., of Omaha, Neb. (Ambrose C. Epperson and George A. Keyser, Asst. U. S. Attys., both of Omaha, Neb., William J. Froelich, Asst. U. S. Atty., of O’Neill, Neb., and Philip M. Aitken, Asst. U. S. Atty., of Lincoln, Neb., on the brief), for the United States. Before WALTER H. SANBORN and LEWIS, Circuit Judges, and PHILLIPS, District Judge. PHILLIPS, District Judge. Erie Balder-son and Ira Leupold were charged by indictment, and separately tried, convicted, and1 sentenced, for a violation of section 37 of the Criminal Code (USCA, tit. 18, § 88). The assignments of error present one question: Did the court err in overruling the motions at the close of the evidence in each case for a directed verdict upon the ground that such evidence was insufficient to support a verdict of guilty ? The indictment charged that the defendants on the 6th day of January, 1926, unlawfully conspired together to commit an offense against the United States of America, to wit, to violate title 2 of the National Prohibition Act (27 USCA § 4 et seq.). It further charged that the defendants, on the 7th day of January, in the city of Lincoln, Lancaster county, Nebraska, in pursuance of such unlawful conspiracy, and to effect the object thereof, did unlawfully possess certain intoxicating liquor, to wit, 13 quarts of alcohol;, did unlawfully transport intoxicating liquor, to wit, 13 quarts of alcohol; did unlawfully possess intoxicating liquor, to wit about one-quart of alcohol; and did unlawfully transport intoxicating liquor, to wit, about one quart of alcohol. The evidence on the part of the government showed that on a number of occasions prior to January 7, 1926, the government’s witness, Henry Knippel, who was a tinner, at the request of one or the other of the defendants, had removed the flat top of certain 5-gallon tin containers, soldered an ordinary quart tin can immediately underneath the screw top opening in the top of such containers, filled the containers with water to within-about one quart of their capacity, and then soldered the tops with the quart tin cans attached thereto back on the containers; that prior to January 7, 1926, the defendant. Leupold brought 13 of such 5-gallon tin containers to Knippel’s shop in Lincoln and requested him to make like changes in such containers; that on the morning of January 7, 1926, both defendants came to the shop’, that Enippel had theretofore changed 8 of such containers, but, due to the freezing weather, had opened them np and removed the water; that defendants told him they would have to have the containers at once or they would lose a sale; that he worked through the noon hour and until about 1 o’clock fixing the containers, and that defendants then took them away. The evidence on the part of the government further showed that certain state officers were watching the tin shop; that they observed the defendants carry the containers from the tin shop and place them in an automobile; that the defendants then left in such automobile; that the officers followed them to an alley near Eighteenth and L streets, in Lincoln; that when the defendants reached the alley they got out of the automobile and walked over to a garage on such alley; that later they returned to the automobile and drove away; that the officers observed them about 2 o’clock in the afternoon return in such automobile to the garage; that the defendants drove into the garage and remained therein about 20 or 25 minutes; that they then backed the automobile out of the garage; that the defendant Balderson locked the garage door with a padlock; that the defendants then left in the automobile; that the officers followed them a short distance, arrested them, and found in the automobile a glass jug and funnel; that the glass jug contained a quantity of alcohol; that the officers then returned to the garage, broke into the same, and found 13 5-gallon tin containers with a small tin can soldered underneath the screw top opening in each of them; that they closely resembled in appearance the containers that the defendants had taken from the tin shop; that the small quart cans contained alcohol; that the balance of the 5-gallon containers contained water; that the officers also found a 1-gallon tin can containing a small amount of alcohol; that the odor of alcohol, was very perceptible in and around the garage. Enippel examined the containers found in the garage and testified that he had soldered the small cans underneath the opening in the tops thereof. The government also introduced the evidence of a chemist who testified that he had analyzed the contents of 4 of the quart cans soldered underneath the top of the 5-gallon containers and of the 1-gallon tin container found in the garage, and of the glass jug taken from the automobile, and testified that each contained ethyl or grain alcohol. We are of the opinion that the jury was warranted in finding from this evidence beyond a reasonable doubt that the defendants had entered into a conspiracy to possess, transport, and sell intoxicating liquor, to wit, alcohol, contrary to the provisions of the National Prohibition Act, and that on the 7th day of January, in-pursuance of such conspiracy and to further the objects thereof, they committed the overt aets charged in the indictment. We find no error in the records. The judgments are therefore affirmed. Question: What is the nature of the first listed appellant? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:
sc_threejudgefdc	B	What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the case was heard by a three-judge federal district court. Beginning in the early 1900s, Congress required three-judge district courts to hear certain kinds of cases. More modern-day legislation has reduced the kinds of lawsuits that must be heard by such a court. As a result, the frequency is less for the Burger Court than for the Warren Court, and all but nonexistent for the Rehnquist and Roberts Courts. SMITH v. UNITED STATES No. 91-1538. Argued December 7, 1992 Decided March 8, 1993 Rehnquist, C. J., delivered the opinion of the Court, in which White, Blackmun, O’ConnoR, Scalia, Kennedy, SouteR, and Thomas, JJ., joined. Stevens, J., filed a dissenting opinion, post, p. 205. David J. Bederman argued the cause for petitioner. With him on the briefs were Allen T. Murphy, Jr., and David Gernant. Christopher J. Wright argued the cause for the United States. On the brief were Solicitor General Starr, Assistant Attorney General Gerson, Deputy Solicitor General Mahoney, and Mark B. Stern. Chief Justice Rehnquist delivered the opinion of the Court. This case presents the question whether the Federal Tort Claims Act (FTCA), 28 U. S. C. §§ 1346(b), 1402(b), 2401(b), 2671-2680 (1988 ed. and Supp. II), applies to tortious acts or omissions occurring in Antarctica, a sovereignless region without civil tort law of its own. We hold that it does not. Petitioner Sandra Jean Smith is the widow of John Emmett Smith and the duly appointed representative of his estate. At the time of his death, Smith worked as a carpenter at McMurdo Station on Ross Island, Antarctica, for a construction company under contract to the National Science Foundation, an agency of the United States. Smith and two companions one day took a recreational hike to Castle Rock, located several miles outside of McMurdo Station. On their return, they departed from the marked route to walk across a snow field in the direction of Scott Base, a New Zealand outpost not far from McMurdo Station. After stopping for a snack, one of the three men took a step and suddenly dropped from sight. Smith followed, and he, too, disappeared. Both men had fallen into a crevasse. Despite search and rescue efforts, Smith died from exposure and internal injuries suffered as a result of the fall. Petitioner filed this wrongful-death action against the United States under the FTCA in the District Court for the District of Oregon, the district where she resides. Petitioner alleged that the United States was negligent in failing to provide adequate warning of the dangers posed by crevasses in areas beyond the marked paths. It is undisputed that petitioner’s claim is based exclusively on acts or omissions occurring in Antarctica. Upon the motion of the United States, the District Court dismissed petitioner’s complaint for lack of subject-matter jurisdiction, 702 F. Supp. 1480 (1989), holding that her claim was barred by 28 U. S. C. §2680(k), the foreign-country exception. Section 2680(k) precludes the exercise of jurisdiction over “[a]ny claim arising in a foreign country.” The Court of Appeals affirmed, 953 F. 2d 1116 (CA9 1991). It noted that the term “foreign country” admits of multiple interpretations, and thus looked to the language and structure of the FTCA as a whole to determine whether Antarctica is a “foreign country” within the meaning of the statute. Adopting the analysis and conclusion of then-judge Scalia, see Beattie v. United States, 244 U. S. App. D. C. 70, 85-109, 756 F. 2d 91, 106-130 (1984) (Scalia, J., dissenting), the Court of Appeals ruled that the FTCA does not apply to claims arising in Antarctica. To hold otherwise, the Court of Appeals stated, would render two other provisions of the FTCA, 28 U.S.C. §§ 1402(b), 1346(b), nonsensical. The Court of Appeáls held, in the alternative, that petitioner’s suit would be barred even if Antarctica were not a “foreign country” for purposes of the FTCA. Because the FTCA was a limited relinquishment of the common-law immunity of the United States, the Court of Appeals concluded that the absence of any clear congressional intent to subject the United States to liability for claims arising in Antarctica precluded petitioner’s suit. We granted certiorari to resolve a conflict between two Courts of Appeals, 504 U. S. 984 (1992), and now affirm. Petitioner argues that the scope of the foreign-country exception turns on whether the United States has recognized the legitimacy of another nation’s sovereign claim over the foreign land. Otherwise, she contends, the land is not a “country” for purposes of the FTCA. Petitioner points out that the United States does not recognize the validity of other nations’ claims to portions of Antarctica. She asserts, moreover, that this construction of the term “foreign country” is most consistent with the purpose underlying the foreign-country exception. According to petitioner, Congress enacted the foreign-country exception in order to insulate the United States from tort liability imposed pursuant to foreign law. Because Antarctica has no law of its own, petitioner claims that conventional choice-of-law rules control and require the application of Oregon law, the law of her domicil. Thus, petitioner concludes, the rationale for the foreign-country exception would not be compromised by the exercise of jurisdiction here, since the United States would not be subject to liability under the law of a foreign nation. Petitioner’s argument for governmental liability here faces significant obstacles in addition to the foreign-country exception, but we turn first to the language of that proviso. It states that the FTCA’s waiver of sovereign immunity does not apply to “[a]ny claim arising in a foreign country.” 28 U. S. C. § 2680(k). Though the FTCA offers no definition of “country,” the commonsense meaning of the term undermines petitioner’s attempt to equate it with “sovereign state.” The first dictionary definition of “country” is simply “[a] region or tract of land.” Webster’s New International Dictionary 609 (2d ed. 1945). To be sure, this is not the only possible interpretation of the term, and it is therefore appropriate to examine other parts of the statute before making a final determination. But the ordinary meaning of the language itself, we think, includes Antarctica, even though it has no recognized government. Our construction of the term “foreign country” draws support from the language of § 1346(b), “[t]he principal provision of the Federal Tort Claims Act.” Richards v. United States, 369 U. S. 1, 6 (1962). That section waives the sovereign immunity of the United States for certain torts committed by federal employees “under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U. S. C. § 1346(b) (emphasis added). We have construed § 1346(b) in determining what law should apply in actions brought under the FTCA. See Richards, supra. But by its terms the section is more than a choice-of-law provision: It delineates the scope of the United States’ waiver of sovereign immunity. If Antarctica were not a “foreign country,” and for that reason included within the FTCA’s coverage, § 1346(b) would instruct courts to look to the law of a place that has no law in order to determine the liability of the United States — surely a bizarre result. Of course, if it were quite clear from the balance of the statute that governmental liability was intended for torts committed in Antarctica, then the failure of § 1346(b) to specify any governing law might be treated as a statutory gap that the courts could fill by decisional law. But coupled with what seems to us the most natural interpretation of the foreign-country exception, this portion of § 1346(b) reinforces the conclusion that Antarctica is excluded from the coverage of the FTCA. Section 1346(b) is not, however, the only FTCA provision that contradicts petitioner’s interpretation of the foreign-country exception. The statute’s venue provision, § 1402(b), provides that claims under the FTCA may be brought “only in the judicial district where the plaintiff resides or wherein the act or omission complained of occurred.” Because no federal judicial district encompasses Antarctica, petitioner’s interpretation of the FTCA would lead to yet another anomalous result: The FTCA would establish jurisdiction for all tort claims against the United States arising in Antarctica, but no venue would exist unless the claimant happened to reside in the United States. As we observed in Brunette Machine Works, Ltd. v. Kockum Industries, Inc., 406 U. S. 706, 710, n. 8 (1972), “Congress does not in general intend to create venue gaps, which take away with one hand what Congress has given by way of jurisdictional grant with the other.” Thus, in construing the FTCA, it is “reasonable to prefer the construction that avoids leaving such a gap,” ibid., especially when that construction comports with the usual meaning of a disputed term. Our decisions interpreting the FTCA contain varying statements as to how it should be construed. See, e.g., United States v. Yellow Cab Co., 340 U. S. 543, 547 (1951); Dalehite v. United States, 346 U. S. 15, 31 (1953); United States v. Orleans, 425 U. S. 807, 813 (1976); Kosak v. United States, 465 U. S. 848, 853, n. 9 (1984). See also United States v. Nordic Village, Inc., 503 U. S. 30, 34 (1992). A recent statement of this sort, and the one to which we now adhere, is found in United States v. Kubrick, 444 U. S. 111, 117-118 (1979) (citations omitted): “We should also have in mind that the Act waives the immunity of the United States and that ... we should not take it upon ourselves to extend the waiver beyond that which Congress intended. Neither, however, should we assume the authority to narrow the waiver that Congress intended.” Reading the foreign-country exception to the FTCA to exclude torts committed in Antarctica accords with this canon of construction. Lastly, the presumption against extraterritorial application of United States statutes requires that any lingering doubt regarding the reach of the FTCA be resolved against its encompassing torts committed in Antarctica. “It is a longstanding principle of American law ‘that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States.’” EEOC v. Arabian American Oil Co., 499 U. S. 244, 248 (1991) (quoting Foley Bros., Inc. v. Filardo, 336 U. S. 281, 285 (1949)). In applying this principle, “[w]e assume that Congress legislates against the backdrop of the presumption against extraterritoriality.” Arabian American Oil Co., supra, at 248; accord, e. g., Argentine Republic v. Amerada Hess Shipping Corp., 488 U. S. 428, 440 (1989) (“When it desires to do so, Congress knows how to place the high seas within the jurisdictional reach of a statute”). The applicability of the presumption is not defeated here just because the FTCA specifically addresses the issue of extraterritorial application in the foreign-country exception. To the contrary, as we stated in United States v. Spelar, 338 U. S. 217, 222 (1949), “[t]hat presumption, far from being overcome here, is doubly fortified by the language of this statute and the legislative purpose underlying it.” Petitioner does not assert, nor could she, that there is clear evidence of congressional intent to apply the FTCA to claims arising in Antarctica. For all of these reasons, we hold that the FTCA’s waiver of sovereign immunity does not apply to tort claims arising in Antarctica. Some of these reasons are based on the language and structure of the statute itself; others are based on presumptions as to extraterritorial application of Acts of Congress and as to waivers of sovereign immunity. We think these norms of statutory construction have quite likely led us to the same conclusion that the 79th Congress would have reached had it expressly considered the question we now decide: It would not have included a desolate and extraordinarily dangerous land such as Antarctica within the scope of the FTCA. The judgment of the Court of Appeals is therefore Affirmed. Without indigenous human population and containing roughly one-tenth of the world’s land mass, Antarctica is best described as “an entire continent of disputed territory.” F. Auburn, Antarctic Law and Politics 1 (1982). Seven nations — Argentina, Australia, Chile, France, New Zea-land, Norway, and the United Kingdom — presently assert formal claims to pie-shaped portions of the continent that total about 85 percent of its expanse. Boczek, The Soviet Union and the Antarctic Regime, 78 Am. J. Int’l L. 834, 840 (1984); Hayton, The Antarctic Settlement of 1959, 54 Am. J. Int’l L. 349 (1960). The United States does not recognize other nations’ claims and does not itself assert a sovereign interest in Antarctica, although it maintains a basis for such a claim. Lissitzyn, The American Position on Outer Space and Antarctica, 53 Am. J. Int’l L. 126, 128 (1969). In any event, these sovereign claims have all been suspended by the terms of the Antarctic Treaty, concluded in 1959. Antarctic Treaty, Dec. 1, 1959, [1961] 12 U. S. T. 794, T. I. A. S. No. 4780. Article IV of the treaty states that no claim may be enforced, expanded, or compromised while the treaty is in force, id., art. IV, 12 U. S. T., at 796, thus essentially freezing nations’ sovereign claims as of the date of the treaty’s execution. Cf. Beattie v. United States; 244 U. S. App. D. C. 70, 756 F. 2d 91 (1984) (holding that Antarctica is not a “foreign country” within the meaning of the FTCA). Nor can the law of the plaintiff’s domicil, Oregon here, be substituted in FTCA actions based on torts committed in Antarctica. “Congress has expressly stated that the Government’s liability is to be determined by the application of a particular law, the law of the place where the act or omission occurred ....” Richards v. United States, 369 U. S. 1, 9 (1962). Petitioner does not contend that her cause of action is based on acts or omissions occurring in Oregon. The history of the FTCA reveals that Congress declined to enact earlier versions of the statute that would have differentiated between foreign and United States residents. Those versions would have barred claims “arising in a foreign country in behalf of an alien.” S. 2690, 76th Cong., 1st Sess., § 303(12) (1939) (emphasis added); H. R. 7236, 76th Cong., 1st Sess., § 303(12) (1939) (emphasis added). At the suggestion of the Attorney General, the last five words of the proposed bills were dropped. See Hearings on H. R. 6373 and H. R. 6463 before the House Committee on the Judiciary, 77th Cong., 2d Sess., 29, 35, 66 (1942). As we observed in United States v. Spelar, 338 U. S. 217, 220 (1949), “[t]he superseded draft had made the waiver of the Government’s traditional immunity turn upon the fortuitous circumstance of the injured party’s citizenship.” The amended version, however, “identified the coverage of the Act with the scope of United States sovereignty.” Id., at 220-221. At least insofar as Antarctica is concerned, petitioner’s interpretation of the FTCA would effectively resurrect the scheme rejected by Congress; it would deny relief to foreign residents in circumstances where United States residents could recover. Petitioner instead argues that the presumption against extraterritoriality applies only if it serves to avoid “ ‘unintended clashes between our laws and those of other nations which could result in international discord.’ ” Brief for Petitioner 16 (quoting EEOC v. Arabian American Oil Co., 499 U. S., at 248). But the presumption is rooted in a number of considerations, not the least of which is the commonsense notion that Congress generally legislates with domestic concerns in mind. Question: Was the case heard by a three-judge federal district court? A. Yes B. No Answer:
songer_appel1_1_4	J	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "manufacturing". Your task is to determine what subcategory of business best describes this litigant. Clark NOE, Appellant, v. W. D. SMITH et al., Appellees. No. 18867. United States Court of Appeals Fifth Circuit. March 30, 1962. Geo. W. Provost, Pompano Beach, Fla., for appellant. Robert B. Cochran, Pompano Beach, Fla., William A. Morse, Eugene L. Heinrich, Fort Lauderdale, Fla., Norman S. Pallot, Miami, Fla., Arnold F. Kurzinger, Boca Raton, Fla., for appellees. McCune, Hiaasen, Crum & Ferris, Fort Lauderdale, Fla., for appellees Eugene L. Heinrich and James M. Crum, Fort Lauderdale, Fla., of counsel. Before HUTCHESON, WISDOM, and BELL, Circuit Judges. PER CURIAM. This is an appeal from a final judgment entered in the United States District Court for the Southern District of Florida, dismissing with prejudice appellant’s complaint of infringement of his patent on an underground drainage and disposal system. Holding appellant’s device unpatentable and the patent invalid by reason of lack of novelty and invention, the trial court entered findings of fact to the effect that the drainage and disposal system on which the patent had been issued had no new, different, or inventive principle, function, or advantage over the prior art and use in the field, in that all of its features were found to be mere mechanical equivalents of the prior art and use. It was found that the basic features of the patented device, its method of operation, and its appearance were substantially identical to various known drainage devices in use for many years prior to the application for the patent, with the only differences being those of form or shape, without differences in theory, structure, function, or purpose. See 35 U.S.C. §§ 101, 102. In addition, the court found that the device described in the patent was merely the adaptation of the teachings of the prior art and public use, with the addition of no more than the ordinary mechanical skill reasonably to be expected in the field, all of which would be obvious to persons of ordinary skill in the art pertaining to the subject matter of the patent. See 35 U.S.C. § 103. Findings of fact by the trial court in patent cases are conclusive upon appeal, unless they are found to be clearly erroneous. Fed.R.Civ.P. rule 52(a), 28 U.S.C.; Fairchild v. Poe, 259 F.2d 329 (5th Cir. 1958). Our examination of the record reveals that the findings of the trial court were supported by substantial evidence, and were not erroneous. The finding that the device was unpatentable and the patent invalid is a fully reviewable question of law. Smith v. Nichols, 88 U.S. 112, 118, 22 L.Ed. 566 (1874); Little Mule Corp. v. The Lug All Co., 254 F.2d 268, 275 (5th Cir. 1958); Fritz W. Glitsch & Sons, Inc. v. Wyatt Metal and Boiler Works, 224 F.2d 331, 335 (5th Cir. 1955). Upon the facts found, we are of the opinion that the court was correct in concluding that appellant’s device was unpatentable, and that the claims for relief because of infringement were therefore without merit. Because we affirm the findings of the trial court that the device did not meet the requisite standard of invention and was anticipated by the prior art, we find it unnecessary to pass upon appellant’s strongly urged contention that the court erred in the admission of evidence of prior public use. The judgment is Affirmed. Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "manufacturing". What subcategory of business best describes this litigant? A. auto B. chemical C. drug D. food processing E. oil refining F. textile G. electronic H. alcohol or tobacco I. other J. unclear Answer:
sc_issuearea	H	What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. DIXILYN DRILLING CORP. v. CRESCENT TOWING & SALVAGE CO. No. 297. Argued March 21, 1963. Decided April 15, 1963. E. D. Vickery argued the cause for petitioner. With her on the briefs was Wilbur H. Hecht. Charles Kohlmeyer, Jr. argued the cause for respondent. With him on the brief was George B. Matthews. Per Curiam. Respondent Crescent Towing Company contracted with petitioner Dixilyn Drilling Corporation to tow Dixilyn’s barge Julie Ann down the Mississippi River. While being towed, the barge collided with a bridge, and the bridge owners filed a libel in the United States District Court claiming damages from the tower and the barge owner. These two jointly paid the claim but continued to litigate, as between themselves, the question of which was liable. The district judge after a full trial found that the collision and the resulting damage were due solely to the negligence of the tower. He also rejected the tower’s argument that regardless of which was negligent the barge owner should pay the damages because it had contracted to assume liability for all damages arising out of the towage including “any damage claims urged by third parties.” The judge held that the barge owner had not agreed to assume liability for damages caused by the tower’s own negligence. On review the Court of Appeals held that it need not decide the “extremely difficult” factual question of who was negligent because, in the court's view, the barge owner had agreed in the towage contract to assume liability for all losses arising out of the towage, including those caused by the tower’s negligence. Holding such a contract to be valid, the Court of Appeals reversed the District Court’s judgment. In treating as valid a contract which exempts the tower from liability for its own negligence, the Court of Appeals’ holding is squarely in conflict with our holding in Bisso v. Inland Waterways Corp., 349 U. S. 85 (1955), and Boston Metals Co. v. The Winding Gulf, 349 U. S. 122 (1955). The Court of Appeals thought that the present case was distinguishable because the peculiar hazards of towage and other factors brought it within the ambit of Southwestern Sugar & Molasses Co. v. River Terminals Corp., 360 U. S. 411 (1959). But Southwestern Sugar is not applicable here, for in that case the Court merely preferred to give the Interstate Commerce Commission an opportunity to rule on an exculpatory clause which was part of a tariff filed with the Commission. We adhere to the rule laid down in Bisso and Winding Gulf and hold that the Court of Appeals was in error in failing to follow it. The judgment is reversed and the cause remanded to that court to consider other questions. Reversed and remanded. Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:
songer_state	07	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". Tom MALOUFF, Plaintiff in Error, v. UNITED STATES, Defendant in Error. Circuit Court of Appeals, Eighth Circuit January 25, 1929. No. 8129. T. J. Malouff, for plaintiff in error. George Stephan, U. S. Atty., and Charles E. Works, Asst. U. S. Atty., both of Denver, Colo. PER CURIAM. Writ of error dismissed, without costs to either party in this court, for failure to file brief, as provided in stipulation of parties. 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_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. NEW AMSTERDAM CASUALTY COMPANY, Plaintiff, v. Howard W. HOLMES et al., Air-Lite Products, Inc., Defendants, Appellants, J. J. O’Rourke, d/b/a J. J. O’Rourke Electric Company, Homans-Kohler, Inc., Defendants, Appellees. Nos. 7619-20, 7641-42. United States Court of Appeals, First Circuit. Dec. 30, 1970. Edward J. Regan, Providence, R. I. with whom Tillinghast, Collins & Graham and Raymond A. Lafazia, Providence, R. I., were on the brief, for appellants. John T. Keenan, Providence, R. I., for Homans-Kohler, Inc., appellee. Andrew H. Davis, Jr., Providence, R. I., with whom Charles H. Anderson, Rae B. Condon, and Swan, Keeney & Jenckes, Providence, R. I., were on brief, for J. J. O’Rourke, etc., appellee. Before ALDRICH, Chief Judge, MeENTEE and COFFIN, Circuit Judges. ALDRICH, Chief Judge. These appeals raise the right of appellants to seek contribution, under R.I. Gen.Laws 1956, § 10-6-1 et seq., the Uniform Contribution Among Tortfeasors Act, from appellees for any amounts that may be found due from appellants to the plaintiff, the insurer of the party allegedly injured by appellants’ and appellees’ joint negligence. Appellees are J. J. O’Rourke and Ho-mans-Kohler, Inc.; appellants, Howard W. Holmes et al. and Air-Lite Products, Inc. The action originated as a suit by New Amsterdam Casualty Company, the insurer, seeking recovery from both appellants and appellees. Plaintiff alleged that during the construction of a building owned by, and being erected by, Gil-bane Building Company, a general contractor, a fire substantially damaged the building; that the fire was caused by the negligence of the several defendants; that plaintiff had been obliged under its contract of insurance to reimburse Gilbane, and was, by virtue of its payment, subrogated to the rights of Gilbane. In their answer appellants denied negligence on their part. In addition they filed cross-claims against appellees, asserting appellees’ negligence and claiming that if appellants were found negligent, so as to be accountable to the plaintiff, they were entitled to contribution from appellees. Appellees moved for summary judgment with respect to the claims asserted against them by the plaintiff on the ground that plaintiff had also insured them, as Gilbane’s sub-contractors. Hence, they argued, for plaintiff as subrogee of Gilbane to recover against them would be in violation of its obligations as their insurer. The district court agreed, and granted appellees final summary judgments of dismissal, in accordance with F.R.Civ.P. 54(b). New Amsterdam Cas. Co. v. Homans-Kohler, Inc., D.R.I., 1969, 305 F.Supp. 1017. Appellees then moved for summary judgment of dismissal of appellants’ cross-claims against them, asserting that the Rhode Island Contribution statute was inapplicable. The district court granted final judgments of dismissal here, as well. New Amsterdam Cas. Co. v. Homans-Kohler, Inc., D.R.I., 1970, 310 F.Supp. 374. Plaintiff did not appeal from the dismissal of its claim against appellees. Appellants appealed from the dismissal of their cross-claims. The plaintiff did not participate in these appeals, but after the oral argument, envisaging that a resolution of the rights of the appellants and appellees inter sese might affect the ultimate rights of the plaintiff, we entered an order permitting it to appear and brief its position on the issues herein considered. All parties are now before the court. The court’s reasoning in dismissing the cross-claims was that in view of the fact that plaintiff had no right of recovery against appellees for their negligence, “it follows that there is no common liability in tort for said damages to [plaintiff by appellants and appellees]. In the absence of such common liability, they are not joint tortfeasors under said Act among whom a right of contribution exists under said Act.” 310 F.Supp., ante at 377. We do not read the act so narrowly. Section 10-6-2 defines joint tortfeasors as “persons jointly or severally liable in tort for the same injury * * The Rhode Island Court does not construe this as limited to situations in which all contributors are subject to direct suit by the plaintiff. In Zarrella v. Miller, 1966, 100 R.I. 545, 217 A.2d 673, the original plaintiff had been barred from suit against one of two allegedly negligent parties by an inter-spousal immunity rule. After the original plaintiff successfully sued the other party the court held contribution could be required from the immune but negligent spouse. It read the statute as enacting a broad equitable principle obligating all .who “negligently contributed to another’s injury,” and who are thus “culpable,” regardless of procedural defenses to direct suit. In Zarrella the court regarded the interspousal immunity doctrine as insufficient to defeat this policy. Still less should a private contractual relationship which led Gilbane to assign its rights to plaintiff, or the further, fortuitous, fact that two of the alleged joint tortfeasors happened to have taken out insurance with this same plaintiff. It is true that we have recognized that a legislative intent may be found which overrides the general purpose of the contribution statute. Newport Air Park, Inc. v. United States, 1 Cir., 1969, 419 F.2d 342. We may so regard the result, if not always the reasoning, in the workmen’s compensation cases cited by appellees. No such exception, however, is apparent here and appellees cite no pertinent authority in support of one. The district court’s interpretation of the statutory phrase “liable in tort” as demanding present liability to whoever is the particular plaintiff is inconsistent with other language of the statute itself. When it speaks in terms of the “same injury,” this must be the initial injury occasioned by the jointly negligent parties, not something definable in terms of who brings the suit. The injury in the case at bar, and the tort liability for negligent conduct, was to Gilbane, not to the insurer. No party, appellants or appellees, injured the plaintiff, in common or otherwise. Plaintiff’s claim is derivative, as subrogee, standing in all respects upon the rights and in the place of Gilbane. By our view of the statutory language, as well as under Zarrella, the district court’s question should have been not whether the defendants were jointly or severally liable to the plaintiff insurer, but whether they had jointly injured Gilbane, in whose shoes plaintiff stood. The relationship of appellants and appellees vis-a-vis Gilbane, assuming the negligence of all of them, is a typical joint tortfeasor situation. We find nothing in the policy of the Act, or in its language, to make an exception depriving appellants of their right to seek contribution simply because appellees had personal insurance. This does not mean that no consequence attaches to the insurance. There is a very substantial consequence. As a corollary to the district court’s holding that plaintiff cannot recover from appellees because it had insured against their negligence, appellees, in turn, will be able to obtain from plaintiff reimbursemnt for any loss incurred by having to contribute to appellants — instead of paying direct to Gilbane — by virtue of the statute. To avoid circuity of action, we hold that plaintiff cannot now recover against appellants to the extent that appellants could, in turn, compel contribution from appellees. See Maryland Cas. Co. v. Employers Mut. Liability Ins. Co., 2 Cir., 1953, 208 F.2d 731. Applying such reasoning, we can approve the district court’s result, dismissing appellants’ cross-claim against appellees, even though we hold the contribution statute applies. We protect the cross-claim rights, in effect, by allowing a set-off: in affirming that dismissal we rule that if plaintiff succeeds in its present action against appellants, and appellants establish the joint negligence of appellees, there must be set off what, absent appellees’ insurance, appellants can show they would have been able to recover from appellees by way of contribution. . A bank had an interest, but its claim stood on the same footing, and for simplicity we disregard it. . A third-party defendant, Pittsburgh Plate Glass Company, appeared and briefed an entirely new point. This is not involved in our present decision, was not in our notice, and hence was not briefed by other parties. We do not consider it. . Plaintiff made, and still makes, some protest that the policy coverage did not extend to liability resulting from appellees’ negligence. The court’s dismissal necessarily involved a ruling to the contrary, and not having been appealed from, is now conclusive. We may add that if that decision was wrong, and plaintiff allowed it to become final by plaintiff’s failure to appeal, plaintiffs conduct amounted to a voluntary release of appellees. For reasons that we need not pursue, but starting from R.I.Gen.Laws § 10-6-8, contribution would still be required of appellees, and plaintiff would presently be no better off under that alternative. Question: What is the total number of respondents in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number. Answer:
songer_usc1	33	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. James HAGANS, Appellee, v. FARRELL LINES, Inc., Appellant, v. Lavino Shipping Company, Appellee. No. 11703. United States Court of Appeals Third Circuit. Argued Jan. 13, 1956. Decided July 10, 1956. Rehearing Denied Sept. 25, 1956. Mark D. Alspach, Philadelphia, Pa. (Joseph J. Murphy, Robert W. Bikle, Krusen, Evans & Shaw, Philadelphia, Pa., on the brief), for appellant. Thomas F. Mount, Philadelphia (Rawle & Henderson, Joseph W. Henderson, Philadelphia, Pa., on the brief), for Lavino Shipping Co. Milton M. Borowsky (Freedman, Landy & Lorry, Philadelphia, Pa., on the brief), for James Hagans. Before GOODRICH, KALODNER and STALEY, Circuit Judges. KALODNER, Circuit Judge. The plaintiff, James Hagans, brought this civil action, founded upon the diversity jurisdiction of the district court, against Farrell Lines, Inc. (“Farrell”), to recover damages for personal injuries sustained in the course of discharging cargo from the latter’s vessel, S.S. “African Dawn”. Hagans was a longshoreman in the employ of Lavino Shipping Co. (“Lavino”), a concern performing stevedoring services for the vessel. His complaint alleged negligence and unseaworthiness. Farrell joined Lavino as third-party defendant, alleging in its third-party complaint that Hagans’ injuries were the result of Lavino’s negligence, of unseaworthy conditions created by Lavino, or of open unseaworthiness of which Lavino had knowledge and to which it “deliberately” subjected its employees. Farrell sought indemnity from Lavino in the event it was held liable to Hagans. The matter was tried before a jury, which returned a general verdict in favor of Hagans in his action against Farrell, and against Farrell in its third-party action against Lavino. The jury also answered specific interrogatories, about which more will be said later. The district court entered judgment in accordance with the general verdict and Farrell has appealed asserting errors in the instructions given by the court to the jury and in the denial of its request for binding instructions in its favor against Lavino. The facts may be stated as follows: The S.S. “African Dawn”, arriving late at Philadelphia, Pennsylvania, on December 4, 1951, was moored in the middle berth of the south side of Pier 98 at about 2:00 o’clock p. m. Four gangs of longshoremen were assigned by Lavino to discharge her cargo, Hagans being positioned on the pier to assist in the discharge from the vessel’s No. 4 hatch, the only hatch with which we are here concerned. To discharge the cargo, the forward booms and winches of the No. 4 hatch were rigged with the offshore boom positioned over the hatch and the inshore boom extending over the pier. The after booms were not used because the booms would have been too low for the cargo to clear the ship’s rail. The winches were electrically driven. To pay out cable, the winch operator would move hand control levers forward; to raise the cargo, he would move them backward. To stop the movement, he would put the levers in a “neutral” position, which called into play an automatic brake. Because of the position of the winches, the winch operator could not see into the wings of the hold or over the side of the vessel. Consequently, he depended upon hand signals from the longshoreman assigned as a hatch tender. The system followed was for the hatch tender to stand next to the inshore coaming of the hatch while the draft was being made up in the hold, giving the signal to the winch operator to remove the draft when ready. As that was done, he would cross over the deck to the ship’s rail and signal the lowering of the draft onto the pier. When the booms had been rigged and before the first longshoreman commenced to operate the No. 4 hatch winches, a ship’s electrician had completed making some adjustment to the control box on the inshore winch. The electrician told the operator, Oliver, that it was all right to use the winch, and a ship’s officer was standing by. Shortly thereafter, in moving hatch covers, Oliver noticed that from time to time when he placed the levers in neutral the load would not hold fast. When he commenced to move cargo, he noticed that as the load was stopped in transit it sometimes would “drift” past his target. A “couple” of drafts had been removed from the hold when orders were given to rig up a “save-all”, i. e., a rope net spread between the vessel and the pier to catch cargo which might otherwise fall into the water as it was being moved in a sling from the hold to the pier. Oliver pulled the “save-all” up with the winch, then changed positions with his hatch tender, Harris, in accordance with a practice to rotate positions at fixed intervals. Oliver assisted in tying the “save-all” ropes at the ship’s rail, and Hagans at the pier edge. After one draft had been moved, someone called to tighten the “save-all”. Hagans was still engaged in tightening one of the ropes when a draft of bags of cocoa beans, weighing about a ton (which was light for the equipment), moved over the rail of the ship. Oliver had previously signalled for the draft to come out of the hold, and would have preceded the draft to the rail, except for the fact that he stumbled over a padeye welded to the ship’s deck. Seeing Hagans bent over near the edge of the pier, Oliver signalled the winch operator to stop the draft and called to Hagans. The draft was then moving at its slowest speed and was about twelve to fifteen feet above the pier. The winchman immediately moved the levers into neutral, and a click was heard. However, the load “drifted” down, five or six feet of cable running off the winch drum, striking Hagans, about the head and shoulders as he was about to stand up. The draft came to rest about three feet above the pier. The time of the accident was about 3:30-o’clock p. m. Oliver told one of his fellow workers that the winches were not “acting right” soon after he commenced to use them,' and after he finished his turn at the winches, which was just before the accident, he told his hatch foreman, Col-lick. Harris noticed that there was a “drift” of four to five feet after he took over the winches. There was evidence that in the normal use of a winch it sometimes “drifted” because the automatic brake became loose, and that the' ship’s electrician would make repairs. In this instance, after the accident the ship’s electrician made some repairs to the winch involved, but there was still some drift. The winches were ship’s equipment, maintained and repaired by the ship’s personnel. The contract between Farrell and Lavino required the ship to supply to Lavino adequate winches in good order. There was evidence, too, that the obligation to repair the winches was upon the ship, and that the stevedores were not permitted to make repairs. The jury, immediately prior to returning its verdict, submitted to the district judge the following questions: “1. If we conclude that the winches were defective and were the principal cause of the accident and the employees of Lavino only incidentally negligent must the verdict between Farrell and Lavino be in favor of the defendant Lavino?” “2. If the answer to that question is yes may we now give our verdict?” The district judge answered both questions affirmatively, and the jury stated that it was ready to render its verdict although it was offered further opportunity for deliberation. The jury’s general verdict, as already stated, wTas against Farrell and in favor of the plaintiff, Hagans, and the third-party defendant, Lavino. In addition, the jury found, in answer to specific interrogatories, that the winch involved was defective, that such defect was not the sole cause of the accident, that there was concurring negligence on the part of Lavino’s employees, but that such concurring negligence was not the sole cause of the accident, and that Hagans was not contributorily negligent. We think it a necessary conclusion from the question addressed to the court by the jury, and the general verdict, that the jury must also have concluded that the defective winch was the substantial cause of the accident, and that the negligence of Lavino’s employees was not a substantial cause of the accident. The district court entered judgment in accordance with the general verdict, and Farrell prosecuted this appeal. It is our opinion that the judgment must be affirmed. Insofar as the controversy between Hagans and Farrell is concerned, Farrell premises its appeal upon two alleged errors in the trial court’s instructions to the jury. First, it maintains that the court, in reciting the evidence, assumed the truth of Hagans’ evidence that there was a defect in the winch, and therefore the charge was “one-sided”. Second, it maintains that the trial judge instructed the jury to disregard the expert medical testimony in determining the extent of Hagans’ injuries. Neither contention is meritorious. There is no question whatsoever that the district judge carefully placed the fact-finding job in the hands of the jurors, advising that their recollection of the evidence must control. The court merely recited the manner in which it was contended that the accident happened, albeit using the language of the witnesses that the load “drifted”, and indeed, this was the only way in which the accident was described. The issue, whether the winch was defective was specifically left to the jury upon “the testimony of all of the witnesses, both for the plaintiff and the defendant.” A review of the charge fails to convince us that the jury should have felt restricted in reaching the conclusion, which it did in answer to a specific interrogatory, that the winch was defective. A review of the evidence, however, leads to the conclusion that the jury could hardly have reached any other result. The transcript of the court’s charge included in the original record reports the following instruction: “You heard all these doctors and I will not tquch upon that phase of it; you heard these various doctors, and they are generally in agreement that the man was injured, but how far he was injured is a matter for you to decide not on their testimony but on the plaintiff’s own testimony and on your general knowledge of conditions in the world in which we live today. You are going to pass judgment upon what injuries he has, the extent and duration of such injuries, and say how far he has been reduced in earning power; * * * I do not know about that, and the doctors have given us various views, and you will have to pass upon that * * * ” (Emphasis supplied.) However, the court reporter filed a certificate that the word “only” was inadvertently omitted from the italicized portion of the charge quoted above, so that, as corrected, the transcription should read “not only on their testimony”. The trial judge authorized correction of the record. As corrected, the charge is not erroneous, and we do not understand Farrell to contend otherwise. Accordingly, we conclude that the judgment in favor of Hagans against Farrell must be affirmed. Insofar as the controversy between Farrell and Lavino is concerned, Farrell asserts that it is entitled to judgment against Lavino as a matter of law, but if not, then to a new trial because of errors in the charge to the jury in respect of Lavino’s responsibility for the conduct of its employees and of the legal responsibilities of Farrell and Lavino inter se. We do not reach the trial issues, because it is our opinion that, on the record, Farrell is not entitled to indemnity from Lavino. It is clear that no recovery of contribution may be had by Farrell from Lavino, presupposing that they are joint tortfeasors. Halcyon Lines v. Haenn Ship Ceiling & Refitting Corp., 1952, 342 U.S. 282, 72 S.Ct. 277, 96 L.Ed. 318; Pope & Talbot, Inc., v. Hawn, 1953, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143. However, in appropriate circumstances, where a relational duty exists between parties like Farrell and Lavino which one has violated to the loss of the other, indemnity is allowable. Ryan Stevedoring Co. v. Pan-Atlantic Steamship Corp., 1956, 350 U.S. 124, 76 S.Ct. 232; Crawford v. Pope & Talbot, Inc., 3 Cir., 1953, 206 F.2d 784; Read v. United States, 3 Cir., 1953, 201 F.2d 758; Rich v. United States, 2 Cir., 1949, 177 F.2d 688; Bethlehem Shipbuilding Corp. v. Joseph Gutradt Co., 9 Cir., 1926, 10 F.2d 769; Mowbray v. Merryweather (1895) 2 Q.B. 640. And it is the general consensus that, in this class of cases, where the alleged indemnitor is subject to the Longshoremen’s Compensation Act, 44 Stat. 1424 et seq., as amended, 33 U.S.C.A. § 901 et seq., the right to indemnity is independent of the duty owed by the indemnitor to the injured person, and does not arise on account thereof. Brown v. American-Hawaiian S. S. Co., 3 Cir., 1954, 211 F.2d 16; Crawford v. Pope & Talbot, Inc., supra; LoBue v. United States, 2 Cir., 1951, 188 F.2d 800; Slattery v. Marra Bros., Inc., 2 Cir., 1950, 186 F.2d 134; American Mutual Liability Ins. Co. v. Matthews, 2 Cir., 1950, 182 F.2d 322; Cf. Peak Drilling Co. v. Halliburton Oil Well Cementing Co., 10 Cir., 1954, 215 F.2d 368; Booth-Kelly Lumber Co. v. Southern Pac. Co., 9 Cir., 1950, 183 F.2d 902, 20 A.L.R.2d 695. A typical situation for the allowance of indemnity appears in Ryan Stevedoring Co. v. Pan-Atlantic Steamship Corp., supra, as the factual situation was there construed. In that case, a longshoreman who was injured as a result of improper stowage of cargo by the stevedoring contractor obtained judgment against the shipowner, whose duty to the longshoreman was non-delegable; the shipowner sought indemnity from the stevedoring contractor. Indemnity was granted on the ground that the stevedoring contractor had violated its contractual obligation to the shipowner to stow the cargo properly, which was the basis of the shipowner’s liability to the injured longshoreman. Previously, we held a stevedoring contractor liable to indemnify a shipowner where the former had contracted to furnish adequate lighting and its breach of this obligation was the basis of the shipowner’s liability to an injured longshoreman. Read v. United States, supra; Crawford v. Pope & Talbot, Inc., supra. We placed the obligation to indemnify squarely on the ground that the indemnitor had agreed to perform the indemnitee’s duty, which as between the indemnitee and the injured longshoreman was non-delegable; this was independent of and did not derive from the injury to the employee. Brown v. American-Hawaiian S. S. Co., supra. The instant case presents the-converse of the Ryan situation. Here; the shipowner, Farrell, was held responsible in the district court to the injured longshoreman because of a defective winch, i. e., unseaworthiness or a negligent failure to furnish a safe place to work. But the stevedoring contractor, Lavino, had not undertaken to perform Farrell’s non-delegable duty, nor did Lavino create the defective condition. To the contrary, Farrell assumed an express obligation running to Lavino to furnish adequate winches in good order, and, as the evidence shows, to maintain and repair them. Upon the analogy of-the above cited decisions, it results that Lavino, had it paid its employee on account of injuries sustained, would be entitled,’ if this were all to the case, to be indemnified by Farrell therefor. Mowbray v. Merryweather, supra; Restatement, Contracts, Section 334. A fortiori, Farrell is not entitled to indemnity from Lavino. Thus, in American Mutual Liability Ins. Co. v. Matthews, supra, it was said: “In the case at bar no promise by the employer can be implied that he will not use equipment furnished him by the shipowner to be used for the very purpose to which it was put. Nor can a promise be implied that he will use care to detect any defect in the equipment which patently existed when the equipment was delivered for use by the employer. To imply such a promise would mean that the employer agreed to protect the shipowner against liability arising out of the shipowner’s own negligence. In the absence of an express promise, such an implication would be utterly unreasonable.” 182 F.2d 322, 324. Accordingly, it can only be concluded that Hagans’ injury is the result, as the jury found, of Farrell's own conduct, which at once violated its duty to the longshoreman and to Lavino. As held in the Ryan decision, supra, the promisor cannot use the promisee’s failure to discover and correct the promisor’s own breach as a defense. See,. Restatement, Restitution, Section 93, and Comment a. . . . Farrell, however, bases its claim., to indemnity upon the asserted neglect of Lavino, first, in using the winch knowing its condition to be defective, and second, upon the conduct of the hatchman, Oliver, in signalling the draft out of -the hold without making certain Hagans was no longer in its path. Knowledge of and .acquiescence in the existence of a defective appliance or condition may prevent the fruition of the right to indemnity. Restatement, Restitution, Sections 93 and 95, and Reporters’ Notes. But it does not necessarily follow that the burden to indemnify is thereby created. Where the parties have violated similar duties to the injured person, neither is entitled to relief against the other. Union Stock Yards Co. v. Chicago, B. & Q. R. Co., 1905, 196 U.S. 217, 25 S.Ct. 226, 49 L.Ed. 453. Absent the compensation act, and hypothesizing the legal impossibility of contribution, the independent neglect of Lavino to Hagans would qualify Lavino as a joint tort-feasor with Farrell, in which event Farrell could not recover either contribution or indemnity. Restatement, Restitution, Section 102. But, as we have already stated, Farrell’s right to indemnity must arise out of the legal relationship between it and Lavino, and not out of the relationship to the employee. To this proposition we are previously committed by our decisions in the Brown and Crawford cases, supra; see also, Slattery v. Marra Bros., Inc., supra. Here, Farrell was under a continuing responsibility to Lavino for the good orr der and maintenance of the winches. It fell down on the job. Indeed, it went further, for its repairman gave Lavino affirmative approval of the equipment in the presence of a ship’s officer. At most, Lavino used the defective winch- only a ■few times in the hour and a half which intervened between commencement of the use and the accident to Hagans. We see nothing in this situation which should require Lavino to indemnify Farrell. McKay v. Pedigree Fabricks, Inc., Sup.1947, 74 N.Y.S.2d 385; Morris v. Attula, Sup.1949, 74 N.Y.S.2d 386. Farrell’s complaint that the hatchman erred in signalling the draft out of the hold before ascertaining that Hagans was out of the way does not amount to other than contributing neglect; except for the fact that the hatchman tripped on his way across the deck, he would have had adequate time to warn Hagans. Nothing in the record suggests intentional or reckless conduct on the part of Lavino which would permit the conclusion that La-vino’s violation of duty toward Farrell supersedes Farrell’s violation of duty toward Lavino. See Restatement, Restitution, Section 97. Reliance by Farrell upon cases which characterize the conduct of the indemnitor as the “sole”, “active” or “primary” cause, does not assist, for as stated, the indemnitor was held to have brought about the condition or defect for which the indemnitee was charged. Here, the ground upon which Farrell was held liable to Hagans was its own doing; as between Farrell and Lavino, Farrell had assumed the responsibility. If anything, Lavino only contributed to the happening of the accident. But if Lavino failed to perform its work properly, we are constrained to hold that, in the face of mutual violations, Farrell is not entitled to full indemnity, and, of course, it cannot have contribution. We do not interpret Berti v. Compagnie de Navigation Cyprien Fabre, 2 Cir., 1954, 213 F.2d 397, as requiring a different result. The situation there was specifically identified by the court with Palazzola v. Pan Atlantic S. S. Corp., 2 Cir., 1954, 211 F.2d 277 affirmed sub nom. Ryan Stevedoring Co. v. Pan Atlantic Steamship Corp., supra, wherein the fault for which the shipowner was held responsible was the product of the stevedoring contractor’s breach of contract. The factual situation in Berti is rather sparsely treated, but it appears that, as viewed by the court, the “sole” basis of the shipowner’s liability to the employee was the failure of the stevedoring contractor to do its work properly; the decision was left open for determination, on retrial, of the factual issues which would resolve the relative responsibilities of the parties. The decision in United States v. Rothschild International Stevedoring Co., 9 Cir., 1950, 183 F.2d 181, was recently discussed by the court, and cited along with our decision in Read v. United States, supra, in States S. S. Co. v. Rothschild International Stevedoring Co., 9 Cir., 1953, 205 F.2d 253, 255; but see Slattery v. Marra Bros., Inc., supra, 186 F.2d at page 138. However, the factual situation here does not justify a similar result, whether it be found upon the relation of the contracting parties or their relation to the injured party. We conclude, therefore, that Farrell is not entitled to shift to Lavino full responsibility for the loss occasioned by the payment of Hagans’ judgment. For the reasons stated, the judgment of the district court will be affirmed. . The relevant interrogatories and answers are as follows: “1. Was the winch, which was in operation at the time of the accident, defective?” Answer: “Yes.” “2. If your answer to No. 1 is yes, was such defect the sole cause of the plaintiff’s injuries?” Answer: “No.” “3. If your answer to No. 2 is no, were the plaintiff’s injuries caused by the concurring negligence of those in charge of the vessel or the unseaworthiness of the vessel and the employees of Lavino Shipping Company?” Answer: “Yes.” “4. Were the plaintiff’s injuries caused solely by the acts or omissions of the employees of Lavino Shipping Company in the work of unloading the cargo?” Answer: “No.” “5. Did the negligence or inattention of the plaintiff to any degree contribute to the cause of his injuries?” Answer: “No.” Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number. Answer:
songer_respond1_1_4	I	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "manufacturing". Your task is to determine what subcategory of business best describes this litigant. DATAQ, INC., Plaintiff-Appellant/Cross Appellee, v. TOKHEIM CORPORATION, Defendant-Appellee/Cross Appellant. Nos. 82-1167, 82-1855. United States Court of Appeals, Tenth Circuit. May 30, 1984. Jerry J. Dunlap of Dunlap & Codding, Oklahoma City, Okl. (Charles A. Codding of Dunlap & Codding, Oklahoma City, Okl., and Pat Malloy of Malloy & Malloy, Inc., Tulsa, Okl, with him on briefs), for plaintiff-appellant/cross appellee. David A. Lundy of Lundy & Associates, Fort Wayne, Ind. (Elsie Draper of Gable & Gotwals, Tulsa, Okl., with him on briefs), for defendant-appellee/cross appellant. Before BARRETT, McKAY and LOGAN, Circuit Judges. McKAY, Circuit Judge. Plaintiff brought this action alleging breach of contract and patent infringement. After plaintiff presented its evidence to the jury, the trial court directed verdicts in favor of the defendant on both counts. Defendant sought leave to file a motion for costs and attorney’s fees. The motion was denied. Plaintiff appeals from a final judgment entered on the directed verdicts and defendant cross-appeals on the attorney’s fees issue. In 1969, plaintiff, Dataq, began developing an electronic gasoline dispensing system for use in service stations. In the summer of 1969, defendant, Tokheim Corporation, a large manufacturer of gasoline pumps, became interested in acquiring the plaintiff corporation. The parties entered into an agreement, dated August 29, 1969, whereby the plaintiff was to disclose confidential information regarding the development of its electronic gasoline dispensing system. The purpose of the agreement was to allow the defendant to evaluate the development information and the potential acquisition of the plaintiff. The agreement was to terminate upon occurrence of a number of conditions, which are not at issue here, or on August 1, 1971. While the agreement was in effect, the parties continued to exchange information and the plaintiff continued to develop the gasoline dispensing system. The parties never reached an agreement as to defendant’s acquisition of the plaintiff. On September 20, 1973, the plaintiff applied for.a patent on its dispensing system. The patent was subsequently granted. However, in September 1972, the defendant had begun marketing its own gasoline dispensing system and by the early 1980’s had introduced a total of three models. Plaintiff brought this action alleging that the defendant developed its systems by utilizing the confidential information disclosed pursuant to the August 29, 1969, agreement and that this use of the disclosed information violated the terms of the agreement. Plaintiff also alleged that the systems developed by defendant infringe on plaintiff’s patent. STANDARD OF REVIEW The standard for reviewing a directed verdict is whether there is a genuine issue of material fact to be resolved by the trier of fact. Black, Sivalls & Bryson, Inc. v. Keystone Steel Fabrication, Inc., 584 F.2d 946, 951 (10th Cir.1978). A verdict should “be directed where both the facts and the inferences to be drawn from the facts point so strongly in favor of one party that the court believes that reasonable men could not come to a different conclusion.” Id. (quoting 5A Moore’s Federal Practice 1 50.02[1] (2d ed. 1977)). As we concluded in Black, in light of these exacting standards, directed verdicts should be granted cautiously and sparingly. Id. In applying this standard, we must view the evidence in the light most favorable to the party against whom the verdict was directed. We must give that party the benefit of all inferences which the evidence fairly supports, even though contrary inferences could reasonably be drawn. Id. CONTRACT CLAIM Under Oklahoma law, an action for breach of a written contract must be brought within five years of the date the cause of action accrues. Okla.Stat.Ann. tit. 12 § 95 (West Supp.1983). A cause of action accrues when the party owning it has a legal right to sue, see Sherwood Forest No. 2, Corp. v. City of Norman, 632 P.2d 368, 370 (Okl.1980), and is intended to run against those who are neglectful of their rights and fail to use reasonable and proper diligence in enforcing them. Seitz v. Jones, 370 P.2d 300, 302 (Okl.1961); see also, Equilease Corp. v. State Federal Savings and Loan Association, 647 F.2d 1069, 1073 (10th Cir.1981). The confidentiality agreement herein, terminated, by its own terms, on August 1, 1971. Plaintiff filed its complaint on September 29, 1978. Finding that there was no genuine issue of material fact as to whether the statute of limitations had been tolled, the trial court directed a verdict against the plaintiff on its contract claim because the plaintiff did not bring this action within five years of August 1, 1971. Plaintiff argues on appeal that it did present evidence sufficient to raise a genuine issue of material fact as to whether the statute of limitations had been tolled, and therefore the trial court erred in directing a verdict in defendant’s favor. Plaintiff contends that the statute of limitations may be tolled several ways. We need not address each of the theories plaintiff raises since under any of the theories, the statute is only tolled until plaintiff knew or, in the exercise of reasonable diligence, should have known of the breach. Redwine v. Baptist Medical Center, 679 P.2d 1293 (Okl.1983) (reprinted at 54 Okla. Bar J. 1272, 1273 (1983)); see also, Flowers v. Stanley, 316 P.2d 840, 846 (Okl.1957). Viewing the evidence in the light most favorable to the plaintiff, we have reviewed the record and conclude that the trial court properly directed a verdict in favor of the defendant on plaintiffs contract claim. The evidence produced at trial and any inferences fairly drawn from it clearly supports the trial court’s findings that the plaintiff was aware that “something may have been amiss concerning the Defendant’s obligations under the confidentiality agreement” by November of 1972. Record, vol. 2, at 618. Thus, if there was any tolling of the statute after the contract expired on August 1, 1971, the statute was tolled only until November 1972. Plaintiff did not bring its action until almost six years after November 1972. PATENT INFRINGEMENT CLAIM Title 35 U.S.C. § 102(b) (1976) provides that a person is entitled to a patent unless “the invention was ... on sale in this country, more than one year prior to the date of the application for patent in the United States ____” The trial court directed a verdict against plaintiff on its patent infringement claim because the court found that plaintiff’s dispensing system was “on sale” prior to the one-year period. The court also found that the plaintiff failed to present evidence sufficient for submission to a jury to bring plaintiff’s device within the experimental use exception to section 102(b). Record, vol. 2, at 620; see McCullough Tool Co. v. Well Surveys, Inc., 343 F.2d 381, 393-94 (10th Cir.1965), cert. denied, 385 U.S. 990, 87 S.Ct. 601, 17 L.Ed.2d 451 (1966). Thus, the trial court found that plaintiff’s patent was invalid and therefore there was no infringement issue for the jury to decide. The issue on appeal is whether the trial court erred in directing a verdict that plaintiff’s dispensing system was “on sale” pri- or to one year before the patent application was filed. We need not reach a determination of the trial court’s ruling on the experimental use exception if the device was not “on sale.” See Manufacturing Research Corp. v. Graybar Electric Co., 679 F.2d 1355, 1362 (11th Cir.1982). The alleged “sale” in this action is plaintiff’s acceptance of a purchase order from an Oklahoma corporation, which is not a party to these proceedings. The purchase order was accepted by plaintiff on August 20, 1972, one year and twenty-one days prior to plaintiff filing the patent application. At the time plaintiff accepted the purchase order, the dispensing system in question had been developed to the point where circuit diagrams had been drawn and “tapings” prepared. The “tapings” consisted of adhesive tapes mounted on flat sheets of plastic. The tapes corresponded to the connections shown in the circuit diagrams. After the purchase order was accepted, the tapings were shipped to a firm which converted them to photographic negatives, and then converted the negatives into printed circuit boards. After the circuit boards were completed, plaintiff still had to physically insert electronic chips into the holes in the boards and solder the chips to connectors. After that, plaintiff had to test the unit in laboratory conditions before connecting it with on-site hardware. Plaintiff presented evidence that until a prototype was built and tested, it did not know whether the system would work. This court has never considered the stage of development which an invention must have reached before it can be “on sale.” After carefully reviewing the case-law in other circuits, we adopt the test applied in Poole v. Mossinghoff, 214 U.S.P.Q. (BNA) 506 (D.D.C.1982). In Poole, Chief Judge Markey of the United States Court of Customs and Patent Appeals, sitting by designation, set out a test for determining if a device is “on sale.” “Whether an invention is ‘on sale’ is primarily a matter of the inventor’s intent.” Id. at 509. The inventor must have a present intent to sell, and must communicate that intent to a prospective purchaser to elicit a sale and not for some other reason. Id. Further, the Poole court held that the contract in that case was insufficient in itself to establish a placing of the invention “on sale” because, at the time it was negotiated, the invention was not a “reality,” that is, it had not been reduced to practice and was not beyond the state of experimentation____ Indeed, it had not been and may never have been successfully developed. Id. (citation omitted). We are satisfied that Poole provides an analytically sound test which accommodates the interests of both the inventor and the public. Viewing the evidence and the inferences which it fairly supports in the light most favorable to the plaintiff, we find that the trial court improperly directed a verdict against plaintiff on the patent infringement issue. A careful review of the record leaves us persuaded that under the Poole test, plaintiff raised a genuine issue of material fact as to whether its gasoline dispensing system had been “reduced to practice” prior to one year before the patent application was filed, thus raising a genuine issue of material fact as to whether the system was “on salé” before the critical date. ATTORNEY’S FEES The defendant cross-appeals, challenging the trial court’s order denying defendant leave to file a Bill of Costs and Motion for Attorney’s Fees. The defendant seeks an award of attorney’s fees and costs on three grounds: (1) under 35 U.S.C. § 285 (1976); (2) under Fed.R.Civ.P. 37(a)(4); and (3) under Fed.R.Civ.P. 54(d). Title 35 U.S.C. § 285 provides that in exceptional cases a court “may award reasonable attorney fees to the prevailing party,” in patent suits. Our conclusion that the trial court improperly granted a directed verdict in favor of the defendant defeats defendant’s position as a prevailing party on the patent claim. Thus, defendant’s claim for attorney’s fees under section 285 is moot. Defendant also challenges the trial court’s refusal to accept its motion under Fed.R.Civ.P. 37(a)(4). Rule 37(a)(4) provides for an award of expenses, including attorney’s fees, incurred in a motion to compel discovery. Under certain circumstances, the rule provides for an award in favor of the moving party if the motion is granted, and against the moving party if the motion is denied. Here, the plaintiff voluntarily withdrew its motion to compel discovery. The court neither granted nor denied the motion. The defendant contends that because the plaintiff withdrew the motion, defendant is entitled to an award of attorney’s fees and costs incurred in defending against the motion. However, the rule simply does not provide for an award under such circumstances. Local Rule 7(e) of the Northern District of Oklahoma provides that a prevailing party in a civil action must file a verified bill of costs within ten days of the entry of judgment. N.D.Okla.R. 7(e). The defendant did not file its motion for costs within ten days of the entry of judgment. In White v. New Hampshire Department of Employment Security, 455 U.S. 445, 102 S.Ct. 1162, 71 L.Ed.2d 325 (1982), the Supreme Court held that a request for attorney’s fees under 42 U.S.C. § 1988, was not a motion to alter or amend a judgment and was therefore not subject to the ten-day timeliness standard of Fed.R.Civ.P. 59(e). The Court specifically noted that district courts are “free to adopt local rules establishing standards for timely filing of requests for costs ____” Id. at 454, 102 S.Ct. at 1168. Defendant’s motion for costs was untimely under the local rules and the district court properly refused to consider it. The defendant argues that it is not barred by the ten-day rule because plaintiff’s notice of appeal, filed on the same date judgment was entered, divested the district court of jurisdiction to consider a motion for costs. Defendant-Appellee’s Brief at 46-50. This argument has already been effectively resolved against the defendant. See Cox v. Flood, 683 F.2d 330 (10th Cir.1982). AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. "Reduction to practice” is a widely recognized factor for determining when an invention is completed under section 102(b). See Stewart-Warner Corp. v. City of Pontiac, 717 F.2d 269, 273 (6th Cir.1983); Digital Equip. Corp. v. Diamond, 653 F.2d 701, 718 (1st Cir.1981); CTS Corp. v. Piher Int'l Corp., 527 F.2d 95, 103 (7th Cir.1975); Timely Prod. Corp. v. Arron, 523 F.2d 288, 302 (2d Cir.1975); In Re Yarn Processing Litig., 498 F.2d 271, 277 (5th Cir.1974). Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "manufacturing". What subcategory of business best describes this litigant? A. auto B. chemical C. drug D. food processing E. oil refining F. textile G. electronic H. alcohol or tobacco I. other J. unclear Answer:
songer_numresp	1	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Your specific task is to determine the total number of respondents in the case. If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. TINDLE et al. v. HEINER, Collector of Internal Revenue. Circuit Court of Appeals, Third Circuit. April 4, 1927. No. 3594. Internal revenue <@=37(19)— -Leasing by owner for years and subsequent sale of house held “transaction entered into for profit,” and loss on sale held deductible from income (Revenue Act 1918, § 214 [a] [5] being Comp. St. § 6336i/8g). Owner of a house worth on March 1, 1918, $120,000, and which though originally built as a residence for himself, had been abandoned as such and for a number of years had been rented, and continued to be until it was sold in 1920 for a less sum, held entitled to a deduction of the difference from gross income for that year under Revenue Act 1918, § 214 (a) (5), being Comp. St. .§ 6336%g, as a loss in a “transaction entered into for profit.” In Error to the District Court of the United States for the Western District of Pennsylvania; W. H. Seward Thomson, Judge. Action at law by James R. Tindle and another, executors of will of Philander C. Knox, deceased, against D. B. Heiner, Collector of Internal Revenue. From the judgment, plaintiffs bring error. Reversed. For opinion below, see 17 F.(2d) 522. James Walton, of Pittsburgh, Pa., for plaintiffs in error. John D. Meyer, U. S. Atty., of Pittsburgh, Pa., A. W. Gregg, Gen. Counsel, Bureau of Internal Revenue, and Frederick W. Dewart, Sp. Atty., Bureau of Internal Revenue, both of Washington, D. C., for defendant in error. Sachs & Caplan, of Pittsburgh, Pa., amici curias. Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges. BUFFINGTON, Circuit Judge. This ease centers around the word “transaction”— “transaction entered into for profit” — as used in the Revenue Act of 1918 (40 Stat. c. 18, § 214 [a] [5]; Comp. St. § 6336i/8g) in respect to losses allowed as deductions in income tax returns. What in point of fact is the transaction we are here dealing with? Was it one Congress meant to cover by this section? Viewed as an entirety the transaction involved is this: In 1887-1888 the late Philander C. Knox bought ground in the city of Pittsburgh and built a residence thereon at a cost in all of $172,000. In 1920 he sold this property and residence for $73,706.79, so that, taken as a whole, the transaction, begun in 1887 and ended in 1920, constitutes a single whole from the viewpoint of buying and selling; but, when this single whole is considered from the standpoint of the use to which the property had, meanwhile, been put, it resolves itself into two distinct and wholly different transactions: First, the property was used by him as a residence; he built the house for that purpose, and so used it until 1901. This transaction was therefore a distinctively home, residential, one. In 1901, however, he entered into national public life, and gave up the property as a residence, and never afterward occupied it. He acquired a residence by living in a different ward of the city, and retained it up to the time of his death for occasional residential and seasonal voting purposes, and, as stated by counsel at the hearing, his regular winter residence was in Washington City, where he bought and occupied a home, and his summer residence in a home he owned at Valley Forge, Pa. With the ending of his occupation of his Pittsburgh home, he rented the same on long-term leases. His first lease was in October, 1901, for 3% years, later for a term of 10 years, and thereafter for shorter terms, until the property was finally sold. With the giving up of his residence, all sentimental connection in the use of the hoqse as a home ended, and thereafter the use of the property was by others under lease from him, during the running of the first lease for 3 years, to wit, from October 1, 1901, and then from April 1, 1905, for 10 years. During the running of these leases he was, of course, unable to sell the property, by reason offihe use he was making of it and the leases he had given for his own profit. Such being the status of the transaction, the ordinary one of owning real estate for leasing purposes, the situation of the property under the second or 10-year lease when the income tax law of 1913 was passed, was a distinctively nonresidential and a distinctively business leasing of real estate for profit. We think we are justified in regarding the transaction here involved by its then and subsequent status. The situation was in no wise different than it would have been, had he always owned and used the property for renting purposes, and never for residential purposes, because the residential use had finally and forever ceased at the time of the passage of the income tax law. What, then, was the fact and status in money value of this property when the income tax law of 1913 was passed? It was a distinctively renting transaction, and in this transaction was involved the use for renting of property of the agreed upon then value of $120,000. Any system of bookkeeping in this transaction would have had charged against it an investment of $120,000, represented by real estate, a.nd the rents upon the same would have been profits. What, then, would have been the result of this transaction when it was finally closed? Clearly, instead of profits, a loss, represented by the shrinkage in value of' the property during that time-of $46,293.21. But, assuming the situation was one where some might contend, as did the court below, that the language of Congress was intended to treat the transaction as a purchase and sale of property, without reference to what its use was during the interim, it seems to us the opposite view might very reasonably be taken of holding Mr. Knox’s tenure as made up of two transactions — one, the residential one, which had ceased to exist long before, and to which the law did not apply; the other, a purely business venture, unfortunate in its results, but one which the law fairly contemplated should be offset against other items of income which the owner of the property sustained. It seems to us, therefore, with this double interpretation in the balance, that the law would then resolve that uncertainty against the government in favor of the taxpayer. Assured as we are that this latter transaction was one entered into and carried on for profit, the decedent in the assessment of his net income should have been allowed credit for the loss resulting therefrom. The judgment below will therefore be reversed, with instructions to enter judgment for the taxpayer’s estate. Question: What is the total number of respondents in the case? Answer with a number. 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. Mason K. KNUCKLES and Bernice A. Knuckles, Petitioners, v. COMMISSIONER OF INTERNAL REVENUE, Respondent. No. 7846. United States Court of Appeals Tenth Circuit. Aug. 17, 1965. William R. Bagby, Lexington, Ky., for petitioners. Anthony Z. Roisman, Atty., Dept, of Justice (Louis F. Oberdorfer, Asst. Atty. Gen., Lee A. Jackson and Melva M. Graney, Attys., Dept, of Justice, on the brief), for respondent. Before PHILLIPS, LEWIS and HILL, Circuit Judges. HILL, Circuit Judge. Petitioners, husband and wife,- by this petition for review seek to reverse a decision of the Tax Court sustaining a deficiency income tax assessment for the year 1959 in the amount of $9,081.00. On March 25, 1957, petitioner Mason K. Knuckles entered into an employment contract, effective as of November 1, 1956, with the Perpetual Life Insurance Company (hereafter referred to as Perpetual) located in Denver, Colorado. The contract employed him in an executive capacity for a period of five years and he was to receive a salary of not less than $20,597.50 per year at the monthly rate of $1,716.45. In addition, he was to receive, or in event of his death his wife or estate would receive, the sum of $225.31 per month from the time he reaches age 65 until his death or the expiration of ten years whichever is longer. This pension or retirement payment by the company was funded with a $50,000 ten-pay life insurance policy on the life of petitioner which required the company to pay a $4,402.50 premium each year. Perpetual was the beneficiary of this policy and had all the incidents of ownership therein. So far as is here material, the contract of employment also provided that the petitioner’s employment may be terminated by a majority of Perpetual’s board of directors although the salary was to continue for the five year period. Furthermore, if his employment was terminated by the board of directors, Perpetual was to continue payments into the insurance fund and the policy was to be kept in effect until November, 1961. In 1958, the board of directors of Perpetual reached the conclusion that Knuckles had mismanaged the affairs of the company to the extent that its continued existence was imperiled. Some of the directors attempted, without success, to procure Knuckles’ resignation. Finally, on December 1, 1958, the board, by formal resolution, terminated the contract of employment on the ground that Knuckles was incompetent to manage the affairs of the company. Knuckles denied his incompetency and refused to accede to the board’s resolution. On March 4, 1959, Knuckles commenced a suit upon his contract of employment against Perpetual with the summons stating in part that the action was brought to recover “the amount of $73,282.00 for Defendant’s breach of its March 25, 1957 employment contract with Plaintiff.” The filing of a complaint in the case was delayed by agreement between the parties pending the taking of depositions of several members of Perpetual’s board of directors. During this time settlement negotiations between the parties were in progress. At all times pertinent Knuckles was deeply concerned about the effect of the controversy upon his future ability to obtain employment and insisted that any settlement made vindicate him in the eyes of the public. On May 20, the board of directors of Perpetual, by formal motion, accepted Knuckles’ offer of settlement, which included a cash payment to Knuckles in the amount of $20,000 and an agreement by Perpetual to pay the eight remaining annual premiums on the life insurance policy included in the employment contract. The attorney for Perpetual was authorized to effectuate the settlement by proper legal instruments. During the course of the settlement negotiations Knuckles became emotionally disturbed and believed that his health had been impaired because of the pending controversy. In May, counsel for Knuckles first suggested that Perpetual permit recovery on the basis of a tort claim for personal injury because of the tax advantage to his client. Perpetual, at this time and during all of the negotiations, refused to recognize any liability in tort on its part to Knuckles. The settlement agreement, as outlined by Perpetual's board of directors’ motion of May 20, was finalized by formal agreement dated July 15. Between these dates negotiations between counsel were carried on in an effort to arrive at a solution of the problem posed by Knuckles insistence upon the settlement being based on his claimed personal injuries and Perpetual’s vehement denial of any liability because of personal injuries. Perpetual also refused to permit an allocation, by the settlement agreement, of the amount to be paid for Knuckles’ tax advantage. However, Knuckles was finally permitted to institute a suit based upon Perpetual’s liability for personal injury and then to dismiss the suit with prejudice. Perpetual also, by agreement with Knuckles, removed from its records the resolution of December 1, terminating Knuckles’ contract for the reasons stated and replaced it with a resolution merely terminating the contract but without stating the reasons. The Tax Court, after making particular findings of fact, made the ultimate finding that the “Amounts paid to or in behalf of petitioner in pursuance of his settlement agreement with Perpetual represented in part compensation due him under a contract of employment and in part damages due him for injury to his business reputation.” In accord therewith the deficiency in income tax for 1959 in the amount of $9,081.00, as assessed by the Commissioner, was sustained. The sole question is whether the amount of money received by taxpayer, Mason K. Knuckles, in settlement of a claim against his former employer was money received as damages for personal injuries and hence not includible in income under section 104(a) of the Internal Revenue Code (26 U.S.C.A. § 104(a). Section 61(a) of the Internal Revenue Code provides: “Except as otherwise provided in this subtitle, gross income means all income from whatever source derived * * Section 104(a) specifies that: “Except in the case of amounts attributable to (and not .in excess of) deductions allowed'under section 213 (relating to medical, etc., expenses) for any prior taxable year, gross income does not include— (2) the amount of any damages received (whether by suit or agreement) on account of personal injuries or sickness; * * We observe at the outset that this is purely a fact case and that we cannot overturn the findings of fact made by the Tax Court unless we are able to conclude that they are clearly erroneous. Commissioner of Internal Revenue v. Duberstein, 363 U.S. 278, 80 S.Ct. 1190, 4 L.Ed.2d 1218 (1960); Anson v. C. I. R., 10 Cir., 328 F.2d 703. We agree with respondent that unless the payments made to the taxpayer were “received * * * on account of personal injuries” the amount paid is includible in his gross income. The most important fact in making that determination, in the absence of an express personal injury settlement agreement, is the intent of the payor as to the purpose in making the payment. Agar v. C. I. R., 2d Cir., 290 F.2d 283. In this connection, the evidence shows that Perpetual .did not, at any time, acknowledge any possible liability for personal injuries to Knuckles and in fact consistently denied any such liability. No proof was ever presented to Perpetual of the existence of any personal injuries from which it could evaluate a proper settlement. The Tax Court expressly found that the settlement payment was made by Perpetual because “the board felt settlement with petitioner had to be effectuated because the publicity incident to a trial of petitioner’s claims would * * * endanger the continued existence of Perpetual.” This important finding has full support in the testimony of the attorney for Perpetual as well as in the minutes of Perpetual’s board of directors. Other important findings by the Tax Court that have ample supporting evidence are: “Petitioner’s primary purpose in instituting suit against Perpetual was to collect amounts due him under his employment contractthat Knuckles became “increasingly concerned with his inability to obtain employment in the insurance field and with the fact that he no longer enjoyed his former good reputation in his community;” that Knuckles consistently “refused to make any settlement except under such basis that he would be vindicated ‘in the eyes of the public and the insurance world; ’ ” that no mention of any claim for personal injuries was made by petitioner’s counsel until May, 1959, which was about the same time as a settlement figure had been agreed upon and was over two months after the suit on the employment contract was instituted; petitioner’s counsel, at that time, mentioned his client’s tax advantage, if the settlement was based on personal injuries; Perpetual, at the time of settlement, refused to make any allocation of the agreed settlement amount solely for petitioner’s tax advantage; and “that the amounts paid petitioner * * * were to release that company from any possible liability under its employment contract and that petitioner’s insistence upon settlement based on a tort claim for personal injury was an afterthought brought into being by the possible tax advantage which might result.” After a careful consideration of the record before us, we must conclude that the Tax Court’s findings of fact are supported by the evidence. It is true that petitioner’s contention finds some support in his own testimony and the testimony of his two attorneys but the Tax Court also had the testimony of Perpetual’s attorney. His testimony together with the exhibits received in evidence .in the case constitutes sufficient evidence to support the findings. The decision of the Tax Court is affirmed. . Bernice Knuckles is a party here by virtue of having filed a joint return for the tax year 1959 with her spouse. 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_state	09	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". F. A. R. LIQUIDATING CORPORATION v. Herbert BROWNELL, Jr., Attorney General of the United States of America, Successor to the Alien Property Custodian, Appellant. No. 11076. United States Court of Appeals Third Circuit. Submitted June 8, 1955. Decided June 15, 1955. Irwin A. Seibel, Washington, D. C. (Dallas S. Townsend, Asst. Atty. Gen., Leonard G. Hagner, U. S. Atty. for Dist. of Delaware, Wilmington, Del., James D. Hill, George B. Searls, Attys., Dept, of Justice, Washington, D. C., on the brief), for appellant. E. Ennalls Berl, Wilmington, Del. (Berl, Potter & Anderson, Wilmington, Del., Ernest S. Meyers, Lawrence R. Eno, Laporte & Meyers, New York City, on the brief), for appellee. Before MARIS, GOODRICH and KALODNER, Circuit Judges. PER CURIAM. In this ease, which was decided by this court on January 13, 1954, 209 F.2d 375, the defendant has filed a motion to recall and clarify the mandate of this court which reversed the judgment of the district court and remanded the cause with instructions to proceed in accordance with the opinion of this court. The district court in an opinion, 130 F.Supp. 691, filed April 18, 1955 rightly concluded that the issue, and the only one remaining in the case, to be tried on remand was whether the cable of acceptance of Fernseh, G.m.b.H., was sent prior to 1:10 P.M. (E.S.T.) in Washington, D. C., June 14, 1941, and hence prior to the effective time of Executive Order 8785. Under the mandate the defendant may not now assert, as he seeks for the first time to do, that the time of the completion of the contract is to be determined by the application of German law to be the time of the receipt of the cable of acceptance by the plaintiff instead of the time of its sending. The motion will be denied. 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_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. RICHARDSON, SECRETARY OF HEALTH, EDUCATION, AND WELFARE v. WRIGHT et al. No. 70-161. Argued January 13, 1972 Decided Febrary 24, 1972 Assistant Attorney General Gray argued the cause for appellant in No. 70-151 and for appellee in No. 70-5211. With him on the briefs were Solicitor General Griswold, Kathryn H. Baldwin, Wilmot R. Hastings, Edwin H. Yourman, and Paul Merlin. Robert N. Sayler argued the cause and filed briefs for appellees in No. 70-161 and for appellants in No. 70-5211. Briefs of amici curiae in both cases were filed by Thomas L. Fike for the Legal Aid Society of Alameda County; by David H. Marlin and Jonathan A. Weiss for the National Council of Senior Citizens; and by Albert C. Neimeth for Luella H. Mills et al. Bernard P. Becker and Harvey N. Schmidt filed a brief for Stella Van Guilder et al. as amici curiae. Together with No. 70-5211, Wright et al. v. Richardson, Secretary of Health, Education, and Welfare, also on appeal from the same court. Per Curiam. We noted probable jurisdiction of these appeals, 404 U. S. 819 (1971), to consider the applicability of Gold berg v. Kelly, 397 U. S. 254 (1970), to the suspension and termination of disability benefit payments pursuant to § 225 of the Social Security Act, 70 Stat. 817, 42 U. S. C. § 425, and implementing regulations of the Department of Health, Education, and Welfare. Shortly before oral argument, we were advised that the Secretary had adopted new regulations, effective December 27, 1971, governing the procedures to be followed by the Social Security Administration in determining whether to suspend or terminate disability benefits. These procedures include the requirement that a recipient of benefits be given notice of a proposed suspension and the reasons therefor, plus an opportunity to submit rebuttal evidence. In light of that development, we believe that the appropriate course is to withhold judicial action pending reprocessing, under the new regulations, of the determinations here in dispute. If that process results in a determination of entitlement to disability benefits, there will be no need to consider the constitutional claim that claimants are entitled to an opportunity to make an oral presentation. In the context of a comprehensive complex administrative program, the administrative process must have a reasonable opportunity to evolve procedures to meet needs as they arise. Accordingly, we vacate the judgment of the District Court for the District of Columbia, 321 F. Supp. 383 (1971), with direction to that court to remand the cause to the Secretary and to retain jurisdiction for such further proceedings, if any, as may be necessary upon completion of the administrative procedure. Vacated and remanded. 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_respond1_5_2	F	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "state government (includes territories & commonwealths)". Your task is to determine which category of state government best describes this litigant. Paul Edward ARCHIE, et al., Plaintiffs, Paul Edward Archie, Plaintiff-Appellant, v. David A. CHRISTIAN, et al., Defendants-Appellees. No. 84-2175 Summary Calendar. United States Court of Appeals, Fifth Circuit. Aug. 19, 1985. Paul E. Archie pro se. Jim Mattox, Atty. Gen., M. Lawrence Wells, Asst. Atty. Gen., Austin, Tex., for defendants-appellees. Before CLARK, Chief Judge, WILLIAMS, and HIGGINBOTHAM, Circuit Judges. PER CURIAM: Plaintiff appeals the judgment dismissing his claims under 42 U.S.C. § 1983. We vacate and remand. I Archie sued the defendants for damages under 42 U.S.C. § 1983 for violating his civil rights while he was confined in a Texas prison. The case was tried to a jury with a United States Magistrate presiding, despite defendants’ objection and demand for an Article III judge. The jury found in Archie’s favor on only two of his claims and declined to award any monetary damages. In his post-trial memorandum to the district court, the magistrate recommended (1) that defendants’ objection to proceeding before a magistrate be overruled on the grounds that his presiding was authorized by 28 U.S.C. § 636(b)(1) and (b)(3) and (2) that the jury’s findings be adopted. After considering plaintiff’s objections to the magistrate’s report, the district judge adopted the magistrate’s findings and recommendations as the findings and conclusions of the court and entered final judgment dismissing the action. II We will not reach the merits of this case or the arguments advanced by the parties on appeal. The judgment must be vacated because the magistrate was without jurisdiction to conduct these proceedings. Accordingly, the final judgment entered was not valid. Although neither party has raised this question, we are obliged to consider jurisdictional questions sua sponte, if necessary. Giannakos v. M/V BRAVO TRADER, 762 F.2d 1295, 1297 (5th Cir.1985); Parks v. Collins, 761 F.2d 1101, 1104 n. 3 (5th Cir.1985); In re Morrissey, 717 F.2d 100, 103 (3d Cir.1983). Ill The magistrate’s conclusion, adopted by the district court, that sections 636(b)(1)(B) and (b)(3) authorize the nonconsensual reference of a prisoner suit to a magistrate for jury trial was rejected by this court in a decision issued shortly after judgment was entered in the present case. Ford v. Estelle, 740 F.2d 374, 380 (5th Cir.1984). Section 636(b)(1)(B) authorizes the non-consensual reference to a magistrate of a prisoner petition challenging the conditions of confinement so that the magistrate may conduct hearings and submit proposed findings of fact and recommendations for disposition to the district court. The district court may accept, reject, or modify this report. If a party objects to any portion of it, the district judge must make a de novo determination of that issue. § 636(b)(1). Ford concluded that a jury trial would not fit into the structure of this subsection of the Magistrate’s Act because such a trial involves factfinding “intrinsically incapable” of the required de novo review required because of the special respect to which a jury verdict is entitled. 740 F.2d at 380. For the same reason Ford also held that section 636(b)(3), which allows the district court to assign to the magistrate any additional duties not inconsistent with federal law or the Constitution, does not authorize the reference of a jury trial without the parties’ consent. Id. at 381. Section 636(b) was construed to permit nonconsensual reference only of matters which would not be submitted to a jury. Id. at 380. Ford established that a case may be referred to a magistrate for a jury trial only under section 636(c), which requires the consent of the parties. Id. at 380. Defendants’ objection negated the required consent. Moreover, the record gives no indication whether plaintiff objected or consented. His silence cannot be construed as consent because section 636(c) requires “clear and unambiguous” consent before the magistrate is authorized to act. Parks v. Collins, 761 F.2d 1101, 1106. This consent must be explicit and cannot be inferred from the conduct of the parties. Id.; Trufant v. Autocon, Inc., 729 F.2d 308, 309 (5th Cir.1984). Thus, the required consent of the parties was clearly lacking. Section 636(c) requires that the magistrate presiding over the trial enter final judgment. Lack of consent by the parties, however, deprives him of that authority. For the reasons set forth in Ford, the district court cannot enter final judgment after a jury trial before the magistrate based on the magistrate’s recommendations pursuant to section 636(b). The manner in which this case was tried precludes both the magistrate and the district judge from entering a valid final judgment. There can be no final judgment in this case without a new trial before an Article III judge, unless both parties properly consent to proceedings before a magistrate. IV The judgment of the district court is vacated and the cause is remanded for further proceedings not inconsistent with this opinion. VACATED and REMANDED. Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "state government (includes territories & commonwealths)". Which category of state government best describes this litigant? A. legislative B. executive/administrative C. bureaucracy providing services D. bureaucracy in charge of regulation E. bureaucracy in charge of general administration F. judicial G. other Answer:
songer_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. BOOTH v. HAGGARD et al. No. 14105. United States Court of Appeals Eighth Circuit. Oct. 17, 1950. Fred Louis, Jr., Harlan, Iowa (Bennett Cullison, Harlan, Iowa, was with him on the brief), for appellant. Luke E. Linnan, Algona, Iowa (Joe E. Lynch, Algona, Iowa, was with him on the-■brief), fo-r appellees. Before GARDNER, Chief Judge, THOMAS, Circuit Judge, and DEWEY, District. Judge. THOMAS, Circuit Judge, delivered the-opinion of the Court. This is a suit for an injunction and for damages and profits for the alleged infringement of a copyright under the Act of' July 30, 1947, c. 391, 61 Stat. 652, 17 U.S. C.A. § 101. The defendants moved for judgment on the pleadings on the ground that Exhibit 1 attached to plaintiff’s petition and made a part thereof, being a copy of' plaintiff’s alleged copyrighted book, shows conclusively that the title page is on the front cover of the book and that no notice-of copyright has been applied on the title-page or on the page immediately following-as required by 17 U.S.C.A. § 20. Upon the filing of the motion the court announced that it would regard and treat the motion as a motion for summary judgment and that the parties should and could introduce evidence bearing upon the issue-of copyright, which issue was presented by the pleadings. The parties thereupon introduced in evidence a copy of the book: claimed by plaintiff to have been infringed: by defendants. The court made findings of fact and conclusions of law and entered Judgment for defendants, and plaintiff appeals. The court found that plaintiff received a certificate of registration from the Register of Copyrights of the United States 'for the book involved dated June 22, 1948; that the title of the publication claimed to have been infringed is stated in the complaint to be “1948-49 Kossuth County TAM Service”; and that no other title 'is given in the complaint ; that the only place where the quoted title appears in the book is on the leaf which constitutes the front cover of the book; that the leaf which 'constitutes the front cover of the book is the title page thereof; and that no notice of copyright was given by plaintiff on the title page nor o.n the page immediately following on any copy of the book claimed to 'be infringed. And the court concluded that the notice of copyright given did not comply with the provisions of 17 U.S.C.A. § 20; and that failure to comply therewith prevents the plaintiff from recovering and is determinative of the case. The parties agree that the only question for decision is whether the title page of plaintiff’s book is page 3, as claimed by plaintiff, or the front cover, as found by the court and claimed by defendants. 'Title 17 U.S.C.A. § 20 provides: “The notice of copyright shall be applied, in the case of a book or other printed publication, upon its title page or the page immediately following * * . One notice of copyright in each volume * * published shall suffice.”’ While a slight variation from the form of notice may not be fatal there must be no substantial deviation. To be legally effective the notice must satisfy the prescriptions of the statute. Advertisers Exchange, Inc., v. Anderson, 8 Cir., 144 F.2d 907; Higgins v. Keuffel, 140 U.S. 428, 434, 11 S.Ct. 731, 35 L.Ed. 470; Mifflin v. R. H. White Company, 190 U.S. 260, 264, 23 S.Ct. 769, 47 L.Ed. 1040. The plaintiff contends that the court erred: (1) in determining the title of the book; (2) in holding that the only place -where the title appears is on page 1, or the front cover page; (3) that the front cover is the title page; and (4) that no notice of copyright was given by plaintiff on the title page. The only evidence before the court was a copy of the book itself. The court’s findings are based upon the complaint and the copy of the book in evidence. The book is a comparatively small book bound with a paper cover. In paragraphs 2 and 5 of the complaint it is averred that the book is entitled: “1948-49 Kossuth County TAM Service.” On the front cover is printed in bold type: “1948-1949 “Kossuth County, Iowa “TAM Service.” The inside of the front cover contains no printed matter. Page 1 contains a map of Kossuth County, Iowa, only. Page 2 is blank, containing no printed matter. Page 3 contains a full page of printed text at the top of which appears in lower case type what plaintiff contends is the title, as follows: “The 1948-1949 “Rural TAM “For Kossuth County, Iowa.”1 At the bottom of this page is the copyright notice as follows: “Copyright 1948, R. C. Booth Enterprises, Harlan, Iowa.” In determining whether the front cover page or page 3 of the book is the title page the court of necessity was required to consider the printed texts of those pages and the arrangement of the printed matter thereon and their general appearance. And since there was a substantial difference between them in every respect the court was justified in considering the claim of plaintiff set out in the complaint. Applying these tests, we cannot say that the finding that the front cover page is the title page is erroneous. The finding is supported by substantial evidence and is in accord with the averments of the complaint. In this situation the plaintiff should not be heard to complain. Toksvig v. Bruce Pub. Co., et al., 7 Cir., 181 F.2d 664, 666. 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:
sc_petitioner	028	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the petitioner of the case. The petitioner is the party who petitioned the Supreme Court to review the case. This party is variously known as the petitioner or the appellant. Characterize the petitioner as the Court's opinion identifies them. Identify the petitioner by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer. Also note that the Court's characterization of the parties applies whether the petitioner is actually single entity or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single petitioner, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name. DUTTON, WARDEN v. EVANS No. 10. Argued October 15, 1969 — Reargued October 15, 1970— Decided December 15, 1970 Stewart, J., announced the Court’s judgment and delivered an opinion, in which Burger, C. J., and White and BlackmuN, JJ., joined. Blackmun, J., filed a concurring opinion, in which Burger, C. J., joined, post, p. 90. Harlan, J., filed an opinion concurring in the result, post, p. 93. Marshall, J., filed a dissenting.opinon, in which Black, Douglas, and Brennan, JJ., joined, post, p. 100. Alfred L. Evans, Jr., Assistant Attorney General of Georgia, reargued the cause for appellant. With him on the brief were Arthur K. Bolton, Attorney General, and Marion O. Gordon and Mathew Robins, Assistant Attorneys General. Robert B. Thompson reargued the cause and filed a brief for appellee. Solicitor General Griswold, by invitation of the Court, argued the cause for the United States as amicus curiae on the reargument. With him on the brief were Assistant Attorney General Wilson, Jerome M. Feit, Beatrice Rosenberg, and Roger A. Pauley. Mr. Justice Stewabt announced the judgment.of the Court and an opinion in which The Chief Justice, Me. Justice White, and Mr. Justice Blackmun join. Early on an April morning in 1964, three police officers were brutally murdered in Gwinnett County, Georgia. Their bodies were found a few hours later, handcuffed together in a pine thicket, each with multiple gunshot wounds in the back of the head. After many months of investigation, Georgia authorities charged the appel-lee, Evans, and two other men, Wade Truett and Yenson Williams, with the officers’ murders. Evans and Williams were indicted by a grand jury; Truett was granted immunity from prosecution in return for his testimony. Evans pleaded not guilty and exercised his right under Georgia law: to be tried separately. After a jury trial, he was convicted of murder and sentenced to death. The judgment of conviction was affirmed by the Supreme Court of Georgia, and this Court denied certiorari. Evans then brought the present habeas corpus proceeding in a federal district court, alleging, among other things, that he had been denied the constitutional right of confrontation at his trial. The District Court denied the writ, but the Court of Appeals for the Fifth Circuit reversed, holding that Georgia had, indeed, denied Evans the right, guaranteed' by the Sixth and Fourteenth Amendments, “to be confronted by the witnesses against him.” From that judgment an appeal was brought to this Court, and we noted probable jurisdiction. The case was originally argued last Term, but was set fór reargument. 397 U. S. 1000. In order. to understand the context of the constitutional question before us, a brief review of the proceedings at Evans’ trial is necessary. The principal prosecution witness at the trial was Truett, the alleged accomplice who had been granted immunity. Truett described At length and in detail the circumstances surrounding the murder of the police officers. He testified that he, along with Evans and Williams, had been engaged in switching the license plates on a stolen car parked on a back road in Gwinnett County when they were accosted by the three police officers. As the youngest of the officers leaned in front of Evans to inspect the ignition switch on the car, Evans grabbed the officer’s gun from its holster. Evans and Williams then disarmed the other officers at gunpoint, and handcuffed the three of them together. They then took the officers into the woods and killed them by firing several bullets into their bodies at extremely, close range. In addition to Truett, 19 other witnesses testified for the prosecution. Defense counsel was given full opportunity to cross-examine each witness, and he exercised that opportunity with respect to most of them. One of the 20 prosecution witnesses was a man named Shaw. He testified that he. and Williams had been fellow prisoners in the federal penitentiary in Atlanta, Georgia, at the time Williams was brought to Gwinnett County to be arraigned on the charges of murdering the police officers. Shaw said that when Williams was returned to the penitentiary from the arraignment, he had asked Williams: “How did you make out in court?” and that Williams had responded, “If it hadn’t been for that dirty son-of-a-bitch Alex Evans, we wouldn’t be in this now.” Defense counsel objected to the introduction of this testimony upon the ground that it was hearsay and thus violative of Evans’ right of confrontation. After the objection was overruled, counsel cross-examined Shaw at length. The testimony of Shaw relating what he said Williams had told him was admitted by the Georgia trial court, and its admission upheld by the Georgia Supreme Court, upon the basis of a Georgia statute that provides: “After the fact of conspiracy shall be proved, the declarations by any one of the conspirators during the pendency of the criminal project shall be- admissible against all.” As the appellate court put it: “ ‘The rule is that so long as the conspiracy to conceal the fact that a crime has been committed or the identity of the perpetrators of the offense continues, the parties to such conspiracy are to be considered so much a unit that the declarations of either are admissible against the other.’ The defendant, and his co-conspirator, Williams, at the ■time this statement was made, were still concealing their identity, keeping secret the fact that they had killed the deceased, if they -had, and denying their guilt. There was evidence sufficient to establish a prima facie case of conspiracy to steal the automobile and the killing of the deceased, by the conspirators while carrying out the conspiracy, and the statement by Williams made after the actual commission of the crime, but while the conspiracy continued was admissible.” (Citations omitted.) This' holding was in accord with a consistent line of Georgia decisions construing the state statute. See, e. g., Chatterton v. State, 221 Ga. 424, 144 S. E. 2d 726, cert. denied, 384 U. S. 1015; Burns v. State, 191 Ga. 60, 73, 11 S. E. 2d 350, 358. It was the admission of this testimony of the- witness Shaw that formed the basis for the appellee’s claim in the present habeas corpus proceeding that he had been denied the constitutional right of confrontation in the Georgia trial court. In upholding that claim, the Court of Appeals for the Fifth Circuit regarded its duty to be “not only to interpret the framers’ original concept in light of historical developments, but also to translate into due-process terms the constitutional boundaries of the hearsay rule.” (Footnotes omitted.) The court upheld the appellee’s constitutional claim because it could.find no “salient and cogent reasons” for the exception to the hearsay rule Georgia applied in the present case, an exception that the court pointed out was broader than that applicable to conspiracy trials in the federal courts. The question before us, then, is whether in the circumstances of this case the Court of Appeals was correct in holding that Evans’ murder conviction had to be set aside because of the admission of Shaw’s testimony. ■ In considering this question, we start by recognizing that this Court has squarely held that “the Sixth Amendment’s right of an accused to confront the witnesses against him is... a fundamental right... made obligatory on the States by the Fourteenth Amendment.” Pointer v. Texas, 380 U. S. 400, 403. See also Douglas v. Alabama, 380 U. S. 415; Brookhart v. Janis, 384 U. S. 1; Barber v. Page, 390 U. S. 719; Roberts v. Russell, 392 U. S. 293; Illinois v. Allen, 397 U. S. 337; California v. Green, 399 U. S. 149. But that is no more than the beginning of our inquiry. I It is not argued, nor could it be, that the constitutional right to confrontation requires that no hearsay evidence can ever.be introduced. In the Pointer case itself, we referred to the decisions of this Court that have approved the admission of hearsay: “This Court has recognized the admissibility against an accused of dying declarations, Mattox v. United States, 146 U. S. 140, 151, and of testimony of a deceased witness who has testified at a former trial, Mattox v. United States, 156 U. S. 237, 240-244. See also Dowdell v. United States, supra, 221 U. S., at 330; Kirby v. United States, supra, 174 U. S., at 61.... There are other analogous situations which might not fall within the scope of the constitutional rule requiring confrontation of witnesses.” The argument seems to be, rather, that in any given case the Constitution requires a reappraisal of every exception to the hearsay rule, no matter how long established, in order to determine whether, in the words of the Court of Appeals, it is supported by “salient and cogent reasons.” The logic of that position would seem to require a constitutional reassessment of every established hearsay exception, federal or state, but in the present case it is argued only that the hearsay exception applied by Georgia is constitutionally invalid because it does not identically conform to the hearsay exception applicable to conspiracy trials in the federal courts. Ap-pellee does not challenge and we do not question the validity of the coconspirator exception applied in the federal courts. That the two evidentiary rules are not identical must be readily conceded. It is settled that in federal conspiracy trials the hearsay exception that allows evidence of an out-of-court statement of one conspirator to he admitted against his fellow conspirators applies only if the statement was made in the course of and in furtherance of the conspiracy, and not during a subsequent period when the conspirators were engaged in nothing more than concealment of the criminal enterprise. Lutwak v. United States, 344 U. S. 604; Krulewitch v. United States, 336 U. S. 440. The hearsay exception that Georgia applied in the present case, on the other hand,-.permits the introduction of evidence of such an out-of-court statement even though made during the conceálment phase of the conspiracy. But it does not follow that because the. federal courts have declined to extend the hearsay exception to include out-of-court statements made during the concealment phase of - a conspiracy, such an extension automatically violates the Confrontation Clause. Last Term in California v. Green, 399 U. S. 149, we said: “Our task in this case -is not to decide which of these positions, purely as a matter of the law of evidence, is the sounder. The issue before us is the considerably narrower one of whether a defendant’s constitutional right ‘to be confronted with the witnesses against him’ is necessarily inconsistent with a State’s decision to change its hearsay rules.... While it may readily be conceded that hearsay rules and the Confrontation Clause are generally designed to protect similar values, it is quite a different thing, to suggest that the overlap is complete and that the Confrontation Clause is nothing more or less than a codification of the rules, of hearsay and their exceptions as they existed historically at common law. Our decisions have never established such a congruence; indeed, we have more than once found a violation of confrontation values even though the statements in issue were admitted under an arguably recognized hearsay exception. The converse is equally true: merely because evidence is admitted in violation of a long-established hearsay rule does not lead to the automatic conclusion that confrontation rights have been denied.” Id., at 155-156 (citations and footnote omitted). These observations have particular force in the present case. For this Court has never indicated that the limited contours of the hearsay exception in federal conspiracy trials are required by the Sixth Amendment’s Confrontation Clause. To the contrary, the limits of this hearsay exception have simply been defined by the Court in the exercise of its rule-making power in the area of the federal law of evidence. It is clear that the limited scope of the hearsay exception in federal conspiracy trials is a product, not of the Sixth Amendment, but of the Court’s “disfavor” of “attempts to broaden the already pervasive and wide-sweeping nets of conspiracy prosecutions.” Grunewald v. United States, 353 U. S. 391, 404. As Grunewald, Krulewitch, and'other cases in this Court make clear, the evidentiary rule is intertwined, not only with the federal substantive law of conspiracy, but also with such related, issues as the impact of the statute of limitations upon conspiracy prosecutions. In the case before us such policy questions are not present. Evans was not prosecuted for conspiracy in the Georgia court, but for the substantive offense of murder. At his trial the State permitted the introduction of evidence under a long-established and well-recognized rule of state law. We cannot say that the evidentiary rule applied by Georgia violates the Constitution merely because it does not exactly coincide with the hearsay exception applicable in the decidedly different context of a federal prosecution for the substantive offense of conspiracy. II It is argued, alternatively, that in any event Evans’ conviction must- be set aside under the impact of our recent decisions that have reversed state court convictions because of the denial of the constitutional right of confrontation. The cases upon which the appellee Evans primarily relies are Pointer v. Texas, supra; Doug las v. Alabama, supra; Brookhart v. Janis, supra; Barber v. Page, supra; and Roberts v. Russell, supra. In the Pointer case it appeared that a man named Phillips had been the victim of a robbery in Texas. At a preliminary hearing, Phillips “as chief witness for the State gave his version of the alleged robbery in detail, identifying petitioner as the man who had fobbed him at gunpoint.” 380 U. S., at 401. Pointer,had no lawyer at this hearing and did not try to cross-examine Phillips. At Pointer’s subsequent trial the prosecution was permitted to introduce the transcript of Phillips’ testimony given at the preliminary hearing. Thus, as this Court held, the State’s “use of the transcript of that statement at the trial denied petitioner any opportunity to have the benefit of counsel’s cross-examination of the principal witness against him.” 380 tr. S., at 403. The Douglas casé, decided the same day as Pointer, involved an even more flagrant violation of the defendant’s right of confrontation. For at Douglas’ trial the prosecutor himself was permitted to read an “entire document” purporting to be an accomplice’s written confession after the accomplice had refused to testify in reliance upon his privilege against compulsory self-incrimination. “The statements from the document as read by the Solicitor recited in considerable detail the circumstances leading to and surrounding the alleged crime; of crucial importance, they named the petitioner as the person who fired the shotgun blast which wounded the victim.” 380 U. S., at 417. In reversing Douglas’ conviction, this Court pointed out that the accomplice’s reliance upon the privilege against compulsory self-incrimination “created a situation in which the jury might improperly infer both that the statement had been made and that it was true.” 380 U. S., at 419. Yet, since the prosecutor was “not a witness, the inference from his reading that [the accomplice] made the statement could not be tested by cross-examination. Similarly, [the accomplice] could not be cross-examined on a statement imputed to but not admitted by him.” Ibid. Brookhart v. Janis and Barber v. Page are even further afield. In Brookhart it appeared that the petitioner had been “denied the right to cross-examine at all any witnesses who testified against him,” and that, additionally, “there was introduced as evidence against him an alleged confession, made out of court by one of his co-defendants... who did not testify in court.” 384 U. S., at 4. The only issue in the case was one of waiver, since the State properly conceded that such a wholesale and complete “denial of cross-examination without waiver... would be constitutional error of the first magnitude....” 384 U. S., at 3. In Barber the “principal evidence” against the petitioner was a transcript of preliminary hearing testimony admitted by the trial judge under an exception to the hearsay rule that, by its terms, was applicable only if the witness was “unavailable.” This hearsay exception “has been explained as arising from necessity....” 390 U. S., at 722, and we decided only that Oklahoma could not invoke that concept to use the preliminary hearing transcript in that case without showing “a good-faith effort” to obtain the witness’ presence at the trial. Id., at 725. In Roberts v. Russell we held that the doctrine of Bruton v. United States, 391 U. S. 123, was applicable to the States and was to be given retroactive effect. But Bruton was a case far different from the one now before us. In that case there was a joint trial of the petitioner and a codefendant, coincidentally named Evans, upon a charge of armed postal robbery. A postal inspector testified that Evans had confessed to him that Evans and the petitioner had committed the robbery. This evidence was, concededly, wholly inadmissible against the petitioner. Evans did not testify. Although the trial judge instructed the jury to disregard the evidence of Evans’ confession in considering the question of the petitioner’s guilt, we reversed the petitioner’s conviction. The primary focus of the Court’s' opinion in Bruton was upon the issue-of whether the jury in the circumstances presented could reasonably be expected to have followed the trial judge’s, instructions. The Court found that “[t]he risk'of prejudice in petitioner’s case was even more serious than in Douglas,” because “the powerfully incriminating extrajudicial statements of a codefendant, who stands accused side-by-side with the defendant, are deliberately spread before the jury in a joint trial.” 391 IT. S., at 127, 135-136. Accordingly, we held.that “in the context of a joint trial we cannot accept limiting instructions as an adequate substitute for petitioner’s constitutional right of cross-examination.” 391 U. S., at 137. There was not before us in Bruton “any recognized exception to the hearsay rule,” and the Court was careful to emphasize that “we intimate no view whatever that such exceptions necessarily raise questions under the Confrontation Clause.” 391., U. S., at 128 n. 3. It seems apparent Ijhat the Sixth Amendment’s Confrontation Clause and the evidentiary.hearsay rule stem from the same roots. B^t this Court has never equated the two, and we decline ten do-, so now. We confine ourselves, instead, to déciding the case before us. This case does not involve evidence in any sense “crucial” or “devastating,” as did all the cases just discussed. It does not involve the use, or misuse, of a confession made in the coercive atmosphere of official interrogation, as did Douglas, Brookhart, Bruton, and Roberts. It does not involve any suggestion of prosecutorial misconduct or even negligence, as did Pointer, Douglas, and Barber. It does not involve the use by the prosecution of a paper transcript, as did Pointer, Brookhart, and Barber. It does not involve a joint trial, as did Bruton and Roberts. And it certainly. does not involve the wholesale denial of cross-examination, aá did Brookhart. In the trial of this case no less than 20 witnesses appeared and testified for the prosecution. Evans’ counsel was given full opportunity to cross-examine every one of them.. The most important witness, by far, was the eyewitness who described all the details of the triple murder and who was cross-examined at great length. Of the 19 other witnesses, the testimony of but a single one is at issue here. That one witness testified to a brief conversation about Evans he had had with a fellow prisoner in the Atlanta Penitentiary. The witness was vigorously and effectively cross-examined by defense counsel. His testimony, which was of peripheral significance at most, was admitted in evidence under a co-conspirator exception to the hearsay rule long established under state statutory law. The Georgia statute can obviously have many applications consistent with the Confrontation Clause, and we conclude that its application in the circumstances of this case did not violate the Constitution. Evans was not deprived of any right of confrontation on the issue of whether Williams actually made the statement related by Shaw. Neither a’ hearsay nor a confrontation question would arise had Shaw’s testimony been used to prove merely that the statement had been made. The hearsay rule does not prevent a witness from testifying as to what he has heard; it is rather a restriction on the proof of fact through extrajudicial statements. From the viewpoint of the Confrontation Clause, a witness under oath, subject to cross-examination, and whose demeanor can be observed by the trier of-fact, is a reliable informant not only as to what he has seen but also as to what he has heard. The confrontation issue arises because the jury was being invited to infer that Williams had implicitly identified Evans as the perpetrator of the murder when he blamed Evans for his predicament. But we conclude that there was no denial of the right of confrontation as to this question of identity. First, the statement contained no express assertion about past fact, and consequently it carried on its face a warning to the jury against giving the statement undue weight. Second, Williams’ personal knowledge of the identity and role of the other participants in the triple murder is abundantly established by Truett’s testimony and by Williams’ prior conviction.- It is inconceivable that cross-examination could have shown that Williams was not in a position to know whether or not Evans was involved in the murder. Third, the possibility that Williams’ statement was founded on faulty recollection is remote in the extreme. Fourth, the circumstances under which Williams made the statement were such as to give reason to suppose that Williams did not misrepresent Evans’ involvement in. the crime. These circumstances go beyond a showing that Williams had no apparent reason to lie to Shaw. His statement was spontaneous, and it was against his penal.interest to make it. These are indicia of reliability which have been widely viewed as determinative of whether a statement may be placed before the jury though there is no confrontation of the declarant. The decisions of this Court make it clear that the mission of the Confrontation Clause is to advance a practical concern for the accuracy of the truth-determining process in criminal trials by assuring that “the trier of fact [has] a satisfactory basis for evaluating the truth of the prior statement.” California v. Green, 399 U. S., at 161. Evans exercised, and. exercised effectively, his right to confrontation on the factual question whether Shaw had actually.heard Williams make the statement Shaw related. And the possibility that cross-examination of Williams could conceivably have shown the jury that the statement, though Question: Who is the petitioner of the case? 001. attorney general of the United States, or his office 002. specified state board or department of education 003. city, town, township, village, or borough government or governmental unit 004. state commission, board, committee, or authority 005. county government or county governmental unit, except school district 006. court or judicial district 007. state department or agency 008. governmental employee or job applicant 009. female governmental employee or job applicant 010. minority governmental employee or job applicant 011. minority female governmental employee or job applicant 012. not listed among agencies in the first Administrative Action variable 013. retired or former governmental employee 014. U.S. House of Representatives 015. interstate compact 016. judge 017. state legislature, house, or committee 018. local governmental unit other than a county, city, town, township, village, or borough 019. governmental official, or an official of an agency established under an interstate compact 020. state or U.S. supreme court 021. local school district or board of education 022. U.S. Senate 023. U.S. senator 024. foreign nation or instrumentality 025. state or local governmental taxpayer, or executor of the estate of 026. state college or university 027. United States 028. State 029. person accused, indicted, or suspected of crime 030. advertising business or agency 031. agent, fiduciary, trustee, or executor 032. airplane manufacturer, or manufacturer of parts of airplanes 033. airline 034. distributor, importer, or exporter of alcoholic beverages 035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked 036. American Medical Association 037. National Railroad Passenger Corp. 038. amusement establishment, or recreational facility 039. arrested person, or pretrial detainee 040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association 041. author, copyright holder 042. bank, savings and loan, credit union, investment company 043. bankrupt person or business, or business in reorganization 044. establishment serving liquor by the glass, or package liquor store 045. water transportation, stevedore 046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines 047. brewery, distillery 048. broker, stock exchange, investment or securities firm 049. construction industry 050. bus or motorized passenger transportation vehicle 051. business, corporation 052. buyer, purchaser 053. cable TV 054. car dealer 055. person convicted of crime 056. tangible property, other than real estate, including contraband 057. chemical company 058. child, children, including adopted or illegitimate 059. religious organization, institution, or person 060. private club or facility 061. coal company or coal mine operator 062. computer business or manufacturer, hardware or software 063. consumer, consumer organization 064. creditor, including institution appearing as such; e.g., a finance company 065. person allegedly criminally insane or mentally incompetent to stand trial 066. defendant 067. debtor 068. real estate developer 069. disabled person or disability benefit claimant 070. distributor 071. person subject to selective service, including conscientious objector 072. drug manufacturer 073. druggist, pharmacist, pharmacy 074. employee, or job applicant, including beneficiaries of 075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan 076. electric equipment manufacturer 077. electric or hydroelectric power utility, power cooperative, or gas and electric company 078. eleemosynary institution or person 079. environmental organization 080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer. 081. farmer, farm worker, or farm organization 082. father 083. female employee or job applicant 084. female 085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of 086. fisherman or fishing company 087. food, meat packing, or processing company, stockyard 088. foreign (non-American) nongovernmental entity 089. franchiser 090. franchisee 091. lesbian, gay, bisexual, transexual person or organization 092. person who guarantees another's obligations 093. handicapped individual, or organization of devoted to 094. health organization or person, nursing home, medical clinic or laboratory, chiropractor 095. heir, or beneficiary, or person so claiming to be 096. hospital, medical center 097. husband, or ex-husband 098. involuntarily committed mental patient 099. Indian, including Indian tribe or nation 100. insurance company, or surety 101. inventor, patent assigner, trademark owner or holder 102. investor 103. injured person or legal entity, nonphysically and non-employment related 104. juvenile 105. government contractor 106. holder of a license or permit, or applicant therefor 107. magazine 108. male 109. medical or Medicaid claimant 110. medical supply or manufacturing co. 111. racial or ethnic minority employee or job applicant 112. minority female employee or job applicant 113. manufacturer 114. management, executive officer, or director, of business entity 115. military personnel, or dependent of, including reservist 116. mining company or miner, excluding coal, oil, or pipeline company 117. mother 118. auto manufacturer 119. newspaper, newsletter, journal of opinion, news service 120. radio and television network, except cable tv 121. nonprofit organization or business 122. nonresident 123. nuclear power plant or facility 124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels 125. shareholders to whom a tender offer is made 126. tender offer 127. oil company, or natural gas producer 128. elderly person, or organization dedicated to the elderly 129. out of state noncriminal defendant 130. political action committee 131. parent or parents 132. parking lot or service 133. patient of a health professional 134. telephone, telecommunications, or telegraph company 135. physician, MD or DO, dentist, or medical society 136. public interest organization 137. physically injured person, including wrongful death, who is not an employee 138. pipe line company 139. package, luggage, container 140. political candidate, activist, committee, party, party member, organization, or elected official 141. indigent, needy, welfare recipient 142. indigent defendant 143. private person 144. prisoner, inmate of penal institution 145. professional organization, business, or person 146. probationer, or parolee 147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer 148. public utility 149. publisher, publishing company 150. radio station 151. racial or ethnic minority 152. person or organization protesting racial or ethnic segregation or discrimination 153. racial or ethnic minority student or applicant for admission to an educational institution 154. realtor 155. journalist, columnist, member of the news media 156. resident 157. restaurant, food vendor 158. retarded person, or mental incompetent 159. retired or former employee 160. railroad 161. private school, college, or university 162. seller or vendor 163. shipper, including importer and exporter 164. shopping center, mall 165. spouse, or former spouse 166. stockholder, shareholder, or bondholder 167. retail business or outlet 168. student, or applicant for admission to an educational institution 169. taxpayer or executor of taxpayer's estate, federal only 170. tenant or lessee 171. theater, studio 172. forest products, lumber, or logging company 173. person traveling or wishing to travel abroad, or overseas travel agent 174. trucking company, or motor carrier 175. television station 176. union member 177. unemployed person or unemployment compensation applicant or claimant 178. union, labor organization, or official of 179. veteran 180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL) 181. wholesale trade 182. wife, or ex-wife 183. witness, or person under subpoena 184. network 185. slave 186. slave-owner 187. bank of the united states 188. timber company 189. u.s. job applicants or employees 190. Army and Air Force Exchange Service 191. Atomic Energy Commission 192. Secretary or administrative unit or personnel of the U.S. Air Force 193. Department or Secretary of Agriculture 194. Alien Property Custodian 195. Secretary or administrative unit or personnel of the U.S. Army 196. Board of Immigration Appeals 197. Bureau of Indian Affairs 198. Bonneville Power Administration 199. Benefits Review Board 200. Civil Aeronautics Board 201. Bureau of the Census 202. Central Intelligence Agency 203. Commodity Futures Trading Commission 204. Department or Secretary of Commerce 205. Comptroller of Currency 206. Consumer Product Safety Commission 207. Civil Rights Commission 208. Civil Service Commission, U.S. 209. Customs Service or Commissioner of Customs 210. Defense Base Closure and REalignment Commission 211. Drug Enforcement Agency 212. Department or Secretary of Defense (and Department or Secretary of War) 213. Department or Secretary of Energy 214. Department or Secretary of the Interior 215. Department of Justice or Attorney General 216. Department or Secretary of State 217. Department or Secretary of Transportation 218. Department or Secretary of Education 219. U.S. Employees' Compensation Commission, or Commissioner 220. Equal Employment Opportunity Commission 221. Environmental Protection Agency or Administrator 222. Federal Aviation Agency or Administration 223. Federal Bureau of Investigation or Director 224. Federal Bureau of Prisons 225. Farm Credit Administration 226. Federal Communications Commission (including a predecessor, Federal Radio Commission) 227. Federal Credit Union Administration 228. Food and Drug Administration 229. Federal Deposit Insurance Corporation 230. Federal Energy Administration 231. Federal Election Commission 232. Federal Energy Regulatory Commission 233. Federal Housing Administration 234. Federal Home Loan Bank Board 235. Federal Labor Relations Authority 236. Federal Maritime Board 237. Federal Maritime Commission 238. Farmers Home Administration 239. Federal Parole Board 240. Federal Power Commission 241. Federal Railroad Administration 242. Federal Reserve Board of Governors 243. Federal Reserve System 244. Federal Savings and Loan Insurance Corporation 245. Federal Trade Commission 246. Federal Works Administration, or Administrator 247. General Accounting Office 248. Comptroller General 249. General Services Administration 250. Department or Secretary of Health, Education and Welfare 251. Department or Secretary of Health and Human Services 252. Department or Secretary of Housing and Urban Development 253. Interstate Commerce Commission 254. Indian Claims Commission 255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement 256. Internal Revenue Service, Collector, Commissioner, or District Director of 257. Information Security Oversight Office 258. Department or Secretary of Labor 259. Loyalty Review Board 260. Legal Services Corporation 261. Merit Systems Protection Board 262. Multistate Tax Commission 263. National Aeronautics and Space Administration 264. Secretary or administrative unit of the U.S. Navy 265. National Credit Union Administration 266. National Endowment for the Arts 267. National Enforcement Commission 268. National Highway Traffic Safety Administration 269. National Labor Relations Board, or regional office or officer 270. National Mediation Board 271. National Railroad Adjustment Board 272. Nuclear Regulatory Commission 273. National Security Agency 274. Office of Economic Opportunity 275. Office of Management and Budget 276. Office of Price Administration, or Price Administrator 277. Office of Personnel Management 278. Occupational Safety and Health Administration 279. Occupational Safety and Health Review Commission 280. Office of Workers' Compensation Programs 281. Patent Office, or Commissioner of, or Board of Appeals of 282. Pay Board (established under the Economic Stabilization Act of 1970) 283. Pension Benefit Guaranty Corporation 284. U.S. Public Health Service 285. Postal Rate Commission 286. Provider Reimbursement Review Board 287. Renegotiation Board 288. Railroad Adjustment Board 289. Railroad Retirement Board 290. Subversive Activities Control Board 291. Small Business Administration 292. Securities and Exchange Commission 293. Social Security Administration or Commissioner 294. Selective Service System 295. Department or Secretary of the Treasury 296. Tennessee Valley Authority 297. United States Forest Service 298. United States Parole Commission 299. Postal Service and Post Office, or Postmaster General, or Postmaster 300. United States Sentencing Commission 301. Veterans' Administration 302. War Production Board 303. Wage Stabilization Board 304. General Land Office of Commissioners 305. Transportation Security Administration 306. Surface Transportation Board 307. U.S. Shipping Board Emergency Fleet Corp. 308. Reconstruction Finance Corp. 309. Department or Secretary of Homeland Security 310. Unidentifiable 311. International Entity Answer:
songer_appel1_7_5	F	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. The nature of this litigant falls into the category "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). Sumner G. WHITTIER, Administrator of Veterans Affairs, et al., Appellants, v. Herman L. R. EMMET, Jr., On Behalf of Himself and all Others Similarly Situated, Appellee. UNITED STATES of America, Appellant, v. James A. DEERING, On Behalf of Himself and all Others Similarly Situated, Appellee. UNITED STATES of America, Appellant, v. Robert H. MABBUTT et al., Suing for Themselves and all Persons Similarly Situated, Appellees. Nos. 15066-15068. United States Court of Appeals District of Columbia Circuit. Argued Nov. 19, 1959. Decided June 23, 1960. Petition for Rehearing en Banc Denied Sept. 16, 1960. See, also, 164 F.Supp. 563. Mr. Lionel Kestenbaum, Atty., Dept, of Justice, with whom Asst. Atty. Gen., George C. Doub, Messrs. Oliver Gasch, U. S. Atty., and Morton Hollander, Atty., Dept, of Justice, were on the brief, for appellants. Mr. John Geyer Tausig, Washington, D. C., with whom Messrs. Henry F. Butler and John T. Koehler, Washington, D. C., were on the brief, for appellees. Before Mr. Justice Burton, retired, and Washington and Danaher, Circuit Judges. Siting by designation pursuant to 28 U.S.C. § 294(a). Mr. Justice BURTON. Under Article IV of the Soldiers’ and Sailors’ Civil Relief Act of 1940, the United States guaranteed the payment of premiums on limited amounts of commercial life insurance policies carried by servicemen. In 1942 the Act was amended to include, for the first time, an express provision that when such an insurance premium payment was made by the United States, it evidenced a debt due to the United States from the insured serviceman on whose account the payment was made. The amendments also provided that such debts to the United States were collectible either by their deduction from amounts due the insured servicemen from the United States or as otherwise authorized by law. The Administrator of Veterans’ Affairs interpreted Article IV of the 1940 Act, prior to the 1942 Amendments, as establishing by implication a comparable obligation on the part of the insured servicemen to reimburse the Government for its payment of the guaranteed premiums. Under this interpretation, the Administrator collected over $1,640,000 from approximately 8,400 insured servicemen. He did this in large part by offsetting against the debts of the respective servicemen the dividends due them in connection with their National Service Life Insurance policies. Although there was some acquiescence in the Administrator’s interpretation of the 1940 Act, there also was vigorous opposition to it. This resulted in conflicting judicial decisions culminating in 1957 in the Supreme Court’s decision, with three Justices dissenting, in United States v. Plesha, 352 U.S. 202, 77 S.Ct. 275, 1 L.Ed.2d 254. In that case the Supreme Court held that, contrary to the Administrator’s interpretation of the 1940 Act, prior to the 1942 Amendments, the insured servicemen were not obligated to reimburse the Government for its payment of premiums on their account. After the Plesha decision, the next problem was that of returning to the servicemen their funds which had been used erroneously by the Government to reimburse itself for its payment of the guaranteed premiums. To facilitate such refunding, Congress, in 1958, enacted Public Law 85-586. That Act authorized the Administrator of Veterans’ Affairs, upon timely application, to refund to the servicemen, without interest, all amounts collected from them by the United States under its erroneous interpretation of the 1940 Act. Public Law 85-586 made available the money to make such refunds and also provided that the right to such refunds was not to be denied by reason of statutory time limitations, judgments theretofore rendered, or “any other technical defense.” In the three cases now before us plaintiffs ask not only for the principal of the sums claimed, but also for interest on delayed dividends due them under their National Service Life Insurance policies. Furthermore, they ask for the allowance of attorneys’ fees to cover services rendered not only to the named parties to the litigation, but to all persons similarly situated. In No. 15066, the plaintiff, Emmet, sought a writ of mandamus from the District Court for the District of Columbia ordering the defendant officials to make the payments requested. In Nos. 15067 and 15068 the plaintiffs, Deering and Mabbutt, brought suit, respectively, in the District Court for the Southern District of New York and the District Court for the Northern District of California for the payment of their claims pursuant to the Tucker Act, and the National Service Life Insurance Act. Those courts transferred the cases to the District Court for the District of Columbia in reliance upon 28 U.S.C. § 1404(a). That court consolidated the cases and granted a preliminary injunction, which is still in effect, forbidding the disburse* ment of more than 90% of the respective payments authorized by Public Lav/ 85-586. It overruled all objections to its jurisdiction and to the propriety of taking action on the merits of the issues presented. After a plenary hearing it ordered payment by the Government not only of the amounts provided for in Public Law 85-586, but also of interest at 3% per annum on an amount equal to the value of the National Service Life Insurance dividends. It also authorized the payment of attorneys’ fees of 5% on the aggregate amount of principal and interest to be refunded under Public Law 85-586. The Government, on appeal, seeks a reversal of the judgment below on the ground that none of these actions should have been heard by the District Court for the District of Columbia. On the merits, the Government contends that neither the allowance for interest nor that for attorneys’ fees was justified. For the reasons hereafter stated, we agree with the Government. In No. 15066, originating in 1955 in the District Court for the District of Columbia, Emmet sought to litigate the question later resolved by the Supreme Court in United States v. Plesha, supra. He asked for a writ of mandamus directed against the Administrator of Veterans’ Affairs, the Secretary of the Treasury, the Treasurer of the United States and the Comptroller General. It is elemental, however, that this extraordinary remedy was not available for such purpose, inasmuch as the Tucker Act provided an adequate remedy at law to test the question. The pecuniary liability of the United States may be determined only through such procedures as the United States has authorized. Moreover, a writ of mandamus will be issued only to compel the performance of a ministerial duty as distinguished from one calling for exercise of discretion. In this case the amounts claimed had not yet been determined at the time the action was filed. While this case was pending, the decision in the Plesha case and the enactment of Public Law 85-586 settled the major legal issues. They did not, however, authorize an allowance for interest and another for attorneys’ fees as sought by the plaintiff. The way to reach those issues is not by writ of mandamus. Accordingly, the complaint in the Emmet case must be dismissed on jurisdictional grounds insofar as it applies to mandamus. Deering and Mabbutt sought relief comparable to that sought in the Emmet case but by a different procedure. They filed their complaints in the District Courts of their respective districts of residence. Each alleged that jurisdiction existed in those courts both under the Tucker Act and the National Service Life Insurance Act. On motions of plaintiffs those courts transferred both cases to the District Court for the District of Columbia under authority of 28 U.S.C. § 1404(a). The Government here contends that the complaints should have been dismissed or the cases re-transferred to permissible districts. Section 1404(a) limits transfers of such cases to those districts where the action might have been brought in the first instance. Such limitation excludes vende in this district under the Tucker Act, because by § 1402(a) venue under the Tucker Act is limited to the courts of the districts of the plaintiffs’ residence or to the Court of Claims. But plaintiffs also contend that venue lies in the District Court for the District of Columbia under the National Service Life Insurance Act of 1940. Under the jurisdictional provision of that Act, actions involving disagreements as to claims under National Service Life Insurance contracts may be brought either in the district of the plaintiff’s residence or in the District Court for the District of Columbia. That provision, however, does not apply to the instant cases because the complaints here seek to recover the collections erroneously made by the Government in reliance upon the Soldiers’ and Sailors’ Civil Relief Act of 1940, not the National Service Life Insurance - Act. The cases before us do not involve any disagreement about dividends under the Insurance Act. The Government admits the plaintiffs’ right to those dividends. It disbursed them from the Insurance Fund and credited plaintiffs’ accounts by •offsetting the erroneous claims of the Government under the Soldiers’ and Sailors’ Civil Relief Act. Even if these differences be treated as disagreements as to dividends, it still would be necessary to show here that this disagreement was one for an “insurance benefit” within the meaning of 38 U.S.C. § 784(h). Candell v. United States, 10 Cir., 1951, 189 F.2d 442, indicates that disputes over dividends do not so qualify. As was pointed out in Candell, insurance dividends are realized as a result of low mortality experience and economies in the operation of the insurance company. They are unrelated to the obligation to pay the particular policyholder for a loss insured against and are not the same sort of payment as an insurance benefit. Furthermore, the “disagreement” which is a prerequisite to a suit under the Insurance Act must include the filing of a claim or protest and a denial. That is absent here. United States v. Christensen, 10 Cir., 1953, 207 F.2d 757. After the court below had declined to dismiss these cases or to transfer them to other District Courts, it considered them on their merits and granted substantially the relief requested. On these appeals, the parties have argued the merits. Although we have concluded that the lower courts were in error in deciding that venue in Deering and Mabbutt lies in the District of Columbia, this does not preclude us from disposing of these cases on the merits. Section 1406(b) of the Judicial Code provides that deficiencies in venue shall not impair a District Court’s jurisdiction if objection to the deficiency is not timely and sufficient. Venue is primarily designed to protect defendants from inconvenient forums and courts from inconvenient lawsuits. Once the case has been heard fully and fairly on the merits, the reasons for reversing the judgment on grounds of improper venue are substantially diminished in the absence of prejudice to a- party who has preserved his standing to complain by timely objection. This factor distinguishes the cases before us from those where the decision of the District Court on the venue question was brought before the Court of Appeals by petition for mandamus or interlocutory appeal before a hearing on the merits. We proceed to a disposition of the instant cases on their merits because the erroneous determination of the venue questions below does not constitute reversible error as to any of the parties. These cases were transferred to this district on motions of the plaintiffs and their view of 'the venue questions prevailed below. Having invoked the transfer provisions of § 1404(a) themselves, and having failed to take a cross-appeal from the judgment below in their favor on the merits, they have waived their right to complain of the improper venue. Peoria & P. U. R. Co. v. United States, 1924, 263 U.S. 528, 44 S.Ct. 194, 68 L.Ed. 427. As for the Government, if it prevails on the merits, the erroneous determination of the venue amounts to harmless error. It would not make any significant difference from the Government’s point of view whether the cases were tried in New York and California, or in the District of Columbia. In fact, the Government has had the advantage of having to try only one proceeding and take appeals in one circuit rather than to' have had three trials and take appeals in three circuits. In this situation there is no basis for concluding that prejudice to the Government resulted from trial in an improper district. It would be an obviously questionable result if we should find for the Government on the merits, and yet order it to re-litigate the cases in other forums merely because improper venue had been imposed upon it over its timely objections. On the merits, the court below ordered the defendants to pay plaintiffs, inter-venors, and each veteran similarly situated, the amount the Administrator of Veterans’ Affairs had wrongfully applied to the reimbursement of the United States for premiums advanced by it on the serviceman’s commercial life insurance under the Civil Relief Act of 1940. The court below also ordered the payment of interest at 3% per annum on the amount so to be paid. An obvious reason for denying this allowance of interest is that Congress has made no provision for its payment. It is elemental that pre-judgment interest cannot be assessed against the Government in the absence of a specific provision authorizing such assessment. Furthermore, since all but the few named parties to these actions will receive payment of their claims solely under Public Law 85-586, rather than under the judgments rendered in these cases, the terms of such payments are to be determined by such statute. It expressly states that the payments authorized are "without interest.” There is no authority in the National Service Life Insurance Act for the allowance of interest claimed by the named plaintiffs in these actions. In fact, the Supreme Court has held that no interest was allowable under the World War I Insurance Act, which is substantially identical to the National Service Life Insurance Act, even in the extreme case of a wrongfully withheld death benefit. The court below also ordered the allowance of attorneys’ fees of 5% of the aggregate principal and interest which the court ordered paid under Public Law 85-586. These fees were to be applied first to reimbursement for legal expenses in certain named cases and the balance was to be divided among counsel named in the order. This allowance was not dependent upon statutory authority but rested upon the equity powers of a court to allow attorneys’ fees in exceptional cases and for dominating reasons of justice. Sprague v. Ticonic Nat. Bank, 1939, 307 U.S. 161, 59 S.Ct. 777, 83 L.Ed. 1184. The nature and extent of the legal services performed control the allowance rather than any formal, relationship between client and attorney. The decision in the Plesha case authoritatively established the rights of the claimants and in that sense was a necessary precondition to the payment of any refunds to the veteran claimants. This decision, however, was merely an application of law which was available to other litigants under the doctrine of stare decisis. One who is influential in litigation leading to the announcement of a rule of law does not thereby gain a right to compensation from all those who later benefit from the application of the rule. Nor did the Plesha decision create such a distinct fund for the benefit of the class of claimants either by way of stare decisis or otherwise. It merely decided the claims of a few veterans out of about 8,400 who had claims involving a common question of law. Many of those claims would have been defeated by technical defenses, statutes of limitation, voluntary payments, or res judicata, except for the waiver of such defenses by Congress as set forth in Public Law 85-586. In that Act, Congress made available the Civil Relief Fund and other funds for reimbursement of the veterans entitled to it. From the small number of claimants who have joined these actions during the four years since the litigation was commenced, it is probable that few will join before judgment. Of the nine present intervenors, only two were not parties to one of the class suits or to Plesha. New more, if any, are likely to join now in view of Public Law 85-586. The saving of so few, out of about 8,400 claimants, from the operation of the statute of limitations is not an adequate reason for imposing attorneys’ fees upon all 8,400 litigants. Appellees’ ultimate position is that they are entitled to attorneys’ fees because Congress was moved by this litigation to pass an Act assisting these claimants. The class Congress favored is broader than that covered by the Plesha decision. The assertion of a noncontractual claim for compensation for services rendered in sponsoring favorable legislation does not deserve prolonged discussion. The judgments of the District Court are reversed and the cases are remanded to it with directions that the complaint in No. 15066 be dismissed and that the complaints in Nos. 15067 and 15068 be dismissed unless the appellees move for a transfer to courts having jurisdiction over the actions for further proceedings not inconsistent with this opinion. Reversed and remanded. . 54 Stat. 1183-1186, 50 U.S.C.A.Appendix, §§ 540-554. . 56 Stat. 775, 50 U.S.C.A.Appendix, § 546. . Collected by offset against National Service Life Insurance dividends ........... $ 960,000 Insurance dividends ...... 65,000 By offset against disability compensation .......... 22,000 Cash payments in response to demands by letters . .. 600,000 As a result of final judgments ................. 2,000 $1,649,000 . Veteran required to reimburse the United States for its payment of guaranteed premiums. United States v. Hendler, 10 Cir., 1955, 225 F.2d 106; Morton v. United States, D.C.N.D.N.Y. 1953, 113 F.Supp. 496; United States v. Nichols, D.C.N.D.Iowa 1952, 105 F.Supp. 543. Veteran not required to reimburse the United States for such payments. Plesha v. United States, 9 Cir., 1955, 227 F.2d 624 reversing D.C.N.D. Cal.1953, 123 F.Supp. 593; Hormel v. United States, D.C.S.D.N.Y.1954, 123 F.Supp. 806. . “Be it enacted by the Senate and Biouse of Representatives of the United States of America in Congress assembled, That the Administrator of Veterans’ Affairs is hereby authorized to make refunds, without interest, which are due on account of amounts collected by the United States Government by offset or otherwise from persons who made valid application for and were legally entitled to the protection of article IV of the Soldiers’ and Sailors’ Civil Relief Act of 1940, as it existed prior to the amendments of October 6, 1942. No refund shall be made pursuant to this Act unless application therefor is made to the Veterans’ Administration, within two years after the date of enactment of this Act and refund hereunder shall not be denied by reason of any other statutory time limitations, judgments heretofore rendered, or any other technical defense. “Sec. 2. The Soldiers’ and Sailors’ Civil Relief Fund may be used by the Veterans’ Administration for making refunds pursuant to this Act and there is hereby authorized to be appropriated such additional sums as may be necessary to carry out the purposes of this Act.” Public Law 85-586, 72 Stat. 487-488, 50 U.S.C.A.Appendix, § 540 note. . See 28 U.S.C. § 1346(a) (2) and § 1402 (a). . 38 U.S.C. § 784. . “(a) For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.” . The interest was to be computed from the date that the dividends were withdrawn from the National Service Life Insurance Fund to the date on which they were paid to the servicemen entitled to them. . United States ex rel. Girard Trust Co. v. Helvering, 1937, 301 U.S. 540, 543, 57 S.Ct. 855, 81 L.Ed. 1272; 28 U.S.C. §§ 1346, 1491 et seq.; see Plesha v. United States, 9 Cir., 1955, 227 F.2d 624. . See Reeside v. Walker, 1851, 11 How. 272, 13 L.Ed. 693. The Code vests extensive unreviewable discretion in the Administrator to determine matters of law and fact in this area. See 38 U.S.C. §§ 785, 211. . See note 8, supra. . § 784. Suits on insurance. “(a) In the event of disagreement as to claim, including claim for refund of premiums, under contract of National Service Life Insurance, United States Government life insurance, or yearly renewable term insurance between the Veterans’ Administration and any person or persons claiming thereunder an action on the claim may he brought against the United States either in the United States District Court for the District of Columbia or in the district court of the United States in and for the district in which such person or any one of them resides, and jurisdiction is conferred upon such courts to hear and determine all such controversies. * * * The courts of appeals for the several circuits, including the District of Columbia, shall respectively exercise appellate jurisdiction and, except as provided in section 1254 of title 28, the decrees of such courts of appeals shall be final. # * * * * “(h) The term ‘claim’ as used in this section means any writing which uses words showing an intention to claim insurance benefits; and the term ‘disagreement’ means a denial of the claim, after consideration on its merits, by the Administrator or any employee or organizational unit of the Veterans’ Administration heretofore or hereafter designated therefor by the Administrator.” 38 U.S.C. § 784. Before Title 38 was enacted into positive law in 1958, the provisions of this section were contained in 38 U.S.C. (1952 ed.) §§ 445, 817. . See note 13, supra. . “(b) Nothing in this chapter shall impair the jurisdiction of a district court of any matter involving a party who does not interpose timely and sufficient objection to the venue.” 28 U.S.C. § 1406(b). Olberding v. Illinois Central R. Co., 1953, 346 U.S. 338, 340, 74 S.Ct. 83, 98 L.Ed. 39; Bankers Life & Cas. Co. v. Holland, 1953, 346 U.S. 379, 382, 74 S.Ct. 145, 98 L.Ed. 106; Polizzi v. Cowles Magazines, Inc., 1953, 345 U.S. 663, 665, 672, 73 S.Ct. 900, 97 L.Ed. 1331; Neirbo Co. v. Bethlehem Shipbuilding Corp., 1939, 308 U.S. 165, 167-168, 60 S.Ct. 153, 84 L.Ed. 167; Commercial Casualty Insurance Co. v. Consolidated Stone Co., 1929, 278 U.S. 177, 179, 49 S.Ct. 98, 73 L.Ed. 252. . See 28 U.S.C. § 2111; Fed.Rules Civ.Proc., 61, 28 U.S.C. Cf. Bankers Life & Cas. Co. v. Holland, supra, 346 U.S. at page 382, 74 S.Ct. at page 147; Paramount Pictures, Inc. v. Rodney, 3 Cir., 1950, 186 F.2d 111; Atlantic Coast Line R. Co. v. Davis, 5 Cir., 1950, 185 F.2d 766, 768; Ford Motor Co. v. Ryan, 2 Cir., 1950, 182 F.2d 329, 330; Magnetic Engineering & Mfg. Co. v. Dings Mfg. Co., 2 Cir., 1950, 178 F.2d 866, 869. Before the adoption of the Federal Rules of Civil Procedure, a defendant was required to raise his venue point by special appearance and motion to quash before he pleaded to the merits or he would be deemed to have waived his defense. See e. g., Commercial Casualty Insurance Co. v. Consolidated Stone Co., supra. Venue questions, therefore, did not arise in the federal courts on appeal after an adjudication on the merits. Rule 12(b) of the Federal Rules of Civil Procedure abolished the special appearance and permitted an attack on the venue of the court to be pleaded by motion or in the answer along with the other defenses going to the merits. While we have not found any reported federal decisions since the adoption of the federal rules considering a venue contention on appeal after trial on the merits and coming to the conclusion that the error was harmless, a number of state courts have reached this decision in analogous circumstances. See e. g., Straus Bros. Co. v. Fisher, 1928, 200 Ind. 307, 163 N.E. 225; City of Georgetown v. Cantrill, 1914, 158 Ky. 378, 164 S.W. 929; Hayes v. Oertel, La.App. 1940, 195 So. 388; Sanders v. Atlantic Coast Line R. Co., 1920, 114 S.C. 164, 103 S.E. 564; Oldham v. Reiley, 1921, 44 S.Dak. 428, 184 N.W. 250; Woodson Independent School Dist. v. State ex rel. Cox, Tex.Civ.App.1939, 130 S.W.2d 1038; Ramirez v. Sanchez, Tex.Civ.App.1936, 97 S.W.2d 1034; Peters v. Allen, Tex.Civ.App.1927, 296 S.W. 929; Floor v. Mitchell, 1935, 86 Utah 203, 41 P.2d 281; Kalb v. Luce, 1941, 239 Wis. 256,1 N.W.2d 176. . See e. g., Continental Grain Co. v. Federal Barge Lines, Inc., 5 Cir., 1959, 268 F.2d 240, certiorari granted 361 U.S. 811, 80 S.Ct. 79, 4 L.Ed.2d 59; Behimer v. Sullivan, 7 Cir., 1958, 261 F.2d 467, certiorari granted 361 U.S. 809, 80 S.Ct. 50, 4 L.Ed.2d 58; Blaski v. Hoffman, 7 Cir., 1958, 260 F.2d 317, certiorari granted 359 U.S. 904, 79 S.Ct. 583, 3 L.Ed.2d 570; In re Josephson, 1 Cir., 1954, 218 F.2d 174; All States Freight, Inc. v. Modarelli, 3 Cir., 1952, 196 F.2d 1010; C-O-Two Fire Equipment Co. v. Barnes, 7 Cir., 1952, 194 F.2d 410, affirmed by an equally divided court 344 U.S. 861, 73 S.Ct. 102, 97 L.Ed. 695; Gulf Research & Development Co. v. Leahy, 3 Cir., 1951, 193 F.2d 302, affirmed by an equally divided court 344 U.S. 861, 73 S.Ct. 102, 97 L.Ed. 668; Paramount Pictures, Inc. v. Rodney, supra; Atlantic Coast Line R. Co. v. Davis, supra; Ford Motor Co. v. Ryan, supra; Magnetic Engineering & Mfg. Co. v. Dings Mfg. Co., supra. . 28 U.S.C. §§ 2411, 2516. See United States v. New York Rayon Importing Co., 1947, 329 U.S. 654, 67 S.Ct. 601, 91 L.Ed. 577; United States v. Thayer West Point Hotel Co., 1947, 329 U.S. 585. 67 S.Ct. 398. 91 L.Ed. 521. . United States v. Citizens Loan & Trust Co., 1942, 316 U.S. 209, 62 S.Ct. 1026, 86 L.Ed. 1387; United States v. Worley, 1930, 281 U.S. 339, 50 S.Ct. 291, 74 L.Ed. 887. 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_genresp2	E	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. 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. Ronald Clark O’BRYAN, Plaintiff-Appellant, v. Dan V. McKASKLE, Acting Director, Texas Department of Corrections, Individually and in his official capacity; Robert D. Gunn; Joe V. LaMantia, Jr., Harry M. Whittington, Pete Cortez, Deralyn R. Davis, Thomas R. McDade, Clifford F. Smith, Lindsley Waters, and H. Bartel Zachery, Jr., individually and as members of the Texas Board of Corrections, Defendants-Appellees. Ronald Clark O’BRYAN, Petitioner-Appellant, v. Dan V. McKASKLE, Acting Director, Texas Department of Corrections, Respondent-Appellee. Nos. 84-2182, 84-2183. United States Court of Appeals, Fifth Circuit. March 29, 1984. Stefan Presser, Atty., American Civil Liberties Union, Houston, Tex., for plaintiff-appellant in No. 84-2182. Leslie Benitez, Asst. Atty. Gen., Austin, Tex., for defendants-appellees. Will Gray, Carolyn Garcia, Houston, Tex., for petitioner-appellant in No. 81-2183. Before POLITZ, RANDALL and HIGGINBOTHAM, Circuit Judges. PER CURIAM: Ronald Clark O’Bryan is scheduled to be executed before sunrise on March 31, 1984. He was convicted in a Texas state court in 1975 of murdering his own child in order to collect the proceeds from life insurance policies on his child’s life. His conviction and sentence were affirmed by the Texas Court of Criminal Appeals in 1979. O’Bryan v. State, 591 S.W.2d 464 (Tex.Cr.App.1979) (en banc), cert. denied, 446 U.S. 988, 100 S.Ct. 2975, 64 L.Ed.2d 846 (1980). Two applications for a writ of habeas corpus were denied by the state trial and appellate courts in 1980 and 1982, respectively. His second application for federal habeas relief (the first having been dismissed without prejudice to permit O’Bryan to return to state court to exhaust additional claims) was denied in 1982, and this court affirmed the denial of habeas relief in 1983. O’Bryan v. Estelle, 714 F.2d 365 (5th Cir.1983), cert. denied sub norm. O’Bryan v. McKaskle, — U.S.-, 104 S.Ct. 1015, 79 L.Ed.2d 245 (1984). O’Bryan’s case has been before the Supreme Court on three different occasions: first, in 1980, when his petition for certiorari to review his direct appeal was denied; second, in January, 1984, when his petition for certiorari to review the decision of this court affirming the denial of federal habeas relief was denied; and third, in March, 1984, when his motion for leave to file an original petition for a writ of habeas corpus was denied, as was an accompanying motion for a stay of execution. Following the Supreme Court's most recent action, O’Bryan elected to follow what are at least nominally two separate avenues for relief. First, he filed a new application for habeas relief in state court which was denied by the state district court on March 27, 1984, and by the Court of Criminal Appeals on March 28, 1984. O’Bryan then filed an application for federal habeas relief in federal district court, which was denied on March 29, 1984, as were accompanying requests for a stay of execution and for a certificate of probable cause. Pending before us in connection with O’Bryan’s most recent round of applications for habeas relief are applications for a certificate of probable cause and for a stay of execution. O’Bryan’s second avenue for relief consisted of filing a complaint (the “1983 Complaint”) in federal district court on March 28, 1984, pursuant to 42 U.S.C. § 1983, against the Acting Director of the Texas Department of Corrections and the members of the Texas Board of Corrections (collectively, the “1983 defendants”). The 1983 Complaint asserted three claims: (1) By failing to file an investigational new drug plan with the Food and Drug Administration (“FDA”) relating to the drugs used by the 1983 defendants as a method of execution and by failing to await the results of those tests mandated by the Court of Appeals for the District of Columbia Circuit in Chaney v. Heckler, 718 F.2d 1174 (D.C.Cir.1983), temp, stay granted (March 21, 1984), permanent stay granted (March 30, 1984), the 1983 defendants will force O’Bryan to become an unwilling consumer of drugs that are not shown to be safe and effective for their intended use in violation of the Federal Food, Drug and Cosmetic Act (the “Act”), 21 U.S.C. § 301 et seq. (1982); (2) By failing to await the results of those tests mandated in Chaney, supra, the 1983 defendants will deprive O’Bryan of his eighth amendment right to be free from cruel and unusual punishment by subjecting him to lethal injection of drugs not proven safe, effective or humane in producing death; and (3) The actions of the 1983 defendants, if allowed to go unstopped, will cause O’Bryan irreparable injury for which he has no adequate remedy at law. O’Bryan requested the district court to grant declaratory relief to the effect that the 1983 defendants’ use of the drugs as a method of execution without FDA approval violates the Act and the eighth amendment and to grant preliminary and permanent injunctive relief against continuing to use the drugs as part of an execution unless expressly approved by the FDA for that purpose. On March 29, 1984, the district court denied O’Bryan’s request for preliminary and permanent injunctive relief and for a stay of execution, and also denied O’Bryan’s application for temporary relief pending appeal. Pending before us in connection with the 1983 Complaint is a motion to enjoin the 1983 defendants from subjecting O’Bryan to lethal injection with drugs not approved for that purpose by the FDA during the pendency of O’Bryan’s appeal from the district court’s judgment. We turn first to the 1983 Complaint. In general, a court, in deciding whether to issue a stay, must consider: (1) whether the movant has made a showing of likelihood of success on the merits, (2) whether the movant has made a showing of irreparable injury if the stay is not granted, (3) whether the granting of the stay would substantially harm the other parties, and (4) whether the granting of the stay would serve the public interest. Ruiz v. Estelle, 666 F.2d 854, 856 (5th Cir.1982) (Ruiz II) (quoting Ruiz v. Estelle, 650 F.2d 555, 565 (5th Cir.1981) (Ruiz I)). While “the movant need not always show a ‘probability’ of success on the merits,” he must “present a substantial case on the merits when a serious legal question is involved and show that the balance of the equities, [i.e. the other three factors] weighs heavily in the favor of granting the stay.” Ruiz II, 666 F.2d at 856 (emphasis in original) (quoting Ruiz I, 650 F.2d at 565). Insofar as the likelihood of success on the merits is concerned, we do not think that O’Bryan has made the showing required for a stay. We begin by noting that the mandate in Chaney v. Heckler, supra, has not issued, having been stayed by Chief Justice Burger pending the government’s application for a writ of certiorari in the Supreme Court. We note also that neither this court nor any party to this case is bound by the decision of the Court of Appeals for the District of Columbia Circuit in Chaney. On the probable merits of O’Bryan’s claim of a violation of the Act, we think that, for the reasons set forth in Judge Scalia’s dissenting opinion in Chaney, O’Bryan’s claim is insubstantial and he is unlikely to succeed on appeal. See also United States v. Evers, 643 F.2d 1043 (5th Cir.1981). Insofar as his second claim is concerned — that by failing to await the results of the tests mandated in Chaney, the 1983 defendants will deprive O’Bryan of his eighth amendment right to be free from cruel and unusual punishment — we agree with the State that the showing made by O’Bryan of discomfort or unnecessary pain falls far short of the showing found insufficient in Gray v. Lucas, 710 F.2d 1048 (5th Cir.1983). Accordingly, O'Bryan's probability of success on the merits of this claim is inadequate to justify a stay. Finally, turning to O’Bryan’s most recent round of applications for habeas relief, the district court, in a careful opinion, held that O’Bryan’s petition was a successive petition governed by Rule 9(b) of the Rules Governing Section 2254 Cases in the United States District Courts, alleging no new or different grounds for relief from his earlier federal court petition which was decided on the merits. The court noted that Rule 9(b) was designed to afford the district court discretion in reviewing a successive claim and to make redeterminations where “the applicant shows that the ends of justice would be served by permitting redeterminations of the ground,” citing Sanders v. United States, 373 U.S. 1, 16, 83 S.Ct. 1068, 1078, 10 L.Ed.2d 148 (1963). The district court held that O’Bryan’s current habeas petition presents no arguments that have not already been presented to this court and twice to the Supreme Court and rejected by all, and that the ends of justice would not be served by permitting redeterminations of those arguments. We are governed in this case by the Supreme Court’s recent opinion in Barefoot v. Estelle, — U.S.-, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983). Specifically, in order to obtain a certificate of probable cause, O’Bryan must make a “ ‘substantial showing of the denial of [a] federal right.’ ” 103 S.Ct. at 3394. He must demonstrate that the issues raised in his application for federal habeas relief are “debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are ‘adequate to deserve encouragement to proceed further.’ ” Id. at 3394 n. 4 (quoting Gordon v. Willis, 516 F.Supp. 911, 913 (N.D.Ga.1980)). We think that O’Bryan has failed to make that showing. The application in No. 84-2182 for leave to appeal in forma pauperis is GRANTED; the application in that case for a stay of execution is DENIED. The applications in No. 84-2183 for leave to appeal in forma pauperis, for a stay of execution and for a certificate of probable cause are DENIED. The mandate shall issue forthwith. . The State of Texas argues that the 1983 Complaint is a thinly-disguised habeas petition; that O’Bryan has failed to exhaust his state remedies; and that the filing of the 1983 Complaint is an abuse of the writ, citing Jones v. Estelle, 722 F.2d 159 (5th Cir.1983) (en banc). In view of the result that we reach, we do not decide those questions. . Although not argued by the parties, we are unable to identify the legal footing for O'Bryan's present effort to enforce this detailed federal administrative scheme. Middlesex County Sewerage Authority v. National Sea Clammers Assoc., 453 U.S. 1, 101 S.Ct. 2615, 69 L.Ed.2d 435 (1981); Great American Federal Savings & Loan Assoc. v. Novotny, 442 U.S. 366, 99 S.Ct. 2345, 60 L.Ed.2d 957 (1979); Brown v. General Services Administration, 425 U.S. 820, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976); Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Moreover, Congress provided in the Act that "[a]Il such proceedings for the enforcement, or to restrain violations, of [the Act] shall be by and in the name of the United States.” 21 U.S.C. § 337. 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_usc1	28	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. Kenneth GRANT, Plaintiff-Appellee-Appellant, v. UNITED STATES of America, Defendant-Appellant-Appellee (George F. McGuire and Royal Indemnity Company, Third-Party Defendants-Appellees). No. 197, Docket 25316. United States Court of Appeals Second Circuit. Argued March 4, 1959. Decided Oct. 22, 1959. Morton Hollander, Atty., Dept. of Justice, Washington, D. C. (George Cochran Doub, Asst. Atty. Gen.,; Cornelius W. Wickersham, Jr., U. S. Atty., and Robert A. Morse, Asst. U. S. Atty., Eastern District of New York, Brooklyn, N. Y., Bernard Cedarbaum, Atty., Dept. of Justice, Washington, D. C., on the brief), for the United States, appellant. Bernard Meyerson, Brooklyn, N. Y. (William H. George, Valley Stream, N. Y., on the brief), for Kenneth Grant, appellee-appellant. Louis W. Mele, New York, N. Y. (Cohen, McGuirk & Michels, Brooklyn, N. Y., and Alexander Gangel, New York City, on the brief), for Royal Indemnity Company, appellee. Before MEDINA and HINCKS, Circuit Judges, and MATHES, District Judge. United States District Judge for the Southern District of California, sitting by designation. HINCKS, Circuit Judge. The plaintiff sued to recover for personal injuries, under the Federal Tort Claims Act, 28 U.S.C.A. § 1346(b), suf-ferred in a building owned and maintained by the United States for the use of the United States Merchant Marine Academy. The defendant brought in, by third-party complaint, Lieutenant McGuire, the Ship’s Service Officer of the Academy who was the officer in charge of the Ship’s Service Store, which occupied part of said building, and an insurance carrier, Royal Indemnity Company (Royal), which had written liability insurance on the premises. After a trial without a jury, the district court judge gave judgment for the plaintiff against the defendant, and for the third-party defendants on the third-party complaint. From the judgments in favor of plaintiff and in favor of Royal, the United States appeals. The plaintiff also appeals on the ground that his award was inadequate. No appeal was taken from the judgment dismissing the third-party complaint against Lieutenant McGuire. The plaintiff, who was employed by a news company, on the morning of January 5, 1952 was delivering newspapers to the Ship’s Service Store of the Merchant Marine Academy at Kings Point, New York. Daily deliveries were made to an entrance of the store below ground level to which in common with other space occupied by the Academy, a twelve-step exterior uncovered stairway led. Alongside the stairway was a chute down which Grant ordinarily slid the bundles of newspapers but on the morning when the accident occurred it was raining and the surface of the chute was wet so that the bundles would not slide. Grant therefore carried two bundles of papers, one on his shoulder and the other in his hand, down the stairway which ordinarily was lighted by overhead lights. On this morning, the trial judge found, the lights were not turned on. When Grant had descended about nine steps, he mistakenly assumed he had reached the bottom; he stepped forward instead of down, fell and injured his right knee. The Store was operated by Lieutenant McGuire, an officer of the United States Merchant Marine, under his duty assignment as Ship’s Service Officer. It was located in a Government building the rest of which was used by the Academy. Its profits, after payment of salaries to employees, went into the Academy welfare fund. The trial judge found, and it is no-t questioned on this appeal, that the Store was an integral part of the Academy which was an instrumentality of the United States. Act of Aug. 4, 1939, § 5, 46 U.S.C.A. (ed. 1940) § 1126. See also Act of May 11, 1944, 58 Stat. 220, and 46 U.S.C.A. (ed. 1952) § 1126 et seq. The insurance policy under which the United States claims coverage was issued on June 30, 1945 and was to run until cancelled by either party. It named as the insured the “Ship’s Service Officer, United States Merchant Marine Academy.” It had never been cancelled. The premium was to depend on the gross sales of the Store which were to be reported every quarter. Relevant provisions of the policy are set out in the margin. After the trial, Judge Byers filed an opinion containing findings of fact and conclusions of law. 162 F.Supp. 689. He entered judgment for the plaintiff for $4,728.49 on his complaint against the United States and dismissed the third-party complaint against McGuire and the Royal Indemnity Company. As to the plaintiff’s appeal, the trial court’s award of damages is based on findings of fact which can be disturbed only if clearly erroneous. Sanders v. Leech, 5 Cir., 158 F.2d 486. Cf. Kelcey v. Tankers Co., 2 Cir., 217 F.2d 541; Lukmanis v. United States, 2 Cir., 208 F.2d 260. Plainly, the findings below cannot be so characterized. Indeed, they are fully consonant with substantial evidence and in turn furnished a basis upon which the award was reasonably made. The holding below which imposed liability upon the United States must also be upheld. The law of the state of New York governs here. Ira S. Bushey & Sons, Inc. v. United States, 2 Cir., 172 F.2d 447. It is clear that under such law the defendant owed business invitees, such as the plaintiff, “the duty of exercising ordinary care to render the premises reasonably safe for the performance of the work.” Haefeli v. Woodrich Engineering Co., 255 N.Y. 442, 175 N.E. 123, 125; Meiers v. Fred Koch Brewery, 229 N.Y. 10, 127 N.E. 491, 13 A.L.R. 633. Here, as well as in the Meiers case just cited, the defendant not only should have anticipated the use of the premises in the evening and early morning hours, but its past behavior evidences a recognition, in the interest of safety, of the need for lighting. There clearly was a risk created by these unlit stairs in the dark early morning hours of January. Under these circumstances the question of whether the defendant had used ordinary care in rendering the premises reasonably safe was one of fact for the trier. Meiers v. Fred Koch Brewery, supra; Green v. Church of Immaculate Conception, 248 App.Div. 757, 288 N.Y.S. 769. There is nothing contrary to the ruling in Kimbar v. Estis, 1 N.Y.2d 339, 153 N.Y.S.2d 197, 135 N.E.2d 708, 710. The Court there merely held that under the circumstances proved an owner of a rustic summer children’s camp was under no duty to floodlight a beaten path because the presence of ordinary pine trees several feet from the path didn’t create “any peculiar hazard, defect, or danger.” It was recognized that absent such perils neither statute nor common law creates an invariable duty even with respect to invitees to light common ways. We do not think that the Court intended to narrow the general duty of care owed to invitees expounded in the Haefeli and Meiers cases nor can we say that a “peculiar hazard, defect or danger” was not created here by the unlit stairs. On all the evidence the ultimate finding of negligence was not unreasonable and may not be disturbed. Nor can we say that the judge below clearly erred in finding the plaintiff free from contributory negligence. McConville v. United States, 2 Cir., 197 F.2d 680, certiorari denied 344 U.S. 877, 73 S.Ct. 172, 97 L.Ed. 679. This is so even if, as the United States asserts, the burden of proof as to this issue under New York law was on the plaintiff. Mastin v. City of New York, 201 N.Y. 81, 94 N.E. 611, 33 L.R.A.,N.S., 784; Ira S. Bushey & Sons, Inc. v. United States, supra. There was evidence which the judge found credible, that frequently on prior occasions the stairway had been left unlighted: yet the plaintiff had completed deliveries without untoward incident. Especially in view of his familiarity with the premises, we cannot say as a matter of law that the plaintiff was negligent in proceeding with the delivery in the usual way merely because once again no light was provided. Nolan v. Eros Foods, Inc., 275 App.Div. 911, 89 N.Y.S.2d 655. He testified that he maintained body contact with the chute as he descended the stairway. It cannot be said categorically that it was negligent to descend without hand contact. It may be observed that “[o]ne placed in the dilemma of abandoning the reasonable course of his work or assuming a risk will not be charged with contributory negligence as a matter of law if he adopts the latter alternative.” Kaplan v. 48th Avenue Corp., 267 App.Div. 272, 45 N.Y. S.2d 510, 512. On the issue posed by the third-party complaint of the United States against McGuire and Royal the court below correctly held that under the doctrine of United States v. Gilman, 347 U.S. 507, 74 S.Ct. 695, 98 L.Ed. 898, the United States had no right of recovery over against McGuire. We must hold, however, that the court erred in thinking that the Gilman decision precluded its recovery against Royal. For by its third-party complaint against Royal the United States was not seeking indemnity from its employee, the Ship’s Service Officer, McGuire, or from Royal, as the Ship’s Service Officer’s indemnitor under its insurance policy. Instead, it sought to hold Royal, the insurer, on its policy on the theory that it, the United States, was an additional insured under the policy and so had a direct contract right against Royal to enforce the indemnity provided by the policy. The crucial question, therefore, was one of interpretation: Under the policy was the United States an insured? To solve this problem of interpretation we turn, of course, to the policy. The first clue therein is in the express “Definition of ‘Insured.’ ” This refers to the coverage of the policy “with respect to the business operation of the named insured.” And the Declarations specify as the named insured the Academy itself, as well as the Ship’s Service Officer, and speak of “insured premises” on which “the business conducted” is the “operation of the Academy.” Add to this the fact that the policy provided that the premium should be recomputed every quarter in accordance with the gross sales of the store located in what the policy called the “insured premises,” and it becomes reasonably plain that the policy was intended to cover liability for all bodily injuries caused by the operation of the business and not merely the liability attaching to any particular individuals. This conclusion is further fortified by the fact that in the “Definition of ‘Insured’ ” members of the insured group are identified not by name but as incumbents of various offices. This shows it to have been clearly contemplated that during the life of the policy, which was to continue until cancelled, its protection was to attach to a succession of incumbents. The particular offices mentioned are ones which might be thought to carry superior supervisory responsibility for the operation of the store. And to these is added as an additional insured any “other superior administrative authority.” In short, the language of the policy discloses a studied effort to include as additional insureds all those to whom the doctrine of respondeat superior could possibly apply. This, of course, would include the United States which owned and operated the Academy. The foregoing provisions make it reasonably clear, we think, that tjie policy covered the business operations of the Store, and was to afford protection to all who in the future, during the life of the policy, should come to have legal responsibility for its business operations. Just as its protection was to attach to a newly appointed Ship’s Service Officer or Academy Superintendent who never theretofore had been liable, so, we think, its protection was to attach, upon the enactment of the Federal Tort Claims Act, 28 U.S.C.A. § 2671 et seq., to the United States which theretofore could not have been held liable. The mere fact that in 1945 when the policy issued the United States could not be sued, does not import an intent that the United States should be excluded as an insured. For irrespective of its immunity from suit the United States may have deemed it in the public interest to make provision for the compensation of those injured on its premises. And that the parties recognized this interest and intended to give it effect is borne out by the Condition of the policy relating to immunity as a defense. Although under the holding of Standard Oil Co. v. Johnson, 316 U.S. 481, 485, 62 S.Ct. 1168, 86 L.Ed. 1611, the Store was a government instrumentality and as such entitled to immunity from suit, nevertheless by Condition 18 the parties stipulated that as against a tort claimant the insurer was not to raise the defense of immunity as of right. Thus the enactment of the Tort 'Claims Act, which terminated governmental immunity by legislation, added nothing to the risk covered by the policy under which by express contractual provision the insurer agreed to forego governmental immunity as a defense to a third-party claim. Consequently, from the immunity of the United States existing when the policy issued it may not be inferred that the United States was to be excluded as an insured under the policy. It was as much an insured as was its instrumentality the Academy, or the Ship’s Store. Alred v. United States, Civil No. 61-257, D.C.S.D.Cal., Sept. 30, 1958; Irvin v. United States, D.C., 148 F.Supp. 25; Rowley v. United States, D.C., 140 F.Supp. 295. For the foregoing reasons, the judgment for the plaintiff is affirmed; the judgment in favor of the third-party defendant Royal Indemnity Company is reversed. . “Insuring Agreements “Division I Liability “To pay on behalf of the insured all sums which the insured shall become obligated to pay by reason of the liability imposed upon the insured by law, or assumed by the insured under contract, including warranties of goods and products, for damages “Coverage A — Bodily Injury Liability Because of bodily injury, sickness or disease, including damages for care and loss of services and including death at any time resulting from said bodily injury, sickness or disease, sustained by any person or persons and caused by accident. 4 $ • H: $ 4 4 * “Definition of ‘Insured’ The unqualified word ‘insured’ wherever used in this division, and in other parts of this policy when applicable to this division, includes not only the named insured but also (1) under Coverages A and C with respect to the business operations of the named insured, any executive oflicer of the named insured including the commanding oflicer or commandant of the activity concerned, the commandant of the naval district or river command, the chief of naval air functional training or other superior administrative authority and the ship’s service oflicer and assistant ship’s service oflicer, while acting within the scope of his duties as such, and (2) under Coverages A and B, any person while using an automobile owned or hired by the named insured and any person or organization legally responsible for such use, and any executive ofli-cer of the named insured with respect to the use o'f a non-owncd automobile in the business of the named insured. * * * ******* “Conditions “18. Immunity as Defense The company .agrees that the fact that the insured is a government instrumentality will not be interposed as a defense in any lawsuit in which the company’s liability under the policy is in any way concerned, unless so requested in writing by the insured. In no case will such defense be requested of the company by the insured unless and until it has been specifically authorized to do so by the insured. “Declarations “Item 1. Name of insured: Ship’s Service Oflicer, United States Merchant Marine Academy. * * * # sis * * “Item 3. The business conducted in the insured premises is: Operation of Merchant Marine Academy. “Item 4. The principal location of the insured premises is: Bungs Point, Long Island, New York.” . The opinion below does not indicate whether as to this issue the burden of proof was on the plaintiff or the defendant. . See note 1, supra. . Condition 18. See note 1, supra. Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number. Answer:
songer_r_bus	1	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. BAKERY AND CONFECTIONERY WORKERS INTERNATIONAL UNION OF AMERICA, Appellant, v. Mozart G. RATNER, Appellee. No. 17655. United States Court of Appeals District of Columbia Circuit. Argued Nov. 15, 1963. Decided June 11, 1964. Mr. Abraham J. Harris, Washington, D. C., for appellant. Mr. Sheldon E. Bernstein, Washington, D. C., with whom Mr. Mozart G. Ratner, Washington, D. C., was on the brief for appellee. Mr. Paul H. Mannes, Washington, D. C., also entered an appearance for appellee. Before Edgerton, Senior Circuit Judge, and Fahy and Danaher, Circuit Judges. DANAHER, Circuit Judge. Bakery and Confectionery Workers International Union of America has appealed from an “Order and Judgment” of the District Court in favor of the appel-lee to recover $54,884.91 as counsel fees. The appellee as attorney for five local Union officers had instituted an action, C.A. 686-60, entitled Moschetta, et al. v. Cross, et al., against the International’s President, one James G. Cross; its Secretary-Treasurer, one Peter H. Olson; and five Vice Presidents of the International. All such officers at the time were members of the International’s General Executive Board and occupied positions of trust in relation to the affairs of the International and its membership. Before the District Court was a “second amended and supplemental complaint” which had charged that Bakery and Confectionery Workers’ funds had been unlawfully misappropriated by Cross and that other acts of financial corruption had occurred, with breaches of fiduciary duty and misconduct on the part of the foregoing named officers. The five plaintiffs claimed status to sue individually and also as representatives of some 70,000 Bakery and Confectionery Workers members whose welfare and interest had been damaged. After much litigation in behalf of the class and the performance of other services for the benefit of the International and its members, the appellee moved to withdraw as counsel. He also asked for the appointment of “independent” counsel to continue the class action and that he be compensated for all services and disbursements. The award entered November 6, 1962, ran against the International, its members, the class plaintiffs and others. The International alone has sought review. The appellant argues first that the International and its members may not law fully be held to payment of the judgment since 29 U.S.C. § 501(b) authorizes the trial judge merely to allot “a reasonable part of the recovery * * * to pay the fees of counsel * * * and to compensate” for expenses incurred in litigation brought pursuant to that subsection. It is argued that there was no money “recovery” in behalf of the International from which to “allot” fees and reimbursements. It is additionally con-bended that there can be no valid award running against the International without notice to its membership with respect to the fees since the International, unlike the class plaintiffs, had not been a party to any agreement with counsel, and that the award otherwise lacks support in the :record. The various phases of litigation presented in the District Court, and other .actions pursued by the appellee in be.half of the class and the International’s members reflect a complex background. 'That there had been misappropriation of Union funds is beyond question. The incumbent officers of the International had refused to seek an accounting and •other available relief. A voluntary association of Bakery and Confectionery Workers local union officers was formed, .known as the Local Union Reunification Committee, or LURC. This group was headed by the presidents of five local unions who authorized the institution of the class action, Moschetta v. Cross, to be brought pursuant to a retainer agreement between the LURC plaintiffs and counsel, with provision for litigation disbursements and costs and for compensation to the attorneys. The Moschetta complaint in the District Court had not only expressly sought to recover the counsel fees, costs and expenses incurred in prosecuting the action, but asked for substantial equitable relief including an accounting; restitution of misappropriated funds; an injunction against further misappropriation and diversion of funds of the International; an order against Cross and others to restrain them from penalizing and coercing the Moschetta plaintiffs and other persons cooperating with LURC for the purpose of preventing them from prosecuting the action and from obtaining information relevant thereto; continuous court supervision of the financial practices of the International and its officers; and a prayer that the court order a membership referendum in accordance with the constitution of the International preliminary to the calling of a national convention. The District Court found pursuant to 29 U.S.C. § 501 (b) that “good cause” had been shown for the commencement of the Moschetta proceeding. Confronted by the demands of the class plaintiffs, the record shows, Cross and others expressed willingness in 1960 to settle the pending controversy and reorganize the International. A proposed settlement agreement was filed in the District Court with a motion to dismiss the Moschetta suit, and an appropriate announcement was published in the International’s news letter. However further alleged derelictions on the part of Cross and Olson having come to light, their suspension followed in March 1961. We deem it unnecessary to particularize as to all details of the machination and obstructive tactics thereafter pursued by Cross and the Moschetta defendants. We note first that Cross and others maneuvered for control of the International’s General Executive Board. They succeeded in the installation of International Vice President Landriscina, one of the original defendants, as acting president of the International. Then in April 1961, LURC caused the appellee to reenter the case. The motion to dismiss the complaint was withdrawn and steps were taken pursuant to which the District Court fixed January, 1962 as the date for a court-supervised convention, with provision in the court’s order for the protection of LURC. We Tefer briefly to an earlier but not unrelated aspect of the problem considered by Judge Tamm. While Cross still dominated the International, various officers who had supported LURC were dismissed. Agreeably to the provisions of 29 U.S.C. § 412 as applicable under 29 U.S.C. § 529 (1961) which makes unlawful acts of reprisal against union members who exercise their rights under the Landrum-Griffin Act, one Alvino and three other high-ranking officers of the International brought suit, C.A. 2400-60, Alvino, et al. v. Bakery and Confectionery Workers International Union. The District Court granted a preliminary injunction directing their reinstatement with back pay. Such success in that action and yet other steps in the campaign conducted by and under the direction of the appellee resulted in the election of a pro-LURC slate of officers at the International’s January, 1962 convention. The International’s membership, protected by the District Court’s order, took control of the January, 1962 convention. One Kralstein, reinstated as a result of that order in the Alvino action, became president of the International. The Bakery and Confectionery Journal in February, 1962 noted the part played by LURC in bringing about the convention, particularly recognizing that LURC had been successful in the fight to remove from office the “entrenched International union officials.” At the convention, it was decided that the LURC association should be dissolved and that the International should thereupon become plaintiff in what had been the class action. Present counsel for the appellant was to represent the International. The appellee-was informed that the International, would not accept responsibility for LURC counsel fees “unless and until ordered by a court to do so.” It is un-controverted that from April, 1961 through January 25, 1962, the appellee Ratner had received no payment for his. services or those of his associates. Such in brief summary are some of the circumstances under which the ap-pellee sought to withdraw from the Moschetta case, an award of counsel fees for services rendered, and reimbursement of expenses incurred in connection therewith. Relying upon his familiarity with the entire record in all the litigation and its accompanying aspects, with the memo-randa of the respective parties before him, and on the uncontroverted affidavit of the appellee, Judge Tamm ruled orally: that appellee’s motion to withdraw from the case was to be granted; his motion to appoint “independent” counsel was to be denied but as he noted, only upon the representation by the appellant’s counsel “that the Union intends to employ independent counsel to pursue-the accounting action”; and finally as. follows: “With reference to Mr. Ratner’s motion for a fee in the amount of $54,884.91, the Court will grant the motion. The Court will grant the motion first as to the contracting parties who entered into the fee agreement. The Court will grant the motion second as to the class represented by these named plaintiffs. And third the Court will grant the motion in so far as it assesses the fees against the funds of the Union. The Court believes that this action was initiated, was undertaken, and was prosecuted in the interest of the Union membership as a whole. The Court believes that such fruits as flowed from the lengthy proceedings flowed to the benefit of the Union and for the benefit of all of its members. The Court, accordingly, grants the motion in that regard.” Thereafter Judge Tamm filed the challenged “Order and Judgment” with its award of $54,884.91 “on account of work performed and disbursements incurred” by the appellee and his associates. Recited further in that Order and Judgment are the following findings: “(3) That prior to the filing of the motion for the allowance of fees and disbursements, no protest was ever made as to the quality or nature of the services performed by Mr. Ratner or his associates nor as to the legitimacy of the billing rendered ; X * -X- X * X- “(5) That this suit was initiated and prosecuted in the interest of the Union membership as a whole and such fruits as flowed from the proceedings herein were for the benefit of the Union and all its members; namely, consisting of: “(a) A Court-ordered convention conducted in accordance with the lawful provisions of the Union’s Constitution; “(b) Court orders protecting intra-Union pre-convention political activity from illegal officer restraint and reprisal; and “(c) Court proceedings to enforce this Court’s orders, as aforesaid. “(6) That there is no basis for not honoring the aforementioned fee agreement or for withholding payment of the fees billed as aforesaid * * We are satisfied that the findings and conclusions of the trial judge are clearly supported on the record before us in all respects but one. We are concerned that he has rested the amount of the award against the International simply upon the “retainer agreement entered into between Mr. Ratner and the named plaintiffs on the latter’s behalf and on behalf of all members of the plaintiff class.” That there was a retainer agreement is beyond question. Its provisions may be taken to be controlling and to support the award insofar as liability has been asserted against the class plaintiffs. To that extent and on that basis the findings are adequate, for the compensation therein as fixed by the parties to that agreement fairly measures the services rendered to the Moschetta plaintiffs. They have not appealed. How to evaluate the legal services which inured to the benefit of the International and its membership for the period from April, 1961 through January 25, 1962 involves a different question. To be sure, compensation at the rates provided in the retainer agreement with the class plaintiffs may be considered as some evidence of the value which the ap-pellee initially placed upon his own services. But that agreement was arrived at when only the class action lay ahead. Counsel could not have then known that the Alvino suit would become necessary, nor could he have known of its important impact in paving the way for the convention. The protective court orders, the conferences and other services up to and including the convention, the ultimate reorganization of the International and its restoration to the control of its membership in accordance with the International constitution must be taken into account. The value of legal services so rendered may even be greater than a computation based upon the scale provided in the retainer agreement. In any event the services rendered by the appellee and his associates are to be measured in terms of value of the benefits afforded to the International and its membership. Since the liability of the International and its membership did not here rest upon a contract, quantum meruit provides the rule which, we are satisfied, must be applied in an ascertainment of that value. In different context but to the same end we approached a phase of this problem in Milone v. English where we said: “It lies now within the sound discretion of the -District Court, though it is under no legal compulsion to do so, to require the International to pay reasonable counsel fees to appellants’ counsel should the court find, either or both, that they have materially aided in the creation of a fund for the benefit of the International by reason of the eventualities of our remand above authorized, or that they have benefited the International in other ways.” (Emphasis added.) We thus recognized the standard to be one of reasonableness, as related to and reflecting benefits to the International “in other ways” than the mere creation of a fund. The appellant insists that section 501(b) limits the allotment of fees to the appellee to whatever money “recovery” may have become available through his efforts. We reject that contention. Congress in section 501(a) has. defined the fiduciary status of union officers. They are to execute their trust, for the benefit of the organization and its-members. Should such officers violate their trust, a member of the union is authorized under section 501(b) to initiate-steps looking toward remedial action. Thus, any such member and his counsel are to be protected, all to the end that, the membership itself may police its own. labor organization, whether the suit seeks damages or an accounting “or other appropriate relief for the benefit of the-labor organization.” Here the defalcation and pilfering of' the International’s treasury by Cross and', others, the impairment of the pension fund of the membership, the establishment of proper accounting procedures,, the calling of a convention for membership expression and control, and the requirement of conformity by the officers, with the International’s constitution in. their conduct of the business of the International were among the proper subjects of concern to the entire membership. With respect thereto, the accomplishment of benefits to the membership-as “appropriate relief” might well be achieved under court authority without monetary “recovery” as such. The payment of fees earned and reimbursement, of expenses incurred became the obligation of the International under traditional equitable principles which were-simply called into play pursuant to the-authorization for action under section 501. The claimed limitation relied upon by the appellant does not exclude the International's liability for reasonable fees,, properly earned. Rather the language is. permissive. It means no more than this:: where a monetary recovery has in fact been achieved, that fund may constitute a source from which the trial judge “may allot a reasonable part” for the payment of counsel fees and disbursements. Appellant would undercut our conclusion as to the fee liability of the International and its membership by a reference to Cunningham v. English. But there we were concerned with a unique situation where the District Court had created a Board of Monitors to assist it in exercising its equitable powers with respect to a complicated situation affecting 1,500,000 union members. The court without notice had entered a consent decree, the effect of which had engaged our attention. Here almost from the outset, the International was a party. At no time did it controvert the facts as attested in the appellee’s affidavit or as perceived and expressed by the District Judge in charge throughout. The International had received the benefits from the appellee’s services in various respects including those derived from the class action, and thereafter had taken over prosecution of the litigation. The International and its membership had notice of all proceedings and had participated therein. For the reasons but upon the basis previously treated, there remains only the matter of ascertainment of the value of the benefits to the International and its membership to predicate whatever award the District Court equitably shall determine to be due. On this account only do we now reverse. Reversed and remanded for further proceedings consistent with this opinion. . Pursuant to § 501 of the Labor-Management Reporting and Disclosure Act, 1959 (LMRDA), 73 Stat. 535 (1959), 29 U.S. C. § 501. . For example, Cross was convicted of various offenses including criminal conspiracy and embezzlement by agent and was sentenced to imprisonment. No appeal was taken. . Legal services were to be paid thus: Mozart G. Ratner, $35 per bour; Sidney Dickstein & David I. Shapiro, $25 per hour; junior associate counsel, $15 per hour. Pursuant to that agreement and for the period up to April 18, 1961, counsel were paid substantial legal fees and •expenses which are not here involved. . In due course, District Judge Tamm was designated as a “special judge” to take charge of all aspects of the litigation, including motions, pretrial proceedings and trial. Of. Handbook of Recommended Procedures for the Trial of Protracted Cases, 25 F.R.D. 351; and the sample order at 378. . Up to this point, the appellee and his associate counsel had received payment for their services under their retainer agreement with LURC. See note 3 supra. . Three separate appeals, Nos. 16474, 16478 and 16480, were brought to this court involving protective orders of the District Court. These appeals were here consolidated, only to be dismissed after the International’s convention was held in January, 1962. The appellee appeared as attorney for the Moschetta plaintiffs in these cases. . The appellant on brief tells us: “The Moschetta case succeeded in forcing the convention some months earlier in 1962 than it otherwise would have been held, since anti-LURC forces planned a convention for the fall of 1962. This was-the one tangible achievement of the litigation.” . See vote 3 supra. . Text, supra, and see 46 LRRM 2812 (D. D.C.1960). Judge Tamm expressly found —correctly we think — that the appellee’s services in the Alvino case were to be covered by the compensation award. . 113 U.S.App.D.C. 207, 212, 306 F.2d 814, 819 (1962) ; and see Angoff v. Goldfine, 270 F.2d 185, 188-189 (1 Cir. 1959). . Johnson v. Nelson, 325 F.2d 646, 650 (8 Cir. 1963) ; and see generally, Counsel Fees For Union Officers Under The Fiduciary Provision of Landrum-Griffin, 73 Yale L.J. 443, 468, 470 (1964). . Sprague v. Ticonic Bank, 307 U.S. 161, 166-167, 59 S.Ct. 777, 83 L.Ed. 1184 (1939). Here an assessment of less than one dollar per member would discharge the-entire judgment as awarded here against the International. . 106 U.S.App.D.C. 92, 94, 269 F.2d 539, 541 (1959), where we said: “Notice should have been given to the membership before approval by a court of equity of this obligation upon union funds, oven if not required by Rule 23.” Apart from appellant’s failure to make a record on this ground in the District Court, the situation here is clearly distinguishable. . English v. Cunningham, 106 U.S.App. D.C. 70, 74, 269 F.2d 517, 521 (1959). . Ibid., cert. denied, 361 U.S. 897, 80 S. Ct. 195, 4 L.Ed.2d 152 (1959), and memorandum of Mr. Justice Frankfurter at 361 U.S. 905, 909-910, 80 S.Ct. 187, 188, 189. . He found that there was “no basis * * * for withholding payment of the fees,” but added “as billed,” i. e. per the retainer agreement. This latter phase has been discussed, text supra. . Cf. Angoff v. Goldfine, supra note 10, 270 F.2d at 188-93; Wyoming Ry. Co. v. Herrington, 163 F.2d 1004, 1006-1007 (10 Cir. 1947) ; Blackhurst v. Johnson, 72 F.2d 644, 648 (8 Cir. 1934). . Cf. Sherwin v. Welch, 115 U.S.App). D.C. 328, 331, 319 F.2d 729. 732 (1963). Question: What is the total number of respondents in the case that fall into the category "private business and its executives"? Answer with a number. Answer:
sc_casesource	024	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. NICHOLAS, TRUSTEE v. UNITED STATES. No. 650. Argued April 19, 1966. Decided June 13, 1966. John H. Gunn argued the cause and filed briefs for petitioner. C. Moxley Featherston argued the cause for the United States. On the brief were Solicitor General Marshall, Assistant Attorney General Rogovin, Robert S. Rifkind and I. Henry Kutz. Harry S. Gleick filed a brief for Jerome Kalishman, as amicus curiae, urging reversal. Mr. Justice Stewart delivered the opinion of the Court. The question presented in this case is whether a superseding trustee in bankruptcy is liable for interest and penalties on federal taxes incurred by a debtor in possession during an arrangement proceeding under Chapter XI of the Bankruptcy Act. The facts are not in dispute. On August 6, 1958, Beachcomber Motel, Inc., a Florida corporation operating a motel in Miami Beach, filed an original petition for an arrangement with its unsecured creditors under Chapter XI. Bankruptcy Act §322, 11 U. S. C. § 722 (1964 ed.). During the pend-ency of the arrangement proceeding, the corporation was permitted to operate its business as a debtor in possession under the authority of the bankruptcy court. In the course of its business operations, the corporation withheld federal income taxes and social security taxes from the wages paid to its employees and collected federal excise taxes on the receipts from its cabaret. Subsequently, the corporation was dispossessed of its property and the motel premises were closed. Unable to proceed with a plan of arrangement with its creditors, the corporation filed a petition in bankruptcy on September 17, 1958, and was adjudged a bankrupt on the same date. Bankruptcy Act § 376 (2), 11 U. S. C. § 776 (2) (1964 ed.). On September 19, 1958, a trustee in bankruptcy, the petitioner in this case, was appointed. On October 31, 1958, the federal income taxes withheld, as well as the social security taxes and the cabaret taxes, were due to be paid. On January 31, 1959, the payroll tax imposed on employers by the Federal Unemployment Tax Act was due. The trustee in bankruptcy neither paid these, taxes nor filed any of the returns required with respect to them. On April 11, 1963, the United States submitted an administrative expense statement in the bankruptcy proceeding, claiming as administrative expenses the principal of the taxes due, penalties assessed for the trustee’s failure to file the returns for the taxes, and interest that had accumulated and would continue to accumulate on the taxes and penalties until they were paid. The referee in bankruptcy allowed the Government’s claim for the principal of the taxes but disallowed the claims for penalties and interest. The referee’s order was affirmed in all respects by the District Court. The Court of Appeals for the Fifth Circuit reversed the judgment of the District Court and allowed the claims for penalties and interest on the taxes. 346 F. 2d 32. Shortly after that decision, the Court of Appeals for the Eighth Circuit reached the opposite result with respect to a similar claim by the Government for interest on taxes incurred during a Chapter XI proceeding, and we granted certiorari to resolve this conflict. 382 U. S. 971. I. It is a well-settled principle of American bankruptcy law that in cases of ordinary bankruptcy, the accumulation of interest on claims against a bankrupt estate is suspended as of the date the petition in bankruptcy is filed. Sexton v. Dreyfus, 219 U. S. 339. That rule, grounded in historical considerations of equity and administrative convenience, was specifically made applicable to the accumulation of interest on claims for taxes by the decision of this Court in New York v. Saper, 336 U. S. 328. The debts in Sexton, like the taxes in Saper, were incurred during the regular business operations of the taxpayer, prior to the invocation of any procedures under the Bankruptcy Act, whereas the taxes in the present case were incurred after a petition invoking Chapter XI of the Act had been filed. On the basis of that distinction, the Government contends that the taxes here in question were entitled to bear interest throughout the bankruptcy period. We draw no such conclusion from that distinction. We believe that the decisions of this Court in Sexton and Saper reflect the broad equitable principle that creditors should not be disadvantaged vis-á-vis one another by legal delays attributable solely to the time-consuming procedures inherent in the administration of the bankruptcy laws. In the context of interest-bearing debts, the equitable principle enunciated in Sexton and Saper rests at bottom on an awareness of the inequity that would result if, through the continuing accumulation of interest in the course of subsequent bankruptcy proceedings, obligations bearing relatively high rates of interest were permitted to absorb the assets of a bankrupt estate whose funds were already inadequate to pay the principal of the debts owed by the estate. To be sure, the amount of interest that accumulates on a debt incurred during a Chapter XI arrangement depends upon the duration of a proceeding that takes place under the direction and authority of the bankruptcy court. Bankruptcy Act §§ 342, 343, 11 U. S. C. §§ 742, 743 (1964 ed.). But interest claimed on such a debt does not arise through a “delay” of the law in any meaningful sense. The underlying obligation of the debtor in possession is incurred as part of a judicial process of rehabilitation of the debtor that the procedures of Chapter XI are designed to facilitate. Interest on a current Chapter XI obligation is therefore different in kind from interest claimed during the arrangement period on a debt incurred before the Chapter XI petition was filed. From the vantage point of prearrangement creditors, the panorama of a Chapter XI proceeding is intimately bound up with the intrusion of the bankruptcy law into the previously untrammelled relationship between a debtor and his creditors. For these creditors, the filing of the Chapter XI petition may legitimately be regarded as introducing the very sort of legal delay that bankruptcy courts, in denying claims for interest, have traditionally characterized as inequitable. On the other hand, from the vantage point of the creditor whose credit relationship arose during the Chapter XI proceeding itself, it is the subsequent filing of a petition in bankruptcy that marks the intervention of meaningful legal delays. The equitable rationale underlying our decisions in Sexton and ¡Saper is therefore fully applicable to cases in which a Chapter XI proceeding is superseded by a liquidating bankruptcy. The principle that our past decisions thus establish is that the accumulation of interest on a debt must be suspended once an enterprise enters a period of bankruptcy administration beyond that in which the underlying interest-bearing obligation was incurred. In Saper, there were two relevant periods to be considered — the pre-petition period, before the petition in bankruptcy was filed, and the post-petition period, during the bankruptcy liquidation. The Court there upheld the accumulation of interest throughout the pre-petition period on taxes incurred during that period; it rejected only the claim for post-petition interest on the pre-petition taxes. By contrast, the circumstances of the present case commend a division into three periods — the pre-arrangement period, the arrangement period, and the liquidating bankruptcy period. A tax incurred within any one of these three periods would, we think, be entitled to bear interest against the bankrupt estate until, but not beyond, the close of the period in which it was incurred. Thus, in a case concerning taxes incurred during the first period— that is, before the filing of a petition for a Chapter XI arrangement — the Court has summarily affirmed a judgment holding that the accumulation of interest must be suspended as of the date the Chapter XI petition was filed. Where, as in the present case, the taxes have been incurred in the Chapter XI proceeding itself, application of the principle enunciated in Sexton and Saper permits interest to accrue throughout the arrangement proceeding; the principle requires only that the accumulation of interest be suspended once a petition in bankruptcy is filed. The allowance of interest on Chapter XI debts until the filing of a petition in bankruptcy promotes the availability of capital to a debtor in possession and enhances the likelihood of achieving the goal of the proceeding, the ultimate rehabilitation of the debtor. Disallowance of interest on Chapter XI debts might seriously hinder the availability of such funds and might in many cases foreclose the prospect of the debtor’s recovery. No such significant detriment to the viability of a Chapter XI proceeding is imposed by the suspension of interest once the proceeding enters the liquidating bankruptcy period, since potential creditors can readily adjust their interest rates to accommodate their prognosis of the particular debtor’s chances of rehabilitation. The division of the proceedings in the present case into three separate periods defining the permissible accumulation of interest is supported by the threefold hierarchy of priorities for tax claims under the Bankruptcy Act. Taxes incurred in the pre-arrangement period must be content with a fourth priority under § 64a (4) of the Bankruptcy Act. On the other hand, taxes incurred during the arrangement period are expenses of the Chapter XI proceedings and are therefore technically a part of the first priority under § 64a (1). The final sentence of that section, however, subordinates arrangement expenses within that priority to the expenses of the superseding bankruptcy administration. Tax claims incurred during Chapter XI proceedings are therefore in fact junior to claims for expenses incurred in subsequent bankruptcy proceedings. The suspension of interest on taxes incurred during the arrangement period as of the date a bankruptcy petition is filed thus corresponds to the suspension of interest on pre-arrangement taxes when a Chapter XI petition is filed. Moreover, the suspension of interest extricates the superseding trustee from a serious dilemma he would otherwise face, whether to pay subordinated Chapter XI tax claims prematurely in order to forestall the accrual of interest, or to increase the burden on the bankrupt estate by allowing the interest to accumulate. Aside from its basis in the equitable principle that creditors of a bankrupt estate should not be disadvantaged solely by means of the law’s delay, the confinement of the accrual of interest on Chapter XI obligations to the arrangement proceeding itself is also grounded in significant considerations of administrative convenience. As the Court recognized in Vanston Bondholders Protective Committee v. Green, 329 U. S. 156, 164, “Accrual of simple interest on unsecured claims in bankruptcy was prohibited in order that the administrative inconvenience of continuous recomputation of interest causing recompu-tation of claims could be avoided.” Thus, by accepting as a cut-off the date of filing of the petition in bankruptcy, the trustee avoids the potentially laborious procedure of recalculating the pro rata share to which each Chapter XI creditor is entitled whenever a distribution in the supervening bankruptcy is carried out. The application of the principle of our past decisions to the facts of the present case is straightforward. Since the taxes in question were incurred during the Chapter XI arrangement proceeding itself, the United States was entitled to interest on those taxes for the duration of that period. The actual arrangement proceeding in this case, however, terminated before the taxes became payable, and, therefore, no interest on the taxes accumulated before the petition in bankruptcy was filed by the debtor in possession. The entire amount of interest sought by the United States represents interest claimed for the liquidating bankruptcy period. Since we hold that the accumulation of interest on debts incurred during Chapter XI proceedings is suspended on the date the petition in the superseding bankruptcy is filed, it is clear that the United States is not entitled to the interest that it seeks on the taxes in this case. The result here is in no way inconsistent with the provisions of 28 U. S. C. § 960, which states that persons conducting a business under the authority of a federal court shall be taxed as if they were conducting a private business. As an officer of the bankruptcy court, the debtor in possession was fully subject to taxes and interest incurred during his operation of the business in the Chapter XI arrangement. Nothing in the general language of 28 U. S. C. § 960, however, necessarily subjects the trustee in the superseding bankruptcy proceeding to an obligation to pay additional interest on those prior taxes once a petition in bankruptcy has been filed. United States v. Kalishman, 346 F. 2d 514; cf. New York v. Saper, 336 U. S. 328; United States v. General Engineering & Mfg. Co., 188 F. 2d 80 (C. A. 8th Cir.), aff’d, 342 U. S. 912. In the absence of explicit congressional direction, the considerations of equity and administrative convenience established by our decisions under the Bankruptcy Act clearly support this interpretation of the scope of this provision of the Judicial Code. We find no merit in the Government’s alternative suggestion that the interest on two of the taxes here in question — those withheld from the wages of employees and those collected from the patrons of the cabaret — constitutes a trust fund over which the United States has an absolute priority under § 7501 (a) of the Internal Revenue Code. We need not here determine whether, with regard to the principal of those taxes, the general language of § 7501 (a) overrides the strong policy of §64a(1) of the Bankruptcy Act, which establishes a sharply defined priority that places all expenses of administration on a parity, including claims for taxes. Cf. Guarantee Co. v. Title Guaranty Co., 224 U. S. 152; Davis v. Pringle, 268 U. S. 315; Missouri v. Ross, 299 U. S. 72. The second sentence of § 7501 (a) specifically provides that interest on such a trust fund is collectible in the same manner as the taxes from which the fund arose. Since we have already determined that no interest on any of the taxes here in question accrues beyond the period of the arrangement proceeding, no interest could accumulate on a trust fund composed of the withholding and cabaret taxes. We therefore reverse the judgment of the Court of Appeals with regard to the liability of the trustee for the interest on the taxes. II. The validity of the claim by the United States against the trustee for penalties for failure to file the returns for the taxes in question presents a completely different issue. The result here is governed squarely by the rationale of our decision in Boteler v. Ingels, 308 U. S. 57, in which we sustained a penalty against a trustee in bankruptcy who failed to pay state automobile license taxes incurred while he was operating the business of the bankrupt estate' for the purpose of liquidation. We held in Boteler that Congress, under the predecessor of 28 U. S. C. § 960, had “with vigor and clarity declared that a trustee and other court appointees who operate businesses must do so subject to state taxes ‘the same as if such business [es] were conducted by an individual or corporation.’ ” 308 U. S., at 61. As we stated in Boteler, if the trustee were exempt from the penalty, a “State would thus be accorded the theoretical privilege of taxing businesses operated by trustees in bankruptcy on an equal footing with all other businesses, but would be denied the traditional and almost universal method of enforcing prompt payment.” Id., at 61. The same considerations are equally applicable to the present case. It is conceded that the trustee, in his status as representative of the bankrupt estate and successor in interest to the debtor in possession, is liable for the principal of the taxes incurred by the debtor in possession, to the extent of the priority enjoyed by the taxes under § 64a (1) of the Bankruptcy Act. Once that liability is established, there can be no question that, under § 6011 (a) of the Internal Revenue Code, the trustee was under an obligation to file returns for these taxes, even though the taxes themselves were incurred by the debtor in possession during the pendency of the arrangement proceeding. It therefore follows under Boteler that, in the circumstances of the present case, where a Chapter XI arrangement has been superseded by a liquidating bankruptcy under the Bankruptcy Act, the United States is entitled to exact the penalties here in question as a legitimate means to enforce the prompt filing of the tax returns. Although the rule in Boteler may be open to some question as applied to the facts of that case, no such difficulty is presented here. In Boteler, the trustee was penalized for his failure actually to pay the license fees within the time period prescribed by the State, even though it could not have been clear at that date that the assets of the bankrupt estate would be sufficient to pay-all of the expenses of administration that were entitled to share equally with the taxes under the first priority of § 64a (1) of the Bankrupty Act in any distribution of assets from the estate. In the present case, on the other hand, the penalties were imposed solely because of the trustee’s failure to file timely returns for the taxes incurred during the Chapter XI arrangement period. No legitimate interest would be served by permitting the trustee to escape the unburdensome responsibility of merely filing the returns and thereby notifying the United States of the taxes that are due. We therefore affirm the judgment of the Court of Appeals with regard to the liability of the trustee for the penalties in question. For the reasons stated, the judgment of the Court of Appeals for the Fifth Circuit is affirmed in part and reversed in part, and the case is remanded to the Court of Appeals for further proceedings consistent with this opinion. It is so ordered. Internal Revenue Code of 1954, §3402, 26 U. S. C. §3402 (1964 ed.). Internal Revenue Code of 1954, § 3102, 26 U. S. C. § 3102 (1964 ed.). See also Internal Revenue Code of 1954, §3111, 26 U. S. C. §3111 (1964 ed.). Internal Revenue Code of 1954, § 4231 (6), 26 U. S. C. § 4231 (6) (1964 ed.). Internal Revenue Code of 1954, § 3301, 26 U. S. C. § 3301 (1964 ed.). See § 6651 (a) of the Internal Revenue Code of 1954, 26 U. S. C. § 6651 (a) (1964 ed.), which provides: “Addition to the tax. “In case of failure to file any return.,. on the date prescribed therefor (determined with regard to any extension of time for filing), unless it is shown that such failure is due to reasonable cause and not due to willful neglect, there shall be added to the amount required to be shown as tax on such return 5 percent of the amount of such tax if the failure is for not more than 1 month, with an additional 5 percent for each additional month or fraction thereof during which such failure continues, not exceeding 25 percent in the aggregate.” The maximum penalty of 25% was assessed on the withholding, cabaret, and social security taxes, and a 15% penalty was assessed on the payroll tax. No question is raised in this ease concerning the statutory requirement of willfulness. See § 6601 (a) of the Internal Bevenue Code of 1954, 26 U. S. C. § 6601 (a) (1964 ed.), which provides: “General rule. “If any amount of tax imposed by this title (whether required to be shown on a return, or to be paid by stamp or by some other method) is not paid on or before the last date prescribed for payment, interest on such amount at the rate of 6 percent per annum shall be paid for the period from such last date to the date paid.” The referee did in fact allow part of the Government’s claim for interest, representing the portion that had accrued to the dates the respective taxes were assessed against the bankrupt corporation. The trustee sought no review of this anomalous aspect of the referee’s order, and the allowance of this portion of the interest is not an issue in this case. Nor did the trustee challenge the referee’s allowance of the principal of the taxes as an expense of administration. See Dayton v. Stanard, 241 U. S. 588; Michigan v. Michigan Trust Co., 286 U. S. 334; In re Lambertville Rubber Co., 111 F. 2d 45 (C. A. 3d Cir.); In re Columbia Ribbon Co., 117 F. 2d 999 (C. A. 3d Cir.); McColgan v. Maier Brewing Co., 134 F. 2d 385 (C. A. 9th Cir.); 3 Collier on Bankruptcy 2088 (14th ed. 1964). United States v. Kalishman, 346 F. 2d 514. Cf. Thomas v. Western Car Co., 149 U. S. 95, 116-117. It is clear that the interest-bearing quality of the debt is suspended, rather than extinguished, by the filing of a petition in bankruptcy. In certain circumstances not here relevant, the accrual of interest may continue during the period of bankruptcy administration. Cf. Bruning v. United States, 376 U. S. 358; 3 Collier on Bankruptcy 1858 et seq. (14th ed. 1964). See 2 Blackstone, Commentaries *488 (Cooley ed. 1899). The decision of the Court in New York v. Saper, 336 U. S. 328, reflected an assimilation of tax debts to the status of other debts in bankruptcy. At the time Sexton v. Dreyfus, 219 U. S. 339, was decided, taxes incurred before bankruptcy enjoyed a highly preferred status in the succeeding bankruptcy liquidation. Thus, § 64a of the Bankruptcy Act of 1898, 30 Stat. 563, granted an absolute priority to claims for taxes and imposed an affirmative duty on the trustee in bankruptcy to seek out and ascertain the amount of taxes owed and to obtain an order from the bankruptcy court for payment. See New York v. Saper, 336 U. S. 328, 333. As a concomitant of their absolute priority, tax claims were permitted to accumulate interest even after the date the petition in bankruptcy was filed. See In re Kallak, 147 F. 276 (D. C. D. N. D.); United States v. Childs, 266 U. S. 304. In 1938, however, Congress amended the Bankruptcy Act by reducing tax debts to the status of a fourth priority, 52 Stat. 874, 11 U. S. C. § 104 (a) (1964 ed.), and by requiring tax claims to be proved in the bankruptcy proceeding like ordinary debts, 52 Stat. 867, 11 U. S. C. § 93 (n) (1964 ed.). Cf. Act of May 27, 1926, c. 406, § 15, 44 Stat. 666; Wurzel, Taxation During Bankruptcy Liquidation, 55 Harv. L. Rev. 1141, 1145-1146. In Saper, the Court held that, in the light of these amendments, tax debts had become sufficiently clothed with the characteristics of other bankruptcy debts to justify the application of the general rule in Sexton to suspend the accrual of interest on such claims on the date the petition in bankruptcy was filed. As Mr. Justice Holmes stated with regard to interest on a secured debt in Sexton v. Dreyfus, 219 U. S. 339, 344-345: “The rule is not unreasonable when closely considered. It simply fixes the moment when the affairs of the bankrupt are supposed to be wound up. If, as in a well known illustration of Chief Justice Shaw’s, Parks v. Boston, 15 Pick. 198, 208, the whole matter could be settled in a day by a pie-powder court, the secured creditor would be called upon to sell or have his security valued on the spot, would receive a dividend upon that footing, would suffer no injustice, and could not complain.” See American Iron & Steel Manufacturing Co. v. Seaboard Air Line Railway, 233 U. S. 261, a case of equity receivership, where the Court stated that the general rule barring post-petition interest on pre-petition claims is not based on the fact that the claims “had lost their interest-bearing quality during that period, but is a necessary and enforced rule of distribution, due to the fact that in case of receiverships the assets are generally insufficient to pay debts in full. If all claims were of equal dignity and all bore the same rate of interest, from the date of the receivership to the date of final distribution, it would be immaterial whether the dividend was calculated on the basis of the principal alone or of principal and interest combined. But some of the debts might carry a high rate and some a low rate, and hence inequality would result in the payment of interest which accrued during the delay incident to collecting and distributing the funds. As this delay was the act of the law, no one should thereby gain an advantage or suffer a loss. For that and like reasons, in case funds are not sufficient to pay claims of equal dignity, the distribution is made only on the basis of the principal of the debt.” 233 U. S., at 266. See also Vanston Bondholders Protective Committee v. Green, 329 U. S. 156, 164: “Moreover, different creditors whose claims bore diverse interest rates or were paid by the bankruptcy court on different dates would suffer neither gain nor loss caused solely by delay.” This equitable doctrine was itself the product of compromise between the interests of competing creditors; it was at least arguable that the intervention of bankruptcy should have prohibited payment even of pre-petition interest on debts until the principal of the debts was paid. See 3 Collier on Bankruptcy 1855-1856 (14th ed. 1964). Nothing in the general language of § 378 (2) of the Bankruptcy Act, 11 U. S. C. § 778 (2) (1964 ed.), which provides that a bankruptcy proceeding superseding a Chapter XI proceeding “shall be conducted, so far as possible, in the same manner and with like effect as if a voluntary petition for adjudication in bankruptcy had been filed and a decree of adjudication had been entered on the day when the petition under this chapter [XI] was filed,” requires us to collapse these important distinctions between an arrangement proceeding and a superseding bankruptcy and to treat the taxes in question here as though they were incurred in the bankruptcy proceeding itself. United States v. General Engineering & Mfg. Co., 188 F. 2d 80 (C. Question: What is the court whose decision the Supreme Court reviewed? 001. U.S. Court of Customs and Patent Appeals 002. U.S. Court of International Trade 003. U.S. Court of Claims, Court of Federal Claims 004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces 005. U.S. Court of Military Review 006. U.S. Court of Veterans Appeals 007. U.S. Customs Court 008. U.S. Court of Appeals, Federal Circuit 009. U.S. Tax Court 010. Temporary Emergency U.S. Court of Appeals 011. U.S. Court for China 012. U.S. Consular Courts 013. U.S. Commerce Court 014. Territorial Supreme Court 015. Territorial Appellate Court 016. Territorial Trial Court 017. Emergency Court of Appeals 018. Supreme Court of the District of Columbia 019. Bankruptcy Court 020. U.S. Court of Appeals, First Circuit 021. U.S. Court of Appeals, Second Circuit 022. U.S. Court of Appeals, Third Circuit 023. U.S. Court of Appeals, Fourth Circuit 024. U.S. Court of Appeals, Fifth Circuit 025. U.S. Court of Appeals, Sixth Circuit 026. U.S. Court of Appeals, Seventh Circuit 027. U.S. Court of Appeals, Eighth Circuit 028. U.S. Court of Appeals, Ninth Circuit 029. U.S. Court of Appeals, Tenth Circuit 030. U.S. Court of Appeals, Eleventh Circuit 031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction) 032. Alabama Middle U.S. District Court 033. Alabama Northern U.S. District Court 034. Alabama Southern U.S. District Court 035. Alaska U.S. District Court 036. Arizona U.S. District Court 037. Arkansas Eastern U.S. District Court 038. Arkansas Western U.S. District Court 039. California Central U.S. District Court 040. California Eastern U.S. District Court 041. California Northern U.S. District Court 042. California Southern U.S. District Court 043. Colorado U.S. District Court 044. Connecticut U.S. District Court 045. Delaware U.S. District Court 046. District Of Columbia U.S. District Court 047. Florida Middle U.S. District Court 048. Florida Northern U.S. District Court 049. Florida Southern U.S. District Court 050. Georgia Middle U.S. District Court 051. Georgia Northern U.S. District Court 052. Georgia Southern U.S. District Court 053. Guam U.S. District Court 054. Hawaii U.S. District Court 055. Idaho U.S. District Court 056. Illinois Central U.S. District Court 057. Illinois Northern U.S. District Court 058. Illinois Southern U.S. District Court 059. Indiana Northern U.S. District Court 060. Indiana Southern U.S. District Court 061. Iowa Northern U.S. District Court 062. Iowa Southern U.S. District Court 063. Kansas U.S. District Court 064. Kentucky Eastern U.S. District Court 065. Kentucky Western U.S. District Court 066. Louisiana Eastern U.S. District Court 067. Louisiana Middle U.S. District Court 068. Louisiana Western U.S. District Court 069. Maine U.S. District Court 070. Maryland U.S. District Court 071. Massachusetts U.S. District Court 072. Michigan Eastern U.S. District Court 073. Michigan Western U.S. District Court 074. Minnesota U.S. District Court 075. Mississippi Northern U.S. District Court 076. Mississippi Southern U.S. District Court 077. Missouri Eastern U.S. District Court 078. Missouri Western U.S. District Court 079. Montana U.S. District Court 080. Nebraska U.S. District Court 081. Nevada U.S. District Court 082. New Hampshire U.S. District Court 083. New Jersey U.S. District Court 084. New Mexico U.S. District Court 085. New York Eastern U.S. District Court 086. New York Northern U.S. District Court 087. New York Southern U.S. District Court 088. New York Western U.S. District Court 089. North Carolina Eastern U.S. District Court 090. North Carolina Middle U.S. District Court 091. North Carolina Western U.S. District Court 092. North Dakota U.S. District Court 093. Northern Mariana Islands U.S. District Court 094. Ohio Northern U.S. District Court 095. Ohio Southern U.S. District Court 096. Oklahoma Eastern U.S. District Court 097. Oklahoma Northern U.S. District Court 098. Oklahoma Western U.S. District Court 099. Oregon U.S. District Court 100. Pennsylvania Eastern U.S. District Court 101. Pennsylvania Middle U.S. District Court 102. Pennsylvania Western U.S. District Court 103. Puerto Rico U.S. District Court 104. Rhode Island U.S. District Court 105. South Carolina U.S. District Court 106. South Dakota U.S. District Court 107. Tennessee Eastern U.S. District Court 108. Tennessee Middle U.S. District Court 109. Tennessee Western U.S. District Court 110. Texas Eastern U.S. District Court 111. Texas Northern U.S. District Court 112. Texas Southern U.S. District Court 113. Texas Western U.S. District Court 114. Utah U.S. District Court 115. Vermont U.S. District Court 116. Virgin Islands U.S. District Court 117. Virginia Eastern U.S. District Court 118. Virginia Western U.S. District Court 119. Washington Eastern U.S. District Court 120. Washington Western U.S. District Court 121. West Virginia Northern U.S. District Court 122. West Virginia Southern U.S. District Court 123. Wisconsin Eastern U.S. District Court 124. Wisconsin Western U.S. District Court 125. Wyoming U.S. District Court 126. Louisiana U.S. District Court 127. Washington U.S. District Court 128. West Virginia U.S. District Court 129. Illinois Eastern U.S. District Court 130. South Carolina Eastern U.S. District Court 131. South Carolina Western U.S. District Court 132. Alabama U.S. District Court 133. U.S. District Court for the Canal Zone 134. Georgia U.S. District Court 135. Illinois U.S. District Court 136. Indiana U.S. District Court 137. Iowa U.S. District Court 138. Michigan U.S. District Court 139. Mississippi U.S. District Court 140. Missouri U.S. District Court 141. New Jersey Eastern U.S. District Court (East Jersey U.S. District Court) 142. New Jersey Western U.S. District Court (West Jersey U.S. District Court) 143. New York U.S. District Court 144. North Carolina U.S. District Court 145. Ohio U.S. District Court 146. Pennsylvania U.S. District Court 147. Tennessee U.S. District Court 148. Texas U.S. District Court 149. Virginia U.S. District Court 150. Norfolk U.S. District Court 151. Wisconsin U.S. District Court 152. Kentucky U.S. Distrcrict Court 153. New Jersey U.S. District Court 154. California U.S. District Court 155. Florida U.S. District Court 156. Arkansas U.S. District Court 157. District of Orleans U.S. District Court 158. State Supreme Court 159. State Appellate Court 160. State Trial Court 161. Eastern Circuit (of the United States) 162. Middle Circuit (of the United States) 163. Southern Circuit (of the United States) 164. Alabama U.S. Circuit Court for (all) District(s) of Alabama 165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas 166. California U.S. Circuit for (all) District(s) of California 167. Connecticut U.S. Circuit for the District of Connecticut 168. Delaware U.S. Circuit for the District of Delaware 169. Florida U.S. Circuit for (all) District(s) of Florida 170. Georgia U.S. Circuit for (all) District(s) of Georgia 171. Illinois U.S. Circuit for (all) District(s) of Illinois 172. Indiana U.S. Circuit for (all) District(s) of Indiana 173. Iowa U.S. Circuit for (all) District(s) of Iowa 174. Kansas U.S. Circuit for the District of Kansas 175. Kentucky U.S. Circuit for (all) District(s) of Kentucky 176. Louisiana U.S. Circuit for (all) District(s) of Louisiana 177. Maine U.S. Circuit for the District of Maine 178. Maryland U.S. Circuit for the District of Maryland 179. Massachusetts U.S. Circuit for the District of Massachusetts 180. Michigan U.S. Circuit for (all) District(s) of Michigan 181. Minnesota U.S. Circuit for the District of Minnesota 182. Mississippi U.S. Circuit for (all) District(s) of Mississippi 183. Missouri U.S. Circuit for (all) District(s) of Missouri 184. Nevada U.S. Circuit for the District of Nevada 185. New Hampshire U.S. Circuit for the District of New Hampshire 186. New Jersey U.S. Circuit for (all) District(s) of New Jersey 187. New York U.S. Circuit for (all) District(s) of New York 188. North Carolina U.S. Circuit for (all) District(s) of North Carolina 189. Ohio U.S. Circuit for (all) District(s) of Ohio 190. Oregon U.S. Circuit for the District of Oregon 191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania 192. Rhode Island U.S. Circuit for the District of Rhode Island 193. South Carolina U.S. Circuit for the District of South Carolina 194. Tennessee U.S. Circuit for (all) District(s) of Tennessee 195. Texas U.S. Circuit for (all) District(s) of Texas 196. Vermont U.S. Circuit for the District of Vermont 197. Virginia U.S. Circuit for (all) District(s) of Virginia 198. West Virginia U.S. Circuit for (all) District(s) of West Virginia 199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin 200. Wyoming U.S. Circuit for the District of Wyoming 201. Circuit Court of the District of Columbia 202. Nebraska U.S. Circuit for the District of Nebraska 203. Colorado U.S. Circuit for the District of Colorado 204. Washington U.S. Circuit for (all) District(s) of Washington 205. Idaho U.S. Circuit Court for (all) District(s) of Idaho 206. Montana U.S. Circuit Court for (all) District(s) of Montana 207. Utah U.S. Circuit Court for (all) District(s) of Utah 208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota 209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota 210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma 211. Court of Private Land Claims Answer:
songer_appsubst	1	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "sub-state governments, their agencies, and officials". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES LOCAL 506, Plaintiff-Appellee, v. The PRIVATE INDUSTRY COUNCIL OF TRUMBULL COUNTY, and City of Niles, Ohio, Defendants, Joseph J. Parise, Mayor, Defendant-Appellant. No. 90-3710. United States Court of Appeals, Sixth Circuit. Argued July 30, 1991. Decided Aug. 20, 1991. David L. Engler (argued), Youngstown, Ohio, for plaintiff-appellee. Joseph T. Dull (argued), Niles, Ohio, for defendant-appellant. Before MARTIN and MILBURN, Circuit Judges, and CONTIE, Senior Circuit Judge. MILBURN, Circuit Judge. Defendant Joseph J. Parise, Mayor of the City of Niles, Ohio, appeals the judgment of the district court holding that the Mayor and the City violated 29 U.S.C. § 1553(b)(3) of the Job Training Partnership Act, and enjoining defendants from placing Summer Youth Employment Training Program participants in the City’s street department. The principal issues on appeal are (1) whether the Job Training Partnership Act provides an implied private right of action, (2) whether reduction of a work force through attrition violates 29 U.S.C. § 1553(b)(3)(B), and (3) whether this action was barred by the doctrine of issue preclusion following the administrative proceedings. For the reasons that follow, the judgment of the district court is reversed, and the injunction against the defendants is vacated and dissolved. I. This case arose out of the planned participation by the City of Niles, Ohio, in the Summer Youth Employment Training Program (“SYETP”), administered by the Private Industry Council (“PIC”) of Trumbull County, Ohio. SYETP is authorized and funded by the Job Training Partnership Act of 1982 (“JTPA”), 29 U.S.C. § 1501 et seq., which replaced the Comprehensive Employment and Training Act (“CETA”), 29 U.S.C. § 801 et seq. The City of Niles requested SYETP participants to work in various city service departments for the summer of 1989. The American Federation of State, County, and Municipal Employees Local 506 (“AFSCME”) represents employees who work in the city service departments. The collective bargaining agreement between AFSCME and the City contained no provision regarding the minimum number of workers to be employed by the City. On April 18, 1989, AFSCME filed a complaint seeking a preliminary and permanent injunction to prevent PIC, the City of Niles, and the Mayor from placing SYETP participants in various city service departments including parks and recreation, street, and water. On May 4 and May 15, 1989, the district court conducted a hearing on AFSCME’s motion for a preliminary injunction. Without addressing the merits of the case, the district court denied AFSCME’s motion on the grounds that it had failed to exhaust the administrative remedies required by the JTPA, and the court transferred the case to its non-assigned docket. AFSCME pursued its administrative remedies by filing a complaint pursuant to the procedure established by the JTPA. On August 16, 1989, a local level hearing officer issued a decision denying AFSCME’s complaint, and the decision was adopted and affirmed by a state level hearing officer on September 22, 1989. On May 16, 1990, AFSCME filed a motion in the district court to transfer the case from the non-assigned to the active docket asserting that it had exhausted the grievance procedure provided by the JTPA, and it now sought review of the administrative decision pursuant to 29 U.S.C. § 1554. The district court granted the motion to reactivate the case and subsequently granted AFSCME leave to amend its complaint to seek declaratory relief. On June 25, 1990, the district court conducted a hearing on the merits, and on July 12, 1990, the court entered a judgment and memorandum opinion holding that the JTPA provided AFSCME an implied private right of action against the City for alleged violations of 29 U.S.C. § 1553(b)(3). The district court held that the City of Niles and Mayor Parise violated 29 U.S.C. § 1553(b)(3) by reducing the work force in the street department through attrition with the intention of using SYETP participants to perform the street department work. 748 F.Supp. 1232. The district court enjoined defendants from placing SYETP participants in the street department. Mayor Parise timely filed notice of appeal. II. As a preliminary matter, we must establish that AFSCME has standing to bring this action. Although neither party has raised the issue of standing, “this court can and must address the issue on its own motion.” Jaimes v. Toledo Metro. Hous. Auth., 758 F.2d 1086, 1092 (6th Cir.1985). It is well-settled that “[e]ven in the absence of injury to itself, an association may have standing solely as a representative of its members.” International Union, UAW v. Brock, 477 U.S. 274, 281, 106 S.Ct. 2523, 2528, 91 L.Ed.2d 228 (1986). In Hunt v. Washington State Apple Advertising Comm’n, 432 U.S. 333, 343, 97 S.Ct. 2434, 2441, 53 L.Ed.2d 383 (1977), the Supreme Court stated a three-part test for determining whether an association has standing to bring an action on behalf of its members: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. We hold that the AFSCME satisfies this three-part test and has standing to bring this action on behalf of the city service department employees it represents. “The question whether a statute creates a cause of action, either expressly or by implication, is basically a matter of statutory construction_ [WJhat must ultimately be determined is whether Congress intended to create the private remedy asserted-” Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 15-16, 100 S.Ct. 242, 245, 62 L.Ed.2d 146 (1979). The issue is subject to de novo review by this court. See Cannon v. University of Chicago, 441 U.S. 677, 688-89, 99 S.Ct. 1946, 1953, 60 L.Ed.2d 560 (1979). In deciding whether a federal statute confers an implied private right of action, we consider four factors: 1) [whether] the plaintiff is of the class for whose especial benefit the statute was created; 2) whether there is any legislative intent, explicit or implicit, which either creates or denies a private remedy; 3) whether finding an implied cause of action is consistent with the underlying purposes of the legislative scheme; and 4) whether the cause of action is one that is traditionally left to state law such that it would be inappropriate to infer a cause of action based on only federal law. Kaiser v. United States Postal Service, 908 F.2d 47, 50 (6th Cir.1990) (citing Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2087, 45 L.Ed.2d 26 (1975), cert. denied, — U.S. -, 111 S.Ct. 673, 112 L.Ed.2d 665 (1991)). The central focus of the inquiry is congressional intent. Thompson v. Thompson, 484 U.S. 174, 179, 108 S.Ct. 513, 516, 98 L.Ed.2d 512 (1988); Lamb v. Phillip Morris, Inc., 915 F.2d 1024, 1028 (6th Cir.1990), cert. denied, — U.S.-, 111 S.Ct. 961, 112 L.Ed.2d 1048 (1991). The stated purpose of the JTPA is: To establish programs to prepare youth and unskilled adults for entry into the labor force and to afford job training to those economically disadvantaged individuals and other individuals facing serious barriers to employment, who are in special need of such training to obtain productive employment. 29 U.S.C. § 1501. The JTPA was enacted primarily to benefit youth, unskilled adults, and other individuals facing serious barriers to employment. Other potential beneficiaries of the JTPA include employees who have “been treated unfairly in light of the standards imposed under § 1553 or who [have] been discriminated against in violation of § 1577.” West Virginia v. Anchor Hocking Corp., 681 F.Supp. 1175, 1176 (N.D.W.Va.1987). Section 1553(a) requires that JTPA participants be provided benefits and working conditions granted to other employees doing the same type of work. Section 1553(b) protects regular employees from being displaced by JTPA participants. Two district courts have held that section 1553 provides a cause of action for employees who are treated unequally or unfairly in light of the standards imposed under the statute. See Anchor Hocking, 681 F.Supp. at 1176; Clinch v. Montana AFL-CIO, 633 F.Supp. 872, 876 (D.Mont.1986). However, to imply a private right of action “the language of the statute in question must do more than confer benefits, for ‘[t]he question is not simply who would benefit ..., but whether Congress intended to confer federal rights upon these beneficiaries.’ ” Osborn v. American Ass’n of Retired Persons, 660 F.2d 740, 743 (9th Cir.1981) (quoting California v. Sierra Club, 451 U.S. 287, 294, 101 S.Ct. 1775, 1779, 68 L.Ed.2d 101 (1981)). The second Cort factor requires examination of the legislative history for evidence that Congress intended that a private right of action be available under the statute. AFSCME has identified no legislative history regarding a private cause of action under the JTPA. The district court found that the legislative history of the JTPA does not address whether the statute creates a private right of action, and our independent review of the legislative history confirms the district court’s finding. Since the legislative history is silent regarding a private right of action, this court could “infer that Congress intended no such result.” Lamb, 915 F.2d at 1029. “Although congressional silence is not necessarily fatal to implication of a private right of action, ‘implying a private right of action on the basis of congressional silence is a hazardous enterprise at best.’ ” Osborn, 660 F.2d at 745 (quoting Touche Ross & Co. v. Redington, 442 U.S. 560, 571, 99 S.Ct. 2479, 2486, 61 L.Ed.2d 82 (1979)). In deciding whether Congress intended to create a private right of action under the JTPA, it is helpful to consider how courts addressed this issue with regard to CETA. In CETA Workers’ Organizing Committee v. City of New York, 617 F.2d 926, 931-34 (2d Cir.1980), the court applied the four Cort factors and held that there was no implied private right of action under CETA. The court concluded that “CETA’s provision of a comprehensive administrative procedure subject to judicial review appealed] to indicate congressional intent against a private right of action.” Id. at 933 n. 5. In Brock v. Pierce Co., 476 U.S. 253, 106 S.Ct. 1834, 90 L.Ed.2d 248 (1986), the Supreme Court observed that “the federal courts have uniformly held that the statutory complaint mechanism is the sole means of redress for a private party injured by a grant recipient’s violation of CETA.” A comparison of CETA and the JTPA suggests that the rationale for finding no implied private right of action under CETA is applicable to the JTPA. CETA provided a number of administrative remedies when violations of its provisions occurred. See 29 U.S.C. § 816 (1978). “At the local level, CETA require[d] that each prime sponsor establish grievance procedures through which ‘participants, subgrantees, contractors, and other interested persons’ in the program may have complaints expeditiously resolved.” Eastern Band of Cherokee Indians v. Donovan, 739 F.2d 153, 156 (4th Cir.1984). If a complainant failed to resolve the grievance at the local level, he could file a complaint at the federal level with the Secretary of Labor. The final decision of the Secretary was subject to judicial review in the United States Court of Appeals. 29 U.S.C. § 817(a) (1978). Like CETA, the JTPA has a comprehensive administrative procedure for addressing complaints and grievances. The JTPA requires “[ejach administrative entity, contractor, and grantee” to establish and maintain a grievance procedure for complaints and grievances by “participants, subgrantees, subcontractors, and other interested persons.” 29 U.S.C. § 1554(a). Section 1554(b) requires “[ejach recipient of financial assistance under this chapter which is an employer of participants ... to operate or establish and maintain a grievance procedure relating to the terms and conditions of employment.” The district court held that the City is not a recipient of JTPA funds within the meaning of the statute. However, the terms recipient, subreci-pient, and grantee are not defined in the JTPA. On the basis of the language in section 1554(b), we conclude that the City is a recipient. The City receives financial assistance under the JTPA in the form of federally subsidized participants who work in the City service departments. Had Congress intended to limit the term “financial assistance” to cash payments from the government, it could have so defined the term in the statute, as it did the term “public assistance.” See 29 U.S.C. § 1503(20). Moreover, the City is an “employer of participants” in that it controls, directs and supervises the participants who work in the City service departments. Upon exhaustion of a recipient’s grievance procedure, the Secretary of Labor is authorized to investigate allegations that a recipient is not complying with the requirements of the JTPA. See 29 U.S.C. § 1554(c). The JTPA also provides for judicial review in the United States Court of Appeals of “any final order by the Secretary under section 1576 ... with respect to a corrective action or sanction imposed under section 1574_” 29 U.S.C. § 1578(a)(1). These provisions suggest that there is no implied private right of action under the JTPA because Congress “has established an elaborate system of administrative review, which would appear intended to be exclusive.” Uniformed Firefighters Ass’n, 676 F.2d 20, 22 (2d Cir.), cert. denied, 459 U.S. 838, 103 S.Ct. 84, 74 L.Ed.2d 79 (1982). While provision of a comprehensive administrative procedure may indicate congressional intent against implying a private right of action, another factor to consider is “whether the administrative remedies provide relief for the specific claims of the plaintiff.” CETA Workers’, 617 F.2d at 933 n. 5. In this case, it does appear that the administrative procedures of the JTPA would provide relief for the claims of AFSCME. Section 1574(g) authorizes the Secretary of Labor to take action or order corrective measures upon determining that any recipient “has discharged or in any other manner discriminated against a participant or against any individual in connection with the administration of the program involved, ... or otherwise unlawfully denied to any individual a benefit to which that individual is entitled under the [JTPAj.... ” The conduct which AFSCME complains of, the denial of protection afforded local workers by section 1553(b), seems to be conduct which the Secretary is authorized to address under section 1574(g). The final order of the Secretary would then be subject to judicial review in the court of appeals. Accordingly, the administrative procedure of the JTPA “would appear intended to be exclusive.” CETA Workers’, 617 F.2d at 934. The third inquiry under Cort is whether implying a private right of action would be consistent with the underlying purposes of the legislative scheme. If one of the purposes of section 1553(b) is to protect local workers from being displaced by JTPA participants, then implying a private right of action could be consistent with the legislative scheme. Recognizing a private right of action would provide an enforcement mechanism to secure the protections afforded local workers by section 1553(b). However, as noted earlier, the grievance procedures mandated by the JTPA provide the means for local workers to secure the protections afforded by section 1553(b). “Although it is certainly possible that Congress would grant a private right of action concurrent with a system of agency oversight, it is difficult to understand, absent language to the contrary, what benefits would be gained from such dual review, particularly when judicial review of the Secretary’s action is explicitly vested in the appellate courts.” CETA Workers’, 617 F.2d at 934 n. 7. The final Cort factor to be considered is whether the cause of action is one traditionally left to state law such that it would be inappropriate to infer a cause of action based only on federal law. This factor is easily satisfied because the protection AFSCME seeks is based on a federal statute and has no independent basis in state law. Thus, implying a private right of action under the JTPA “would not intrude upon matters of state concern.” Lamb, 915 F.2d at 1030. Accordingly, having evaluated the four Cort factors with the view toward discerning congressional intent, we hold that there is no implied private right of action under section 1553(b)(3)(B) of the JTPA. III. For the reasons stated, the judgment of the district court is REVERSED, and this case is REMANDED to the district court with instructions to dissolve its injunction and dismiss this case. . The City of Niles and PIC have not appealed the judgment of the district court. consider the remaining two factors outlined in Cort." Kaiser, 908 F.2d at 52. Nevertheless, we shall discuss the remaining factors. . In its motion to transfer the case from the inactive docket to the active docket, AFSCME asserted that it sought judicial review of a final administrative decision. However, the district court would have no jurisdiction to review a final administrative decision under the JTPA because Congress has determined that judicial review is available only in the appellate courts. See 29 U.S.C. § 1578(a)(1). . If this court concludes that “neither the language, structure, nor the legislative history of the statute shows a congressional intent to fashion an implied private remedy, [it] need not . Having determined that there is neither an express nor an implied right of action under section 1553(b)(3)(B) of the JTPA, we need not reach the other issues raised in this appeal. Question: What is the total number of appellants in the case that fall into the category "sub-state governments, their agencies, and officials"? Answer with a number. Answer:
songer_numappel	1	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Your specific task is to determine the total number of appellants in the case. If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. CAIN v. BENSON. No. 10572. Circuit Court of Appeals, Sixth Circuit. Oct. 22, 1947. No appearances. Before HICKS, SIMONS and ALLEN, Circuit Judges. SIMONS, Circuit Judge. The petitioner was tried and convicted of an offense defined by § 531 of the Michigan Penal Code, Comp.Laws Supp.1940, § 17115-531, Stat.Ann. 28.799. This section creates the crime of larceny with intent in its commission to maim, injure or wound any persons, to compel them to disclose or surrender the means of opening a bank, safe, vault or other depository of valuables. The maximum penalty for its commission is imprisonment in a state prison for life. The information charged the petitioner with confining, maiming, injuring and wounding certain persons for the purpose of stealing from a state bank, substantially in the words of the statute. The journal entry of the verdict and sentence recites that the jury found the defendant guilty as charged. The court then sentenced him to be confined in the state prison for the rest of his natural life. The commitment addressed to the Sheriff, recites that the petitioner had been duly convicted of larceny. Under the Statutes of Michigan, 3 Compiled Laws 1915, § 15298, the penalty for larceny in its simpler form is imprisonment for not more than five years. The commitment, however, also recites that the verdict of conviction and the sentence imposed “more fully appears by a certified abstract from the minutes of said court of such conviction and sentence herewith delivered to you and accompanying this warrant.” Upon the sole ground that the commitment describes the offense charged and upon which the petitioner was tried and convicted as larceny, without describing it in the aggravated form of § 356, Comp.Laws Supp. 19-40, §.17115-356, the petitioner, having served more than five years in several Michigan prisons, filed his petition in the District Court for the Eastern District of Michigan for a writ of habeas corpus to be released from custody. The writ was dismissed and a petition for a certificate of probable cause in support of an appeal was denied. The petitioner subsequently filed in this ■court a petition designated variously as an appeal from the order of the district court, as an original petition for a certificate of probable cause, and as a motion to treat the proceedings as a petition for a writ of habeas corpus. He recites that his petition in the court below was dismissed for lack ■of jurisdiction, that his counsel failed to take a timely appeal and that he wishes the present petition, if not entertained as an .appeal, to be received as an original petition for writ of habeas corpus. The petition must be denied. We may not consider the several papers filed as .an appeal out of time because no certificate of probable cause has been obtained from the district judge. We may not consider it as an original petition for a writ of habeas corpus because in such proceedings this court sits only as a reviewing court and not as a court of original jurisdiction. Our reluctance to deny the petition •on technical statutory grounds is mitigated by the fact that it seems clearly to appear that the original petition was without merit and the court without jurisdiction to entertain it. The crime designated in the commitment is designated in the statute as larceny, albeit in an aggravated form, and it would seem to be clear from the history of the proceedings that the state court either considered that there was no error in the description of the crime in the commitment or considered that the error was purely clerical and cured by reference to the minutes of the proceedings and sentence in the trial court. Furthermore, it appears that the petitioner applied to the Circuit Court in Jackson County for a writ of habeas corpus in 1943, which was denied, that a petition to the Michigan Supreme Court was likewise denied, and the petitioner did not apply for relief in the United States Supreme Court from any order of the courts of Michigan. In this situation the law is clear that the district judge was without jurisdiction to entertain the petition under the authority of Mooney v. Holohan, 294 U.S. 103, 55 S.Ct .340, 79 L.Ed. 791, 98 A.L.R. 406; Ex parte Hawk, 321 U.S. 116, 64 S.Ct. 448, 88 L.Ed. 572; Dawsett v. Benson, 6 Cir., 156 F.2d 669, in the absence of exceptional circumstances discussed in the Hawk case, supra. Betts v. Brady, Warden, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595, relied upon by the petitioner, has no application. The petition is denied. Question: What is the total number of appellants in the case? Answer with a number. 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. METAL STAMPING CORPORATION et al. v. GENERAL MOTORS CORPORATION. Circuit Court of Appeals, Seventh Circuit. June 18, 1929. No. 4086. Arthur H. Boettcher, of Chicago, 111., for appellants. Thomas Francis Howe and Henry S. Rademaeher, both of Chicago, 111., for appellee. • Before ALSCHULER, EVANS, and PAGE, Circuit Judges. ALSCHULER, Circuit Judge. The appeal is from an order of the District Court awarding a preliminary injunction against appellants, restraining them from making, or marketing when so made, hub caps for automobiles upon which appear the names “Buiek,” “Oakland,” “Chevrolet,” or “Pontiac,” in unqualified imitation of appellee’s registered trade-marks for such names, as applied by appellee to the hub caps of automobiles which appellee manufactures and sells under such several names. As is well understood, the hub cap is screwed onto and covers the hub of the wheel, and has the function of protecting the bearings against dust and grit. Caps for the various makes of cars are of different size and design, and are evidently made to be ornamental as well as useful. As the caps of these makes protrude more or less prominently, they are quite subject to injury from contact, and in their use quite occasionally become unscrewed and lost, making replacement necessary. They are, in value, an insignificant part of the machine, those in question being listed to the user at from 20 to 85 cents apiece. It was the practice of appellants, one to manufacture and the other to distribute caps for the different makes of ears, in exact imitation of those wherewith the ears were equipped by their makers. An assortment of the various caps would then he placed upon a large display card, with name of car and price of caps printed on the card, and the cards thus equipped distributed among garages and other dealers in automobile parts, where the car owner seeking to replace a cap might select and purchase one like those on his car. The bill alleges that appellee is the manufacturer of these makes of ears, and the owner of the registered trade-marks which have long’ been used in connection with such ears; and that it manufactures and offers for sale the various replacement parts, including hub caps, in which it continuously does a large business. Appellants contend that the automobile owner himself has the lawful right to replace parts, and that therefore appellants have the right to make and to sell to the owners such parts for replacement. Generally speaking, this is not controverted. Indeed, appellee concedes to appellants the right to make and sell for replacement the hub caps in exact form of the originals, but denies the right to place upon the caps appellee’s trade-marks. It contends that the trade-mark indicates the origin of the product, and its employment by another is calculated to lead the ultimate buyer to.believe that the caps so marked were the output of appellee. This contention seems to be logical and just, and has the sanction of excellent authority. A leading ease is Moline Plow Co. v. Omaha Iron Store Co., 235 F. 519 (8 C. C. A.), where plowshares for replacement in Moline Company’s plows were stamped with a monogram closely simulating the registered trade-mark which the Moline Company placed upon its plowshares, whether sold on its plows or sold for replacement. Although it appeared that upon each of the alleged offending shares there was pasted a printed statement that they were made by a concern other than the Moline Company, the court denied the right to make and sell for replacement purposes plowshares with the closely simulated Moline trade-mark thereon. In another ease a maker of internal combustion engines, which were trade-marked with the name “Duro,” sought relief against a maker of spark plugs which were fitted for use in the Duro engine, from marking the spark plugs with the name “Duro.” Injunctive relief was awarded, and was sustained in Duro Co. v. Duro Co., 27 F.(2d) 339 (3 C. C. A.). But appellants contend that in the ease of the hub caps the trade-mark thereon is made to serve the purpose not alone of a trade-mark, but to help give an individualistic and pleasing appearance to the ear itself, which would be marred if an original hub cap should be replaced by another which was materially different in appearance from the rest, and that this would be the result if the replacement cap was not an exact imitation, in all respects, of the others. While we hardly think that this fact alone would be sufficient to justify appropriation of appellee’s trade-mark, we are of the belief that the suggestion is more argumentative than real. Certainly, when the ear is in motion, it would scarcely be perceptible whether, between hub caps otherwise alike, one had and another had not the name thereon; and since the different wheels of the car do not synchronize in their movement, it would only be by chance that thé lettering on any two'o'f the caps would be in the same position when the ear is at rest. It is easily conceivable that, other things being equal, many car owners may prefer replacement parts to be the product of the makers of their cars, in which case the maker’s trade-mark on the copied hub cap might induce the assumption that the hub cap was an output of the makers of the cars, and thus the buyer be deceived by this false indication of origin, and this wholly regardless of whether or not such was the intent of those who made and sold the hub cap. That the cards on which the hub caps were placed bore the printed statement that the maker was one of appellants is quite beside the question. Purchasers may not notice the printing on the cards, and may act wholly upon the faith of the representation of origin which the name on the cap is likely to convey. There is no potency in the suggestion, repeatedly put forth for appellants, that to sustain appellee’s contentions would give it a monopoly on supplying such replacement parts whereon it had placed its trade-mark, and would enable it to extort unconscionable prices from those who must have the parts. If the public insists upon having trademarked parts which are the output of the original maker of the ear, then in such sense the maker of the ear may have a monopoly. We see no reason why the maker may not stamp its mark on every nut and bolt which enters into the construction. This would not prevent others from making and supplying for replacement sueh nut or bolt or other parts just like those of the original, but it would not justify others in placing thereon any distinctive arbitrary mark which would tend to make the public believe the parts to be the output of the trade-mark owner. If unconscionable and extortionate practices of the ear maker in respect to the supplying of replacement parts may injuriously affect his status in a court of equity when he there seeks protection of his lawful trademarks, it is sufficient to say that the record here so far discloses no facts which tend to indicate that for any such reason the court should have withheld its injunctive order. From the present state of the record we are satisfied that it sufficiently appears that the placing of appellee’s trade-marks upon hub caps made and sold by appellants is a representation to the ultimate purchaser of their origin with appellee, and is to that extent an invasion of its rights; and we must conclude that in awarding a temporary injunction the District Court did not transgress its discretion. - The decree is affirmed. Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case? A. agriculture B. mining C. construction D. manufacturing E. transportation F. trade G. financial institution H. utilities I. other J. unclear Answer:
songer_civproc1	60	What follows is an opinion from a United States Court of Appeals. Your task is to identify the most frequently cited federal rule of civil procedure in the headnotes to this case. Answer "0" if no federal rules of civil procedure are cited. For ties, code the first rule cited. WESTERN STEEL ERECTION COMPANY, a corporation, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee, Morris L. Dunlap and Donald M. Fitzgerald, Applicants-Appellees. No. 247-69. United States Court of Appeals, Tenth Circuit. April 24, 1970. Rehearing Denied June 10, 1970. Phil E. Daugherty, Oklahoma City, Okl., for appellant. Howard K. Berry, Jr., of Berry & Berry, Oklahoma City, Okl., for appel-lees. Before LEWIS and SETH, Circuit Judges, and BRATTON, District Judge. LEWIS, Circuit Judge. This case presents a controversy between attorney and client and, after refinement of the issues, probes the availability of Fed.R.Civ.P. 60(b) as a procedural tool to lodge ancillary jurisdiction in the trial court to determine attorneys’ fees after dismissal of the main case by stipulation and with prejudice. The court below granted the motion of attorneys Dunlap and Fitzgerald (Dunlap), vacated the order of dismissal, took testimony on the question of the fee issue and ultimately entered judgment against Western Steel Erection Company (Western) for $27,349.98 plus interest. The principal case was then again dismissed. By its appeal, Western has contested both the ancillary proceedings leading to the judgment below and the judgment itself. Because we conclude that the application to vacate was erroneously granted, we confine our review to the procedural background of the case. The original action was a suit by Western against the United States for recovery of income taxes paid under protest. Late in 1964, Dunlap was employed by Western to replace another attorney and to continue negotiations with the Internal Revenue Service concerning the income tax claim. The now vigorously disputed contentions of the parties as to the terms of this employment need not be set out in their unpleasant detail. It is sufficient to state that Dunlap filed suit on behalf of Western on June 25, 1965; that Western gave Dunlap a general power of attorney effective July 31, 1967; that sometime during September, 1968, without consulting with Western, Dunlap reduced an offer of settlement and agreed to accept the sum of $224,630.23 from the United States in full satisfaction of the refund claim. A check in that amount was delivered to Dunlap by the United States, a stipulation for dismissal taken, and on November 26, 1968, pursuant to the stipulation and the ex parte motion of the United States, the case was dismissed. Western was not informed of the existence of the stipulation made on its behalf. On December 13, 1968, the present controversy was triggered when Dunlap, purportedly acting under the power of attorney from Western, filed a motion to vacate the judgment of dismissal because of the existence of a dispute concerning attorneys’ fees and made demand for a determinative hearing of this issue. At a hearing held the same day to lay the jurisdictional claims before the court, Western asserted that the power of attorney running to Dunlap had been revoked by letter of December 10, 1968. Over Western’s objection the court orally vacated the order of dismissal and explained as a basis for the action that the dispute vitiated the dismissal which had been premised on. the parties’ agreement to the amount of settlement. Hearing on the merits was held January 8, 1969. Western specially appeared and objected to the court’s assumption of jurisdiction; Western also had filed a cross-complaint alleging certain employment terms and full payment under those terms and seeking to recover the settlement check. A written demand for jury trial was timely filed. The court overruled Western’s motions objecting to jurisdiction and requesting a jury trial and dismissed its cross-complaint. Proceeding to the merits, the court determined Dunlap entitled to the judgment earlier indicated, entered such judgment, and then granted the renewed motion of the United States to dismiss the original case. On appeal the parties have agreed that the vacation of dismissal and assumption of jurisdiction in the ancillary proceedings can be deemed grounded on rule 60(b), providing for relief from a final judgment due to “mistake,” and on the court’s inherent power to correct faulty orders. However, our inquiry does not take us into a review of the court’s discretionary exercise of these corrective tools. Our concern is rather with the initial requirement on standing to apply for relief from final judgment, and we hold that rule 60(b) by its own terms mandatorily barred the application to vacate. We also hold that reliance on a court’s inherent powers to support vacation of judgment cannot relax the standing requirement where proceedings under rule 60(b) would be proper. Rule 60(b) states: “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 * * (emphasis added). This court has held that the term “legal representative” embraces an heir at law who stood in the same position as the deceased judgment debt- or in respect to real property transferred to the heir. Ingerton v. First National Bank & Trust Co., 10 Cir., 291 F.2d 662, 664. The Fifth Circuit has similarly allowed a trustee in bankruptcy standing as a “legal representative” under rule 60(b) because of the trustee’s power and status in respect to assets of the estate under the Bankruptcy Act. In re Casco Chemical Co., 335 F.2d 645, 651. The analysis is clear: A “legal representative” under the rule is one who by operation of law is tantamount to a party in relationship to the matter involved in the principal action. Here, although Dunlap could assume that posture in respect to the tax refund case, the firm cannot fairly be clothed with such standing regarding its private controversy. If the threshold bar were not restricted, rule 60(b) could be opened to the broadest claims of ancillary jurisdiction and thereby thwart the finality of principal judgments and established procedures to correct fundamental legal errors. More importantly, any relationship between the cause of action in chief and that brought into the court’s jurisdiction through its ancillary jurisdiction would become irreparably attenuated. See Bounougias v. Peters, 7 Cir., 369 F.2d 247, 249, cert. denied, 386 U.S. 983, 87 S.Ct. 1288, 18 L.Ed.2d 232. We therefore hold that an attorney does not have standing to move under rule 60(b) as a “legal representative.” Mobay Chemical Co. v. Hudson Foam Plastics Corp., 277 F.Supp. 413, 416 (S.D.N.Y.), citing Ingerton v. First National Bank & Trust Co., supra. Responding to Western’s claim of a standing defect under rule 60(b), ap-pellees have argued that Western, a party in the principal action, asked the court to overturn the dismissal. We note that in its final order entered below, the court made no finding on Dunlap’s standing to file the application to vacate. The court did conclude that the power of attorney running to the firm subsisted prior to filing the stipulation of dismissal and during the ancillary proceedings. However, this conclusion obviously went only to Dunlap’s authority to effect a binding settlement on behalf of Western. Our examination of the transcripts of the December 13, 1968 hearing on whether the court had jurisdiction to hear the firm’s application for determination of attorneys’ fees does disclose some doubt that Western accepted the amended settlement offer, allegedly negotiated without its approval. But the record nonetheless establishes that Western raised its dissatisfaction with the amount of settlement and mode of effecting it only in response to the applications for vacation of dismissal and hearing and as the basis for lodging a cross-complaint against Dunlap. Moreover, Western’s then-counsel conceded that the company regarded itself bound by the settlement vis-a-vis the United States. The interplay between Western’s theory of relief by cross-complaint and the court’s ultimate assumption of jurisdiction is patent: The court indicated from the bench that the disagreement on authority to settle for Western determined the validity of the order dismissing the tax refund suit. Even so, Western did preface its objection to the settlement with the statement that the company had grounds to contest a claim for additional attorneys’ fees and never recanted from its continual objection to the court’s jurisdiction in the ancillary proceedings. In these circumstances the impetus to vacate can clearly be attributed to Dunlap. The case at bar presents a controversy that is an independent side effect of the main case and as such must be independently presented to a proper forum. The judgment is reversed. . Fed.R.Civ.P. 52(b), 59, provide that a motion to alter or amend a judgment must be made no later than ten days after entry of the judgment. See Note, “Federal Rule 60(b): Finality of Civil Judgments v. Self-Correction by District Court of Judicial Error of Law,” 43 Notre Dame L.Rev. 98 (1968), for discussion of the thesis that rule 60(b)- should not be used to correct fundamental judicial error of law lest appeal and the time limits of rules 52(b) and 59 be obviated. . Dunlap & Fitzgerald have not asserted standing as a “party” within the rule. We note that the District of Columbia Circuit has denied attorneys standing as parties under the rule 60(b) requirement. Ratner v. Bakery and Confectionery Workers Int'l Union of America, 129 U.S.App.D.C. 305, 394 F.2d 780. Two attorneys had unsuccessfully addressed an application for determination of attorneys’ fees to the lower court. Apparently, independent counsel concluded the court appearances leading to dismissal, see 394 F.2d at 781 n. 1, and the appellate court, in affirming denial of a motion to vacate or alternately for relief under rule 60(b), pointed out that the complaining attorneys did not claim notice of the settlement as a party or counsel for a party. However, the court stressed that the nature of the relief sought controlled in that no interest in attorneys’ fees had been urged when dismissal was entered and denied standing as parties on this ground. . Although appellees’ authority is raised to support assumption of ancillary jurisdiction to determine attorneys’ fees, rather than standing under rule 60(b), the jurisdictional argument in no manner avoids the infirmity in standing. In United States v. Jacobs, 4 Cir., 298 F.2d 469, 472-473, attorneys were allowed to intervene after each of the original parties to the action had filed motions to modify a judgment which had been affirmed on appeal. In upholding the lower court's ruling, the Fourth Circuit stated : We need not hold that if the parties ask for more or less than their due, they thereby circumscribe the power of the court to enter an order required by the interests of justice. At least, when the matter has been brought before the court by proper motions by the parties and the judgment was opened up, we think the power of the court to consider the rights of the intervenor, and, thereafter, to frame its own order, was as plenary as it was before the final judgment was originally entered. 298 F.2d at 473 (emphasis added). Appellees have also cited State of Iowa v. Union Asphalt & Roadoils, Inc., 281 F.Supp. 391, 398 (S.D.Iowa), aff’d 8 Cir., 409 F.2d 1239, wherein attorneys applied under rule 60(b) to amend an order allowing their withdrawal as the state’s attorneys to include determination of attorneys’ fees. In granting the application, the court relied on both rule 60 and its inherent power to correct faulty orders and did not address the standing question. Even though the court also supported its decision with authority that a court may condition its order of substitution upon an award of attorneys’ fees, a nexus readily not apparent in the instant case, we are not persuaded to abridge standing requirements and do not read the case as so holding since the principal action was still pending at the time the motion to amend was filed, whether or not the substitution order was then final. Moreover, we note that the Eighth Circuit specifically affirmed solely on courts’ authority to so condition an order of substitution. 409 F.2d at 1243-1244. Proceedings initiated by motion under rule 60 were not involved in First Iowa Hydro Elec. Co-op v. Iowa-Illinois Gas & Elec. Co., 8 Cir., 245 F.2d 613, 629, cert. denied, 355 U.S. 871, 78 S.Ct. 122, 2 L.Ed.2d 76. No final judgment had been entered in American Federation of Tobacco Growers v. Allen, 4 Cir., 186 F.2d 590, 592, and City of Hankinson v. Otter Tail Power Co., 294 F. Supp. 249 (D.N.D.), when ancillary proceedings were brought other than by rule 60 motion. In Andrews v. Central Sur. Ins. Co., 295 F.Supp. 1223, 1228-29 (D.S.C.), the court predicated its assumption of ancillary jurisdiction to award attorneys’ fees on its order in the principal action expressly reserving control in the court over funds required to be paid into its registry. Here, appellee Dunlap held the government’s settlement check which never reentered the court’s registry; nor did the judgment of dismissal in the principal suit reflect more than that the full amount of the settlement had been paid Western. Rather than distinguishing the case on the situs of funds at the time of application, we decline to endorse the rationale of Andrews, which deals with what can fairly be termed a rule 60 proceeding, because of the unwarranted broadening of ancillary jurisdiction it forbodes by ignoring established standing requirements under the rule and subject matter requirements explained in Bounou-gias v. Peters, supra. Question: What is the most frequently cited federal rule of civil procedure in the headnotes to this case? Answer with a number. Answer:
songer_trialpro	B	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the 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". J. T. MAJORS & SON, INC., Appellant, v. LIPPERT BROS., INC., Appellee. LIPPERT BROS., INC., Cross-Appellant, v. J. T. MAJORS & SON, INC., Cross-Appellee. Nos. 5957, 5958. United States Court of Appeals Tenth Circuit. Dec. 30, 1958. Leonard O. Thomas, Kansas City, Kan., and Maurice P. O’Keefe, Atchi-son, Kan. (Stanley, Schroeder, Weeks, Thomas & Lysaught, Kansas City, Kan., and O’Keefe, Root, McKelvy & O’Keefe, Atchison, Kan., on the brief), for appellant and cross-appellee. Leon Shipp, Oklahoma City, Okl. (Robert S. Johnson, Topeka, Kan., on the brief), for appellee and cross-appellant. Before BRATTON, Chief Judge, and PICKETT and BREITENSTEIN, Circuit Judges. BREITENSTEIN, Circuit Judge. Appellee-defendant, Lippert Bros., Inc., had the prime contract for the construction of an abbey at Atchison, Kansas, and made a subcontract with appellant-plaintiff, J. T. Majors & Sons, Inc., for the masonry work. Majors completed performance and brought suit alleging nonpayment for certain work done. Jurisdiction is based on diversity of citizenship. The first claim relates to the cleaning of interior masonry and the second claim to the cleaning of exterior masonry. As to each of these claims the trial court directed a verdict in favor of defendant Lippert. The third claim covering the alteration of anchor holes was submitted to the jury which allowed the plaintiff a recovery of $4,322.73. As to this claim Lippert through a third-party complaint asserted that the liability, if any, was that of Forburger Company, Inc. After verdict, the court on its own motion reduced the recovery to $1,688.80 and entered judgment for that amount. The issues under the third-party complaint were settled by agreement. The fourth claim involved the pointing of terrazzo and the jury allowed recovery. Here also there was a third-party complaint, this time alleging that the liability was that of Advance Terrazzo Co., Inc., and a settlement was made by agreement. Majors has appealed from the actions of the trial court in directing a verdict as to claims one and two and in reducing the jury verdict on claim three. Lip-pert filed a cross-appeal contending that there should be no recovery on the third claim but subsequently moved to dismiss that cross-appeal. The first two claims, which present the question of whether Majors is entitled to be paid for cleaning masonry, may be considered together. The subcontract provided that Majors, the subcontractor, was “to furnish labor to install masonry work as follows.” The itemization which follows contains 12 items with unit prices covering various types of brick, stone, tile, glass blocks, and granite. No reference is made to cleaning. The subcontract contains the common provision requiring extra work or changes to be agreed to in writing. The subcontractor agreed to be bound by all terms and conditions of the general contract. The specifications made a part of the prime contract had two provisions relating to cleaning. Before the execution of the subcontract the prime contractor had laid about 18,000 brick and between 4,000 and 4,500 feet of split-faced stone. The subcontractor cleaned this brick and stone as well as all masonry laid by it. The basis of its first two claims is that the subcontract required Majors to “install” but not to “clean,” and that the cleaning was done by it under an oral agreement with the prime contractor’s construction foreman. Lippert contends that the term “install” includes cleaning, that the construction superintendent had no authority to make any oral contract with Majors, and that the provisions of the subcontract requiring agreements for extra work or changes to be in writing precludes any such oral agreement. Majors, asserting that the subcontract had a latent ambiguity, offered evidence of precontract conversations tending to show an intent not to include cleaning. The court held that the contract was not ambiguous and rejected the offer. Majors also offered testimony as to the technical meaning of the term “install.” This was received together with rebutting evidence with the result that there was a confusing conflict from which the conclusion can be reasonably drawn that when masonry work is covered by a lump sum contract cleaning is included but when it is a unit contract cleaning is not included unless specified. Here we have a subcontract itemizing the work and providing for compensation on a unit basis. The reference to the general contract is unimportant. The obligation on the prime contractor to clean does not automatically fall on the subcontractor. It is significant that Majors cleaned the brick and cut stone that had been laid by the prime contractor before the execution of the subcontract. No possible interpretation of the itemizations contained in the subcontract required it to do so. The testimony of an official for Lippert that payment for such work was made under “negotiated” quantities is far from convincing. In the circumstances of this case it cannot be said with certainty what the parties meant by the use of the word “install.” The subcontract is ambiguous as the intention of the parties cannot be ascertained therefrom. In such a situation “the background against which the contract was executed and the circumstances attending its execution should be taken into consideration as an aid to the ascertainment of such intent.” The trial court erred in rejecting the evidence as to the preliminary negotiations between the parties. While the interpretation of contractual language is a question of law, in a situation such as this where meaning depends on extrinsic evidence, there may result a material conflict or the possibility of more than one reasonable inference, either of which could present a question of fact rather than law. We are unable to say whether on retrial such a factual issue will be presented. The trial court directed a verdict as to claims one and two on the ground that there was no showing of authority in Lippert’s construction superintendent to contract with Majors for the cleaning. The record shows that such superintendent, who had no superior officer in Kansas, hired, fired, directed, and paid the workers on the job. He ordered and. paid for certain supplies but his check-writing authority was limited. A vice-president of Lippert testified that the superintendent had no authority to bind Lippert either orally or in writing. The superintendent admittedly kept a record of the time spent by Majors in the cleaning operations but did not keep such records in regard to other work done by Majors. An offer of Majors to prove its oral contract with the superintendent for the cleaning was rejected on the ground that there was no proof of his authority to bind Lippert. An official of Majors testified that the superintendent was “in full charge” and was “the man we had to go to for everything.” Lippert knew that the cleaning work was being done as its vice-president testified that the cleaning of the brick and stone laid before Majors went on the job was paid for by “negotiated” quantities. Lippert did not notify Majors of any limitation on the superintendent’s authority. Lippert has acknowledged liability under the superintendent’s oral agreement for the alteration of the anchor holes. Certainly the evidence is sufficient to justify the reasonable inference that the superintendent had authority to bind his principal. The question of authority of an agent is ordinarily one of fact. Lippert insists that even assuming such authority the provisions of the subcontract precluding oral agreements for extra work or changes has the controlling effect of preventing recovery. Such a provision is valid but in the absence of the applicability of any statute of frauds it may be waived, modified or rescinded by a subsequent oral contract. While an intent to waive, modify or rescind must, be shown, that may be inferred from the actions of the parties. The conduct of Lippert was such as to permit the reasonable inference that it intended to waive or modify the contract provision on which it now relies. The question of intent is usually one of fact. It is settled law in Kansas that a principal cannot receive and retain the benefits of a transaction, and at the same time deny the authority of the agent to enter into that transaction. In the instant case Lippert knowingly permitted Majors to clean the masonry and accepted the benefits arising therefrom. If the subcontract did not require Majors to do that work, then the questions of waiver of the pertinent provisions of the written contract, apparent authority of the superintendent, existence and terms of an oral contract for cleaning, estoppel, ratification, and unjust enrichment may be pertinent. We can resolve none of them on the record now before us. The third claim related to the alteration of the anchor holes. The evidence was that in the construction of a stone wall of the type involved each stone must be fastened in the wall by means of metal rods. These rods are of two types known as “anchors” and “cramps.” The stones made available to Majors had holes for these rods but they were too small and were improperly shaped for the rods which were furnished. Majors was required to alter the holes so that the rods would fit. The difference between the parties is in the number of holes that had to be altered. The president of Majors testified that an average of three holes had to be altered on each of over 3,000 pieces of stone. The work was valued on a time basis plus certain overhead charges. Majors submitted an itemized bill to Lippert in the amount of $4,432.78. The jury returned a verdict on this claim in favor of Majors for $4,322.73. After the return of the verdict Lippert moved orally for judgment notwithstanding the verdict. There ensued a colloquy among ■court and counsel which added nothing to the clarification of any issue. The court announced an intent to reduce the verdict. Majors’ counsel then objected and asked time either to remit or to move for a new trial. This was denied. The court ordered that the verdict was reduced to $1,688.80. No ruling was made on Lippert’s oral motion. Thereafter each party moved for a new trial and each motion was denied. Lippert filed a cross-appeal on the recovery on this claim and has now moved to dismiss that cross-appeal. This eliminates any necessity for consideration of its motion for judgment notwithstanding the verdict. The trial court apparently was impressed by the facts that the third claim of the complaint referred only to anchors and the defense testimony was that 3,800 anchors were supplied for the job. The reduction was on the basis that recovery had to be limited to the amount which would compensate for the alteration of one hole per anchor. The third claim sought unliquidated damages for breach of contract. It is the function of the jury, and not the prerogative of the court, to determine the amount of damage and the determination of the jury, if based on substantial evidence or reasonable inference therefrom, must be upheld in the absence of an error of law or a showing of passion or prejudice. The third claim alleged oral employment for work in “cutting and straightening anchor holes on stone.” Lippert contends that this limits recovery to work done on anchor holes. The validity of such argument depends on the difference between a cramp and an anchor. Each is a device to hold a block of stone in place. A witness for Majors stated that a cramp “is just an anchor.” The stone foreman for Majors testified as to the necessity for alteration of the holes for both cramps and anchors. The record shows that about 2,600 cramps and 3,800 anchors were used. There is nothing to indicate that Lippert was misled by the reference to anchors in the complaint. The query is not how many anchors or cramps were used but how many holes had to be altered. As to this the evidence for Majors was that there were about 3,000 stones on which an average of three holes each had to be altered. The peremptory action of the trial court in reducing the verdict was improper. There was no claim of error of law or of passion and prejudice. If the court felt that the verdict was excessive the proper procedure was to afford the plaintiff an opportunity to make a remittitur if it desired and if it did not choose to do so, to grant a new trial. But the circumstances in this case did not justify even that action, There was substantial evidence to sustain the verdict and no errors of law occurred in the submission of the issue to the jury. The verdict must be reinstated, and judgment entered in accordance therewith. Forburger Company, Inc., a third-party defendant below, has filed a motion to dismiss the appeal as to it. The motion is not in order and cannot be considered as neither the appeal nor the cross-appeal designate Forburger as a party. The motion of Lippert to dismiss the cross-appeal is granted. As to the first and second claims set out in the complaint the judgment is reversed for further proceedings in accordance with the views stated herein. The judgment on the third claim is reversed with directions to enter judgment in conformity with the verdict of the jury. The judgment on the fourth claim is not questioned and is accordingly affirmed. Costs will be assessed against the appellee. . Hereinafter referred to as Lippert or as prime contractor. . ■ Hereinafter referred to as Majors or as subcontractor. . The provision is: “No extra work or changes under this contract will be recognized or paid for unless agreed to in writing by the Contractor [Lippert] before the work is done or the changes made. No oral agreements will be made by either party.” . As to stone work it provided: “The face of all stone work shall be cleaned upon completion, an approved cleaning compound being used. Acid shall not be used on cut stone work.” The requirement as to brick work was: “All brick work shall be thoroughly cleaned and pointed as directed by the Architect.” . Moore v. Jones, 10 Cir., 215 F.2d 719, 721, and Kansas authorities there cited. . United States v. Nickel, 10 Cir., 243 F.2d 924, 925. . Hawkins v. Frick-Reid Supply Corporation, 5 Cir., 154 F.2d 88, 89; 17 C.J.S. Contracts, § 617, p. 1284. Cf. Brown & Co. v. McGran, 14 Pet. 479, 493, 39 U.S. 479, 493, 10 L.Ed. 550; S. S. Kresge Co. v. Sears, 1 Cir., 87 F.2d 135, 140, 110 A.L.R. 583, certiorari denied 300 U.S. 670, 57 S.Ct. 512, 81 L.Ed. 876; United States v. Northern Pac. Ry. Co., 8 Cir., 188 F.2d 277, 280. . While Lippert may recognize liability under the one oral contract and deny liability in another instance on the ground of lack of authority, the acceptance of liability in one instance certainly affects reasonable belief in authority in another instance. . American Nat. Bank of Sapulpa, Okl. v. Bartlett, 10 Cir., 40 F.2d 21, 22. . See annotation in 66 A.L.R. 649, 662. Kansas follows this rule. See Bailey v. Norton, 178 Kan. 104, 283 P.2d 400, 403-405, citing 17 C.J.S. Contracts § 371(3), p. 850, and 9 Am.Jur. Building and Construction Contracts § 23, pp. 17-18. . Welton v. 40 East Oak St. Bldg. Corporation, 7 Cir., 70 F.2d 377, 378, certiorari denied Chicago Title & Trust Co. v. Welton, 293 U.S. 590, 55 S.Ct. 105, 79 L.Ed. 685; 88 C.J.S. Trial § 219, p. 502. . Bank of Lakin v. National Bank of Commerce of Kansas City, 57 Kan. 183, 45 P. 587. Sea also Adrian v. Elmer, 178 Kan. 242. 284 P.2d 599, 603; Sinclair Kefming Co. v. Vaughn, 135 Kan. 82, 9 P.2d 995, 996; Sheldon Petroleum Co. v. Empire Gas & Fuel Co., 112 Kan. 73, 209 P. 826, 830; Isaacs v. Jackson Motor Co., 108 Kan. 17, 193 P. 1081, 1082. . Lippert attempts to make much of an error in this bill. Such error was in a simple and obvious arithmetical computation. No one was misled or prejudiced by it. . There were disputes as to both the number of altered holes and as to the cost of alteration per hole. . U.S.Const. Amend. 7; Walker v. New Mexico and Southern Pacific Railroad Company, 165 U.S. 593, 596, 17 S.Ct. 421, 41 L.Ed. 837; Slocum v. New York Life Insurance Co., 228 U.S. 364, 385-386, 33 S.Ct. 523, 57 L.Ed. 879; Dimick v. Schiedt, 293 U.S. 474, 486, 55 S.Ct. 296, 79 L.Ed. 603. . Webster’s New International Dictionary, 2d Ed., defines the word anchor as used in building thus: “A device, as a metal tie, for giving stability to one part of a structure by making it fast to another, as a beam to a wall, one wall to another, or (in this case specif, called cramp or cramp iron) a stone facing, as an ashlar, to rough masonry behind it.” The same dictionary defines cramp as: “A device, usually of iron bent at the ends or of dovetail form, used to hold together blocks of stone, timbers, etc.” . Kennon v. Gilmer, 131 U.S. 22, 29, 9 S.Ct. 696, 33 L.Ed. 110; Bucher v. Krause, 7 Cir., 200 F.2d 570, 588. Cf. Neese v. Southern Railway Co., 350 U.S. 77, 76 S.Ct. 131, 100 L.Ed. 60. . Readnour v. Commercial Standard Insurance Company, 10 Cir., 253 F.2d 907, 908. . 28 U.S.C. § 2106; Marshall’s U. S. Auto Supply v. Cashman, 10 Cir., 111 F.2d 140, 141; Standard Oil Company v. Brown, 5 Cir., 238 F.2d 54, 56; Pettingill v. Fuller, 2 Cir., 107 F.2d 933, 936; Finn v. American Fire & Casualty Co., 5 Cir., 207 F.2d 113, 115; Moore’s Federal Practice 2d Ed. Vol. 6, § 59.15 (3), p. 3904. 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_r_bus	1	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. HOBBS & COMPANY, INC. v. AMERICAN INVESTORS MANAGEMENT, INC. and Harry M. Weenig, Appellants. No. 77-1445. United States Court of Appeals, Third Circuit. Argued Jan. 9, 1978. Decided May 4, 1978. Israel Packel, John C. McNamara, Jr., Fox, Rothschild, O’Brien & Frankel, Philadelphia, Pa., for appellants. William T. Hangley, Stephen M. Foxman, Goodman & Ewing, Philadelphia, Pa., for appellee. Before ADAMS, BIGGS and WEIS, Circuit Judges. OPINION OF THE COURT BIGGS, Circuit Judge. This is an appeal, pursuant to 28 U.S.C. § 1291, from a final judgment of the United States District Court for the Eastern District of Pennsylvania, dated January 24, 1977. On December 31, 1974, appellee Hobbs & Company, Inc. (“Hobbs”) instituted suit against seventeen defendants, including appellants herein, American Investors Management, Inc. (“AIM”) and Harry M. Weenig (“Weenig”). The action arose out of Hobbs’ 1973 investment in SME Florida Partners Ltd. (“SME”), a limited partnership organized to develop condominiums in Florida and to provide tax benefits to the investing limited partners. AIM was the general partner in SME, and Weenig was a shareholder, director, and officer of AIM. Hobbs’ complaint, charging violations of federal and state securities laws as well as common law fraud, alleged that the defendants, including AIM and Weenig, used fraudulent and deceptive means to induce Hobbs to purchase a limited partnership interest in SME for $150,000, and that as a result Hobbs was entitled to recover compensatory damages in excess of $400,000 as well as punitive damages. After extensive pre-trial proceedings, a Settlement Agreement was entered into by the parties on January 6,1976. This Agreement was approved by the district court and Hobbs’ action was dismissed with prejudice. In addition to providing for cash payments to Hobbs, the Settlement Agreement contained, inter alia, the following pertinent provisions. (1) SME had invested in two development projects, “Jacaranda” and “Tamarac,” but had substantially defaulted on the principal, interest, and tax payments on both properties. Under Paragraph 6 of the Settlement Agreement, AIM, but not Weenig, agreed to “make all payments including payments of mortgage principal, interest and taxes necessary to preserve intact and keep free from any cloud on title or liability the ownership interest of SME . in . Jacaranda and Tamarac, through January 1, 1978.” (2) The limited partnership interests had been marketed as a tax shelter. Paragraph 7 of the Agreement stated that AIM and Weenig represented and guaranteed that certain tax consequences were available to the limited partnership for the years ended December 31, 1973, 1974, and 1975, and promised to prepare and file tax returns and reports necessary to secure such benefits. Upon failure of these undertakings, AIM and Weenig agreed to pay Hobbs such amount of money as would put it in the same position which would have resulted had the promised tax consequences been made available. (3) With respect to remedies in the event of default by any settling defendant, Paragraph 10 of the Agreement provided that “[u]pon the default, failure or delinquency of any defendant in making any payment of any money, in delivering or satisfying any note or in the performance of any undertaking to which such defaulting defendant has agreed, then the dismissal compromise and settlement of plaintiff’s claims against such defaulting defendant provided for in this Stipulation and Agreement shall be void and of no effect solely as to such defaulting defendant. . . .” Paragraph 10 further provided that “this Court shall retain jurisdiction of this action solely for the purpose of enforcing the undertakings contained in this Stipulation and Agreement. On May 17, 1976, Hobbs filed a motion with the district court to enforce against AIM its obligations with respect to Jacaranda, as set forth in Paragraph 6 of the Settlement Agreement, to hold AIM and Weenig in civil contempt on account of their willful breach of the Agreement, and to order AIM and Weenig to pay Hobbs’ attorneys’ fees. Hobbs contended, inter alia, that AIM had failed to make the Jacaranda payments when due and did not intend to make future payments, and that Jacaranda’s mortgagee, Gulfstream Land & Development Corp. (“Gulfstream”), had declared the mortgage in default and initiated foreclosure proceedings. According to Hobbs, the court convened a telephonic hearing by conference call on May 17, 1976, which was participated in by the court, counsel for Hobbs, Weenig, AIM (by Weenig), and various other counsel. On May 19, 1976, the court ordered AIM to pay instanter all delinquent and current installments of mortgage principal, interest, and taxes on Jacaranda and to thereafter make all such payments through January 1, 1978; enjoined AIM and Weenig, among others, from doing any act inconsistent with or interfering with the performance of the Settlement Agreement and Order; and ordered AIM and Weenig to pay Hobbs’ costs and legal expenses arising out of their refusal to perform their obligations under the Settlement Agreement and Order in an amount to be determined by the court. The court declined to find AIM or Weenig in civil contempt. In June 1976, Hobbs learned that AIM was no longer able to make the required payments on Jacaranda. In a letter to Gulfstream dated June 16, 1976, Weenig attributed AIM’s financial difficulties to the cost of legal work in connection with litigation other than with Hobbs to which AIM and Weenig were parties and to internal expenditures in the management of AIM. On June 28, 1976, Hobbs filed another motion for enforcement and for a contempt adjudication against AIM and Weenig, alleging that Weenig had violated the court’s May 19 injunction and had caused AIM to violate the Settlement Agreement and the court’s prior orders by dispersing its funds to matters other than the Jacaranda obligations. Hobbs prayed that Weenig be ordered personally to make the delinquent and current payments on Jacaranda to the extent that they were not timely made by AIM, and that AIM and Weenig be held in civil contempt. AIM and Weenig jointly responded with briefs, affidavits, and exhibits attempting to rebut Hobbs’ contention that Weenig had directed AIM’s available assets to matters other than the performance of the Settlement Agreement. According to Hobbs, a conference was held in chambers on August 9,1976, with counsel for Hobbs and counsel for AIM and Weenig present, and on September 2, 1976, evidence from both sides, including Weenig’s live testimony, was taken at a hearing on Hobbs’ motion in open court. This hearing was not transcribed. See n. 16 infra. At the hearing, avers Hobbs, the court made certain settlement recommendations and Hobbs’ motion was held in abeyance pending the parties’ attempts to work out an amicable resolution of the situation. Apparehtly, in light of the pending foreclosure proceedings on Jacaranda, the court indicated its intention to act on Hobbs’ motion if the matter was not resolved by September 16, 1976. Although the matter was not settled in accordance with the foregoing, the court took no action. On November 29, 1976, counsel for AIM and Weenig informed the court that Weenig had resigned as President and director of AIM, that AIM was without officers and directors, and that its remaining assets and affairs were being managed by Weenig Enterprises in Utah. In a word, AIM was defunct. On December 13, 1976, the district court issued an opinion and order scheduling an additional hearing on December 20, 1976. The opinion noted that Hobbs’ motions remained unresolved and that the hearing would be held to resolve all issues which had arisen as a result of the Settlement Agreement. Hobbs alleges that at the hearing it submitted that the Jacaranda payments had not been made, that the tax consequences and filings guaranteed by AIM and Weenig in Paragraph 7 of the Agreement had not come about, and that Weenig had prevented AIM from making the Jacaranda payments and had allowed AIM to use its assets to such an extent that it became incapable of making the payments on the property. On January 5, 1977, Hobbs’ counsel, apparently at the court’s suggestion, submitted a motion to reduce the Settlement Agreement to judgment against AIM and Weenig and for reimbursement of its counsel fees and expenses. The motion prayed for judgment against AIM and Weenig, jointly and severally, in the amount of $131,856.37, plus interest, as damages for the nonpayment by AIM of the Jacaranda obligations. The alleged basis of Hobbs’ damage claim was that its investment or contribution of $150,-000 to SME’s initial capitalization entitled it to a “9.375% equity interest in all assets of SME,” and thus, the danger of foreclosure of Jacaranda entitled Hobbs to damages of 9.375% of the price which SME had agreed to pay on an installment basis for that realty ($1,406,468), or $131,856.37. In addition, the motion asserted a violation by AIM and Weenig of Paragraph 7 of the Settlement Agreement (the tax consequence provision) and requested counsel fees and expenses in the amount of $4,836. In response to Hobbs’ motion, AIM and Weenig asserted their good faith efforts to preserve Jacaranda from foreclosure, denied the damage claim (specifically stating that Hobbs, “by virtue of his investment in SME, acquired no equitable or legal interest in the partnership realty and, consequently, does not have an interest in Jacaranda, that is ‘not less than $131,856.37’ as is alleged”), and denied Hobbs’ right to counsel fees and expenses as inappropriate as a matter of law. On January 24, 1977, the court, without any further hearing or proceeding and “upon consideration of plaintiff’s Motion and in consideration of the testimony and other evidence presented by the parties at the various hearings in this matter and by affidavit,” entered the requested judgment. The court ordered: “that paragraph 6 of the . . . Settlement Agreement . . . is reduced to judgment, and judgment is entered against defendants . . AIM . and . . . Weenig . . . , jointly and severally, and in favor of plaintiff Hobbs ... in the amount of $131,856.37, plus interest at six (6%) per cent per annum from January 6, 1976”; “that paragraph 7 of the Settlement Agreement is reduced to judgment, and judgment is entered against defendants AIM and Weenig, jointly and severally, thereunder”; and “that plaintiff is hereby granted judgment for its legal fees and expenses incurred in procuring enforcement of the Settlement Agreement in the amount of $4,836.” AIM and Weenig appeal from that judgment. Appellants first contend that the award of damages by the district judge in favor of Hobbs was unauthorized both at law and under the specific terms of the Settlement Agreement. Appellants acknowledge that a district court generally has jurisdiction to enforce a settlement agreement entered into under its aegis, Kelly v. Greer, 365 F.2d 669 (3d Cir. 1966), cert. denied, 385 U.S. 1035, 87 S.Ct. 772, 17 L.Ed.2d 682 (1967), and as part of its enforcement powers to award damages for breach of such an agreement, Walther & Cie v. U. S. Fidelity & Guaranty Co., 397 F.Supp. 937 (M.D.Pa. 1975). However, Paragraph 10 of the Settlement Agreement expressly provided that a default by any settling defendant would void the dismissal of the action as to that defendant, permitting plaintiff to reinstitute the litigation, with the defaulting defendant thereafter deprived of certain claims and specified defenses. Appellants thus argue that the inclusion in the Agreement of this express remedy, together with the absence of any language concerning a recovery of damages for nonperformance, precluded the court from awarding damages upon appellants’ failure to comply with the terms of the Agreement. Appellee Hobbs argues that notwithstanding the inclusion of this express remedy, a further provision of Paragraph 10, stating that “this Court shall retain jurisdiction of this action solely for the purpose of enforcing the undertakings contained in this Stipulation and Agreement,” authorized the court to award damages for breach of the settlement contract. The contentions of the parties raise a question respecting the proper construction and interpretation of the Settlement Agreement on which we decline to rule, the matter apparently never having been raised in the district court in the first instance and the present record being insufficient to determine the intent of the parties with respect to the remedies contemplated in Paragraph 10. See Aro Corporation v. Allied Witan Co., 531 F.2d 1368, 1371 n. 1 (6th Cir.), cert. denied, 429 U.S. 862, 97 S.Ct. 165, 50 L.Ed.2d 140 (1976); Florida Education Association, Inc. v. Atkinson, 481 F.2d 662, 663 (5th Cir. 1973); Lichtenstein v. Lichtenstein, 454 F.2d 69, 71 (3d Cir. 1972) and 425 F.2d 1111, 1113 n. 2 (3d Cir. 1970). However, even assuming that the district judge was not precluded by the terms of the Settlement Agreement from entertaining Hobbs’ motion for damages, remand of this case is necessary because damages should not have been awarded summarily under the circumstances here presented. Although it is well established that district courts generally have the power to enforce summarily, on motion, settlement agreements entered into with their approval, Kelly v. Greer, supra, at 671, there are instances where the facts at issue are so complex or disputed that summary enforcement of the agreement is improper. As stated by the court in Autera v. Robinson, 136 U.S.App.D.C. 216, 419 F.2d 1197 (1969): “[I]t is apparent that the summary procedure for enforcement of unperformed settlement contracts is not a panacea for the myriad types of problems that may arise. The summary procedure is admirably suited to situations where, for example, a binding settlement bargain is conceded or shown, and the excuse for nonperformance is comparatively unsubstantial. On the other hand, it is ill-suited to situations presenting complex factual issues related either to the formation or the consummation of the contract, which only testimonial exploration in a more plenary proceeding is apt to satisfactorily resolve. We commend the summary practice for use in connection with problems capable of precise resolution without attendant hazard to the interests of the parties. At the same time, it is evident that beyond that point the convenience of the summary procedure must yield to the exigencies of safeguarding all legally protected rights that are involved.” Id. at 219, 419 F.2d at 1200; see Kukla v. National Distillers Products Co., supra, at 621-22. In the instant case the district judge entered not an enforcement order but rather a judgment for unliquidated damages, and, as shown in the above portion of this opinion, the facts surrounding appellants’ alleged breach, the theory and amount of damages, and the party or parties properly liable for damages were complex and highly disputed issues. Although several conferences and at least one court hearing were convened, none of these proceedings was held subsequent to Hobbs’ motion for damages and none apparently was addressed to the issue of damages. Under these circumstances the district judge should have held a further proceeding to receive evidence from the parties bearing on the question of damages and other related issues. On the basis of the record before us, we are unable to review the remaining questions raised by appellants, viz., whether the district court erred in calculating Hobbs’ damages, in entering judgment against Weenig personally for AIM’s breach of Paragraph 6 of the Agreement, and in awarding attorneys’ fees and expenses in favor of Hobbs. The judgment recited that the district judge relied, inter alia, upon “the testimony and other evidence presented by the parties at the various hearings in this matter.” However, no records were ever taken or transcriptions made at said hearings, and the district judge made no findings of fact or conclusions of law in support of the judgment. Nor was an opinion or memorandum handed down. While neither party contests the proposition that the district judge, given the proper circumstances, had the power to “pierce the corporate veil” in holding Weenig personally liable and to award attorneys’ fees and expenses to Hobbs, we are left to speculate as to the basis of the district court’s judgment. See Kreda v. Rush, 550 F.2d 888, 890 (3d Cir. 1977); Goode v. Rizzo, 506 F.2d 542, 549 (3d Cir. 1974), reversed on other grounds, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976); Groh v. Brooks, 421 F.2d 589, 594-95 (3d Cir. 1970); O’Neill v. United States, 411 F.2d 139, 146 (3d Cir. 1969); Shahmoon Industries, Inc. v. Imperato, 338 F.2d 449, 452 (3d Cir. 1964). “It is necessary that a Court state its reasons for granting or denying attorneys’ fees, in order that the Court’s action can be properly reviewed on appeal.” Taylor v. Perini, 503 F.2d 899, 904 (6th Cir. 1974), vacated on other grounds, 421 U.S. 982, 95 S.Ct. 1985, 44 L.Ed.2d 474 (1975); see Goode v. Rizzo, supra, at 549; Milburn v. Huecker, 500 F.2d 1279, 1282 (6th Cir. 1974); Lee v. Southern Home Sites Corp., 429 F.2d 290, 296 (5th Cir. 1970). The same principle is applicable in order for this court to determine whether the extraordinary remedy of piercing the corporate veil was warranted on the facts of this case. Similarly, although appellee contends that the district court acted within its discretion in awarding damages based upon the value of the partnership assets, we are unable to discern the proofs or theories upon which the district court relied. Whether or not Rule 52(a), Fed.R. Civ.P., 28 U.S.C., is expressly applicable, the case at bar is one which requires findings of fact and conclusions of law in respect to the relevant issues. American Cyanamid Co. v. Sharff, 309 F.2d 790, 798 (3d Cir. 1962). The case must therefore be remanded to the district court so that the necessary findings of fact and conclusions of law may be made and the record augmented by further evidence if necessary. Accordingly, for the reasons set forth herein, the judgment of the district court will be vacated and the case will be remanded for proceedings not inconsistent with this opinion. . There is a factual dispute as to whether Weenig was the sole or the principal shareholder of AIM. The resolving of this dispute may be relevant but we cannot perceive whether it is on the present insufficient record. . Paragraph 1 of the Settlement Agreement provided that certain of the defendants, including Weenig but not AIM, were to make immediate cash payments to Hobbs aggregating 191,000. Of this amount, Weenig’s obligation was $21,000. Although the defendants, as a group, were delinquent in making these payments, Hobbs eventually received most of the cash with the aid of a court order. . The Jacaranda property had been purchased for $1,406,468. The sum of $953,962 was paid as a down payment, leaving a balance of $452,-506 payable in four equal payments of $113,-127, all of which was either delinquent on the settlement date or due before January 1, 1978. Although the payments on Tamarac were similarly in default, the partnership’s equity in Tamarac was much smaller and the property was considered less valuable than Jacaranda. Therefore, Hobbs agreed in Paragraph 6 of the Agreement that the abandonment of Tamarac, with the approval of a majority of the limited partnership interests in SME, would not be deemed a breach of the settlement agreement. In fact, Tamarac was eventually abandoned. . In a letter to Hobbs’ attorney, dated March 16, 1976, counsel for AIM and Weenig took the position that the language of Paragraph 6 of the Agreement did not accurately set forth the understanding between Hobbs and AIM. Apparently, Hobbs interpreted that provision to mean that until January 1, 1978, AIM would make all payments required under the purchase contract between SME and Gulfstream relative to the Jacaranda property. AIM’s counsel, however, interpreted Paragraph 6 to mean that AIM could use any means possible to preserve the property and that it was not strictly bound to the repayment schedule or terms set forth in the original purchase agreement. To that end, AIM, at the time the Settlement Agreement was executed and allegedly without the knowledge of Hobbs or the court, proposed to Gulfstream a plan whereby the delinquent interest would be added to the principal amount of the note and the terms and schedule of repayment would be modified. The negotiations further contemplated the delivery to Gulfstream, in escrow, of a deed in lieu of foreclosure which could be recorded in favor of Gulfstream without normal foreclosure if the partnership failed to make any payment. Hobbs contended that this plan violated Paragraph 6 of the Settlement Agreement in that it placed title to Jacaranda in immediate jeopardy and reduced the partnership’s equity in the property. In any event, as evidenced by a letter from Gulfstream to AIM and Weenig dated April 5, 1976, the negotiations failed when an initial payment from AIM was dishonored, and Gulfstream initiated foreclosure proceedings. . On June 21 23, 1976, Hobbs submitted applications and affidavits in support of the award of counsel fees and expenses in the amount of $4,836, but these were not acted upon by the court until the judgment of January 24, 1977. . This was the amount originally requested by Hobbs’ counsel subsequent to the court’s order of May 19, 1976. See note 5 supra. . In Walther & Cie v. U. S. Fidelity & Guaranty Co., supra, the court stated: “Under the general powers of the court, a settlement having taken place in a judicial proceeding, this court may direct a judgment directly in favor of one who has suffered damages as a result of a breach of the settlement agreement by a subscribing party. . . . When parties negotiate a compromise and settlement, this court has authority to see that it is carried out and to award damages for breach thereof. To hold otherwise would undermine the judicially-favored resolution of the litigation through settlement.” 397 F.Supp. at 946 (citations omitted); see Kelly v. Greer, supra, at 672. . While parties may stipulate in a settlement agreement to the entry of judgment for a sum certain upon the occurrence of a specified event, such as default, All States Investors, Inc. v. Bankers Bond Co., 343 F.2d 618 (6th Cir.), cert. denied, 382 U.S. 830, 86 S.Ct. 69, 15 L.Ed.2d 74 (1965), no such provision was included in the present Agreement. . Noting that a judgment enforcing a settlement agreement is analogous to a “judgment by consent,” Kukla v. National Distillers Products Co., 483 F.2d 619, 621 (6th Cir. 1973), appellants argue that they never “consented” to an award of damages against them. According to appellants, the district judge should have reinstated the case for trial consistent with the terms of the Agreement. They add that if this remedy would not afford plaintiff satisfactory relief, plaintiff could sue the defaulting defendant for breach of the Settlement Agreement. See Meetings & Expositions, Inc. v. Tandy Corp., 490 F.2d 714, 717 (2d Cir. 1974). . Appellee relies upon American Steel Engineering Co., Inc. v. U. S. Fidelity & Guaranty Co., Civil Action No. 75-2131 (E.D.Pa. April 12, 1976), for the proposition that the inclusion of a provision in a settlement agreement giving plaintiff the right to reinstitute its action upon breach does not prohibit the court from enforcing the settlement agreement and awarding damages for its breach. However, in that case the defendant’s obligation under the agreement was to pay plaintiff certain amounts of money, and the court’s enforcement order, which found the defendant in contempt, merely compelled payment of the amount originally due. Thus, the remedy imposed in American Steel was more ir. the nature of an enforcement order than a judgment for damages. . Appellee asserts that upon breach of the Agreement, as upon breach of any contract, it had the option of affirming the contract and moving for enforcement or disaffirming the contract and suing for damages. . At oral argument counsel for Hobbs appeared to concede the validity of this proposition, but insisted that the damage award herein was not determined summarily in that it was supported by sufficient evidence properly before the court. . We note that in Walther & Cie v. U. S. Fidelity & Guaranty Co., discussed supra at note 7, the court, while broadly construing the authority of the district court to award damages for breach of a settlement agreement, awarded such damages only after evidence concerning the construction of the agreement and the measure and amount of damages had been adduced at an evidentiary hearing. 397 F.Supp. at 941. . As noted infra, no records or transcriptions of these hearings were ever made. . Although, as appellee stresses, appellants never requested an evidentiary hearing, the briefs and affidavits before the district judge clearly reflected a dispute as to appellants’ alleged breach, the measure and amount of damages, and the propriety of holding Weenig personally liable. See Appendix at A68-A145. While we do not commend appellants’ failure to request further proceedings in the district court, we think that in this case it was incumbent for the judge to develop the facts more fully before entering judgment. . Since at least one hearing was held in open court, we note that 28 U.S.C. § 753(b) requires court reporters to record verbatim “all proceedings in other [than criminal] cases had in open court unless the parties with the approval of the judge shall agree specifically to the contrary . . . .” At oral argument counsel for Hobbs explained that for reasons not necessary to state here appellants desired to conduct the proceedings off the record. Because the district judge apparently acquiesced in this request, we assume that the conditions of § 753(b) were met. The desirability of having a court reporter present and at least taking notes has been repeatedly referred to by this court. Carroll v. Frontera Compania Naviera, 390 F.2d 311, 315 (3d Cir. 1968); Jaconski v. Avisun Corporation, 359 F.2d 931, 936 (3d Cir. 1966); and United States v. Sigal, 341 F.2d 837, 846-851 (3d Cir.), cert. denied, 382 U.S. 811, 86 S.Ct. 23, 15 L.Ed.2d 60 (1965). . Although ordinarily a stockholder, director, or officer of a corporation is not personally liable for the obligations of that corporation, see, e. g., Bucks v. Buckwalter, 419 Pa. 544, 215 A.2d 625 (1966), personal liability may be imposed in exceptional circumstances, often involving bad faith, contumacious behavior, or fraud. See, e. g., Francis O. Day Co. v. Shapiro, 105 U.S.App.D.C. 392, 267 F.2d 669 (1959); Thomas v. E. C. Mutter Construction Co., 405 Pa. 509, 178 A.2d 570 (1962). . The current rule regarding the award of attorneys’ fees has been summarized as follows: “Attorneys’ fees and costs are not ordinarily recoverable and unless specifically authorized by statute are awarded only in extraordinary cases. . . Exceptions to this general rule which are rooted in the inherent equity power of the courts consist of the power to assess attorneys’ fees for the willful disobedience of a court order as part of the fine to be levied on a defendant . . . and the authority to award attorneys’ fees when the losing party has acted in bad faith, vexatiously, wantonly, or for oppressive reasons.” Walther & Cie v. U. S. Fidelity & Guaranty Co., supra, at 946 (citations omitted); see Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975); Lichtenstein v. Lichtenstein, 481 F.2d 682 (3d Cir. 1973), cert. denied, 414 U.S. 1144, 94 S.Ct. 895, 39 L.Ed.2d 98 (1974). We note that the instant Settlement Agreement was silent with respect to the matter of attorneys’ fees. . Appellee argues that the word “refusal” in the court’s Order of May 19, 1976, provides this court with.an adequate finding upon which to review the attorneys’ fee award. The Order stated: “Defendants AIM and Weenig shall pay to plaintiff iustanter, the sum to be determined by the Court as compensation for plaintiffs’ costs and legal expenses arising out of said defendants’ refusal to perform their obligations under the Settlement Agreement and the Order" (emphasis added). However, we think this an insufficient indication of the basis of the district court’s award, especially in light of the fact that on two separate occasions appellee unsuccessfully petitioned the court to find appellants “in civil contempt ... by reason of their willful breach of the Settlement Agreement." We add that in the cases cited by appellee the appellate courts were able to review specific findings of bad faith, vexatiousness, and so forth made by the district courts. . Indeed, appellee’s lengthy recitation of the numerous bases upon which the district judge could have held Weenig personally liable only amplifies the need for proper findings. . As noted above, it appears that issues concerning the amount and theory of damages were not developed in any evidentiary proceeding. There is no indication on the record that an attempt was made to apply a measure of damages such as that set forth in Walther & Cie v. U. S. Fidelity & Guaranty Co., supra, at 944, where the court, referring to the breached settlement agreement as a “contract,” stated: “The court, therefore, must apply the general rule that where a contract is breached without legal justification, the injured party is entitled to recover, absent contrary provisions in the contract, whatever damages he suffered provided: (1) they were such as would naturally and ordinarily follow from the breach; (2) they were reasonably foreseeable and within the contemplation of the parties at the time they made the contract; and (3) they can be proved with reasonable certainty.” . Rule 52(a) of the Federal Rules of Civil Procedure provides in pertinent part: “In all actions tried upon the facts without a jury .... the court shall find the facts specially and state separately its conclusions of law thereon .... Findings of fact and conclusions of law are unnecessary on decisions of motions under Rules 12 or 56 or any other motion except as provided in Rule 41(b).” Although the parties have not specifically focused upon the applicability of Rule 52 to this case, appellee, in its brief, states cursorily that findings of fact and conclusions of law by the district court were not compelled by Rule 52. However, even though appellee’s request for damages was framed in terms of a “motion,” the district court’s ruling on the motion involved the resolution of numerous factual issues. Thus, it is arguable that this was in reality an action “tried upon the facts without a jury.” See 5A J. Moore, Federal Practice U 52.08 (2d Ed. 1977); Interpace Corporation v. City of Philadelphia, 438 F.2d 401, 405 (3d Cir. 1971) (Adams, J., dissenting). Question: What is the total number of respondents in the case that fall into the category "private business and its executives"? Answer with a number. Answer:
songer_counsel2	E	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party INGRAM v. UNITED STATES. No. 9181. Circuit Court of Appeals, Ninth Circuit. Sept. 16, 1939. Fred McDonald, E. J. Dunning, and Sol Abrams, all of San Francisco, Cal., for appellant. Frank J. Hennessy, U. S. Atty., and S. P. Murman, Asst. U. S. Atty., both of San Francisco, Cal. Before DENMAN, MATHEWS, and STEPHENS, Circuit Judges. DENMAN, Circuit Judge. This is an appeal from a judgment upon conviction of appellant for having morphine in his possession in violation of Section 2c of the Jones-Miller Act, 42 Stat. 596 (21 U.S.C. § 174, 21 U.S.C.A. § 174), and for conspiring in the violation with one Joseph A. Woods. Appellant seeks reversal for a claimed prejudicial cross-examination of his principal witness, his wife, Ann Ingram, tending to degrade her in matters having no relevant connection with the prosecution. The objections to the questions asked and exceptions to the court’s rulings sufficiently present for our consideration appellant’s contentions. The morphine was found in an apartment of Woods in an apartment house in San Francisco; also in the apartment were some of appellant’s clothing and household linen and his suitcase containing a scale, usable for measuring narcotics, empty capsules, and a radio claimed to be his. The presence of these articles in Woods’ rooms and the fact that appellant had a key to the apartment which he used to enter shortly after the federal agents, who were waiting there, had discovered the drug, constituted an important part of the evidence leading to his conviction. Appellant’s defense was that the apartment was leased by Woods and his visit there at the time of his arrest was to obtain his clothes which had been deposited there; that the morphine and other articles were not his and none had been placed by him in his suitcase. To sustain her husband’s defense, Mrs. Ingram testified that she had known appellant’s co-defendant Woods since' February, 1938, when appellant and herself moved to South San Francisco Auto Court, where they lived in a trailer until April 1, 1938, at which time they moved into an apartment house adjacent to that in which Woods lived. There they stayed until the end of July, 1938. Woods visited them both at the trailer and at the apartment. According to the witness, when appellant and herself moved back to the trailer in the latter part of July, 1938, Woods borrowed appellant’s linen for his own apartment.. The radio, she said, belonged to Woods. She further testified that appellant’s discarded wearing apparel was also taken by Woods to his apartment in appellant’s suitcase. Mrs. Ingram stated that on August 16, 1938, appellant, Woods, herself and her sister went on a fishing trip. Before leaving, Woods gave appellant the key to his apartment because appellant wanted to get his clothes. On returning, appellant left Mrs. Ingram at the trailer and went to get his clothes in Woods’ apartment. She did not see him again because he was arrested, the agents later arresting her too. The prosecuting attorney states he feared Mrs. Ingram had made an impression on the jury unfavorable to his case. For some reason not appearing in the record, Mrs. Ingram was permitted to leave the stand at the end of her direct examination. On her return the prosecutor entered into an attempt to impeach the witness. However, the questions addressed to her were not a cross of her direct examination. Instead of being cross-examination, they introduced an entirely new field of discussion, not relevant to the direct examination, namely, the private life of Mrs. Ingram. The method used was an inquiry as to the continuity of the wife’s living with her husband during years prior to the charged offense and then questioning as to claimed improprieties in her conduct, inconsistent with that of a continued marital relationship. It is obvious that the main purpose of entering into this area, irrelevant to the direct examination, was to degrade her in the minds of the jury. The prejudicial effect of the questions is obvious. Also it is our opinion that had they not been asked the jury well could have believed her explanation of her husband’s presence and that of his belongings in Woods’ rooms. The law is well stated in § 2051 of the California Code of Civil. Procedure: “§ 2051. How Impeached. A witness may be impeached by the party against whom he was called, by contradictory evidence or by evidence that his general reputation for truth, honesty, or integrity is bad, but not by evidence of particular wrongful acts, except that it may be shown by the examination of the witness, or the record of the judgment, that he had been convicted of a felony.” McKune v. United States, 9 Cir., 296 F. 480, 481; Conner v. United States, 9 Cir., 7 F.2d 313, 314; People v. Bell, 96 Cal.App. 503, 506, 274 P. 393, question as to chastity of a prosecutrix for rape; People v. Fleming, 166 Cal. 357, 381, 136 P. 291, Ann.Cas.1915B, 881, use of assumed name. We hold that the cross-examination was improper, and that, in permitting it, the court committed prejudicial error. Reversed. Question: What is the nature of the counsel for the respondent? A. none (pro se) B. court appointed C. legal aid or public defender D. private E. government - US F. government - state or local G. interest group, union, professional group H. other or not ascertained Answer:
songer_treat	G	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. Abraham WELDON, Appellant, v. KRAFT, INC. No. 89-1519. United States Court of Appeals, Third Circuit. Argued Nov. 16, 1989. Decided Feb. 22, 1990. Richard J. Orloski (Argued), Orloski & Hinga, Allentown, Pa., for appellant. William F. Kershner (Argued), Pepper, Hamilton & Scheetz, Berwyn, Pa., for ap-pellee. Before HIGGINBOTHAM, Chief Judge SCIRICA, Circuit Judge, and POLITAN, District Judge The Honorable A. Leon Higginbotham, Jr. became Chief Judge on January 16, 1990. The Honorable Nicholas H. Politan, United States District Judge for the District of New Jersey, sitting by designation. OPINION OF THE COURT SCIRICA, Circuit Judge. This is an appeal from a grant of summary judgment in favor of defendant, Kraft, Inc. (“Kraft”). Plaintiff Abraham Weldon brought suit in district court against Kraft, his former employer, claiming that Kraft terminated his employment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (1982) (“Title VII”), as well as 42 U.S.C. § 1981 (1982) (“§ 1981”). Moreover, Weldon alleged violations of the Employee Retirement Income Security Act (“ERISA”) and Pennsylvania’s Wage Payment and Collection Law (“WPCL”). We will affirm the dismissal of the ERISA and WPCL claims but because we find that the evidence creates a genuine issue of material fact as to whether Kraft intentionally discriminated against Weldon, we will reverse the dismissal of Weldon’s discrimination claims. I. Weldon, a black male, was employed as an assistant supervisor in Kraft’s Lehigh Valley, Pennsylvania plant from June 1986 until he was fired, effective April 14, 1987. Kraft claims that it terminated Weldon because: 1) his job performance was unsatisfactory; 2) he failed to produce adequate medical documentation for a month-long absence; and 3) he failed to follow company policy requiring the return of unused advance money within seven days of the completion of a business trip. Weldon contends that the asserted reasons are pretex-tual and that his termination was racially motivated. The depositions and documents included in the record set forth the following information. Kraft recruited Weldon through an employment agency specializing in minority applicants. Prior to his hiring, Weldon visited the plant and was interviewed by several Kraft managers and supervisors. It was standard practice at Kraft to check references and contact the applicant’s former employers. Satisfied that Weldon was the best candidate of those interviewed, Kraft hired him on June 30, 1986. Prom June 1986 through February 1987, Weldon was assigned to the first shift in the salads department under John Gier, an experienced supervisor with a reputation as one of Kraft’s most demanding trainers. In a December 1986 written evaluation, Gier rated Weldon’s performance as “below expectations.” The report indicated that Weldon had failed to meet a number of his performance objectives and that productivity had decreased in the department by ten percent. According to Gier, Apparent lack of sense of priorities deters performance enhancement. Desire to increase knowledge of company policies and procedures seems questionable. Manager needs to affirm a concerted effort (presently insufficient) to broaden the overall skills and knowledge required to be a good Kraft manager. Improvement in employee relations remains a priority In addition, Gier reportedly wrote a letter to his direct supervisor, in which he stated that Weldon lacked the intelligence necessary for the position. Later, as part of his deposition testimony, however, Gier stated that Weldon was both intelligent and capable but lacked motivation. Weldon contends that Gier treated blacks unfairly. He claims that Don Griffin, a black trainee under Gier, was forced to seek the help of another supervisor to learn the technical aspects of the job, and that another black trainee transferred out of Gier’s department to avoid losing his job. Weldon also claims that several black coworkers reported to him their personal experiences or the experiences of other blacks who had received poor evaluations from Gier or who had personal confrontations with him. According to Weldon, Richard Cliffe, a personnel manager, admitted that Gier had difficulty working with minority employees. In addition, Weldon claims that white coworkers warned him that Gier would disapprove if Weldon became too friendly with them. He concluded, however, that Gier’s disapproval was unrelated to the fact that Weldon was black. Finally, Weldon claims that Cliffe had promised to assign him to Carlos Delgado, whom Weldon alleges is a “minority trainer.” Gier confirmed that several black trainees under his supervision had experienced difficulties mastering job skills but contends that there was no personal animosity between himself and his trainees. Gier claims to have been instrumental in the promotion of the black trainee who allegedly transferred to save his job. Richard Cliffe denies telling Weldon that Gier had problems with minority employees. He claims to have been present when Don Griffin and Weldon discussed their problems working with Gier. Cliffe states that Griffin indicated that his difficulties were job-related and that he considered Gier to be an extremely demanding trainer. According to Cliffe, Griffin did not represent that Gier had any particular difficulty with black trainees. The record contains no deposition of Griffin and the parties cite to none. Finally, Cliffe states that he never promised to assign Weldon to Delgado and that Kraft has not designated any supervisor as a “minority trainer.” In February 1987, Cliffe arranged to have Weldon transferred to the third shift in the portion control department under the supervision of Ellen Williams. According to Cliffe, the transfer was arranged to “give [Weldon] a fresh start under another supervisor” and to ensure that Weldon’s performance problems were not related to the conflict with Gier. Williams claims that she was not satisfied with Weldon’s performance. She contends that Weldon had difficulty mastering and completing the various reports for which he was responsible, that he lacked initiative, and that he avoided active involvement in the day-to-day operations of the department. According to Williams, because of these perceived deficiencies, she and Jerry Serfass, the third shift superintendent, developed an “action plan” for Weldon that indicated areas for development and listed reports that Weldon should complete on a regular basis. Serfass claims to have met with Weldon on several occasions to discuss the plan, but contends that Weldon never forwarded any of the requested reports. Williams also claims to have met with Weldon numerous times to explain the plan and to monitor his progress. She contends that she never observed Weldon working on the reports. Weldon notes that he was the first trainee to be placed under William’s supervision and that Williams had very little contact with blacks prior to the assignment. Moreover, Weldon challenges William’s claim that she worked with him on improving the areas identified in the “action plan.” The plan was contained in a memo from Serfass dated March 23,1987. Williams testified at her deposition that she met and worked with Weldon after she received the memo. However, Weldon did not return to work on a regular basis after March 19, 1987. As part of his training, Weldon was scheduled to attend a week-long seminar conducted by Kraft beginning on Sunday, March 23, 1987, in Chicago, Illinois. The company had provided Weldon with airplane tickets and a $1000 cash advance to cover expenses. Weldon asked to be excused from work on the preceding Friday to prepare for the trip. Williams denied the request, claiming she needed his assistance in performing the sanitation tasks generally conducted on Friday nights. Nonetheless, on Friday, March 20, Weldon called Williams to inform her that he could not work that day because he was ill. Weldon never attended the seminar and did not return to work until April 13, 1987. During his absence, Weldon spoke with Williams several times by telephone. They discussed making arrangements for the return of the cash advance and the airplane tickets. Moreover, Cliffe claims that Weldon received specific instructions to present medical documentation covering the duration of his absence upon his return. Weldon returned to work on April 13 and, after his shift ended at 7:30 A.M. on April 14, he met with Serfass and Charles Harlin, the general superintendent. Weldon submitted a doctor’s certificate covering three days of absence and the plane ticket. Although he did not return the $1000 advance as requested, he presented a $110 traveler’s check and offered to sign over his last paycheck for $890, which had been withheld pending Weldon’s return of the cash advance. Harlin refused to accept the traveler’s check, insisting that Weldon return the entire amount of the cash advance. He reminded Weldon of previous instances where Weldon had reimbursed cash advances with personal checks that were returned for insufficient funds. Moreover, he stated that he was disappointed with Weldon’s job performance. At the conclusion of the meeting, Harlin suspended Weldon until further notice. On April 16, Weldon again met with Ser-fass. He presented a doctor’s certificate covering the period from March 20 to March 27. He signed over his withheld paycheck and again tendered the traveler's check, which this time was accepted. Nonetheless, on May 5, Cliffe issued a termination notice to Weldon, effective April 14, 1987. The letter stated that the termination resulted from Weldon’s “ongoing performance deficiencies,” and “lack of cooperation in resolving the question of [his] alleged disability.” Moreover, it stated: “We still await requested documentation on your alleged disability which began on March 20, 1987 so we can resolve the matter of your Short Term Disability benefits. Please be reminded that this is the fourth request for this ... information.” On May 7, Weldon produced a medical certificate covering the entire period of his absence. Weldon claims that Kraft’s insistence on medical certification evidenced racial animus because as a general rule Kraft required medical certification only from those with a history of abusing sick leave. Weldon did not have such a history and he contends that a similarly situated white employee would not have been treated as he was. Moreover, he claims that Kraft would not have withheld the paycheck of a white employee under the circumstances and that he was forced to use the cash advance until he was well enough to return to work. Finally, Weldon contends that his statistical evidence indicates that minorities constitute 37.9%, “a disproportionate amount,” of the involuntary terminations at Kraft between 1985 and 1988. According to Weldon, this suggests that Kraft has a “revolving door” policy for minority employees. Kraft counters that Weldon improperly grouped together all minorities in reaching its conclusion and that only 9.6% of the involuntary terminations within that period were black employees, while blacks comprised 14% of the employees in Weldon’s job group. II. To prevail on a claim of disparate treatment under Title VII or § 1981, the plaintiff must demonstrate purposeful discrimination. See Patterson v. McLean Credit Union, — U.S. -, 109 S.Ct. 2363, 2377, 105 L.Ed.2d 132 (1989). Absent direct evidence, the plaintiff may prove intent through the framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and refined in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). See Patterson, 109 S.Ct. at 2377-78; Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121, 105 S.Ct. 613, 621, 83 L.Ed.2d 523 (1985). Under this framework, the plaintiff has the initial burden of proving a prima facie ease by a preponderance of the evidence, which if successful, raises the inference of unlawful discrimination. Burdine, 450 U.S. at 250-52, 101 S.Ct. at 1092-93. This burden is not onerous. The plaintiff must show that he is a member of a racial minority, qualified for the job from which he was discharged, and that others not in the protected class were treated more favorably. See Hankins v. Temple University, 829 F.2d 437, 440 (3d Cir.1987). If the plaintiff establishes a prima facie case, the burden of production shifts to the defendant to clearly set forth a legitimate, nondiscriminatory reason for the discharge. Burdine, 450 U.S. at 255, 101 S.Ct. at 1094. A satisfactory explanation dispels the inference of discrimination arising from the plaintiff’s initial evidence. Id. The ultimate burden of persuasion remains with the plaintiff, who then must prove by a preponderance of the evidence that the reasons asserted by the defendant were a pretext for discrimination. Id. at 253, 101 S.Ct. at 1093. This may be accomplished either directly, by showing that a discriminatory reason more likely motivated the employer, or indirectly, by showing that the asserted reason is unworthy of credence. Id. at 256, 101 S.Ct. at 1095. The plaintiff’s initial evidence may be considered by the trier of fact in making this determination. Id. at 255 n. 10, 101 S.Ct. at 1095 n. 10. A plaintiff need not carry this burden, however, to withstand a motion for summary judgment. Furthermore, the evidence must be viewed in the light most favorable to the nonmoving party. Sorba v. Pennsylvania Drilling Co., 821 F.2d 200, 204 (3d Cir.1987), cert. denied, 484 U.S. 1019, 108 S.Ct. 730, 98 L.Ed.2d 679 (1988). A trial court may enter summary judgment only “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). An issue is “genuine” if there is sufficient evidence upon which a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The role of the trial judge “is not himself to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial.” Id. at 250, 106 S.Ct. at 2511. Our review of the district court’s decision is plenary. We must apply the same test the court should have used initially. Hankins, 829 F.2d at 440. In a discrimination case, we must decide whether sufficient evidence exists to create a genuine issue as to whether the employer intentionally discriminated. Id. The defendants must show that “the plaintiff will be unable to introduce either direct evidence of a purpose to discriminate or indirect evidence by showing that the proffered reason is subject to factual dispute.” Id. at 440-41. A plaintiff who has made a prima facie showing of discrimination can withstand a summary judgment motion by pointing to “evidence establishing a reasonable inference that the employer’s proffered explanation is unworthy of credence.” Sorba, 821 F.2d at 205. In this case, the district court concluded that Weldon had established a prima facie case of discrimination. Although Kraft apparently conceded that Weldon was discharged while similarly situated white coworkers were retained, Kraft argued that Weldon was not qualified for his position as evidenced by his poor performance evaluations. Nonetheless, the court accepted, arguendo, that Weldon’s recruitment and employment by Kraft established his qualifications for purposes of the prima facie case. The district court also held that Weldon had failed to discredit Kraft’s assertion that poor job performance and failure to provide adequate medical documentation were legitimate, nondiscriminatory reasons for his termination. According to the court, the only evidence Weldon presented to defeat the assertion of poor performance was his own unsupported testimony that in his view, he performed satisfactorily. The court held that Weldon "cannot rebut defendant’s position solely by reference to his own self-interested assertions.” Similarly, with respect to the lack of medical documentation, the court stated that Weldon’s only rebuttal evidence was his own assertion that similarly situated whites would not have been required to provide such documentation. The court found that there was nothing in the record to show that Kraft would not have required the same from whites and that Weldon’s failure to provide the documentation after repeated requests was a legitimate reason for his termination. Because the court found that Weldon had not met his burden of showing that Kraft’s assertions concerning job performance and failure to provide medical certification were unworthy of credence, the court did not discuss in detail Kraft’s third asserted reason for the discharge, Weldon’s failure to follow company policy with respect to advance money. The court stated, however, that in light of Weldon’s offer and actual return of the full amount of the advance, it could not “conclude as a matter of law that his delay in reimbursing Kraft, standing alone, would constitute a sufficient reason for his discharge.” In response to Weldon’s statistical data, the district court noted that statistics highlighting an employment practice with a disproportionately adverse effect on minorities may be probative of an intent to discriminate. Nonetheless, the court found that a 9.6% termination rate for black employees was insufficient to show that Kraft maintained a “revolving door” policy. III. To establish a prima facie case, Weldon must show that he was qualified for his position. On appeal, Kraft argues that Weldon's poor performance evaluations indicate that he was not qualified. Under the circumstances, we believe that Weldon has established a prima facie case. The framework set forth in McDonnell Douglas, which begins with proof of a pri-ma facie case, was “never intended to be rigid, mechanized, or ritualistic. Rather, it is merely a sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimination.” Furnco Construction Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957 (1978). The importance of the framework lies in “its recognition of the general principal that any Title VII plaintiff must carry the initial burden of offering evidence adequate to create an inference that an employment decision was based on discriminatory criterion illegal under the Act.” International Brotherhood of Teamsters v. United States, 431 U.S. 324, 358, 97 S.Ct. 1843, 1866, 52 L.Ed.2d 396 (1977); see E.E.O.C. v. Metal Service Co., 892 F.2d 341, 348 (3d Cir.1990) (courts should be sensitive to myriad of ways such an inference can be created). Kraft’s claim that Weldon cannot establish a prima facie case is intertwined with its assertion that Weldon’s poor performance evaluations constitute a legitimate reason for the discharge. We have held that while objective job qualifications should be considered in evaluating the plaintiff’s prima facie case, the question of whether an employee possesses a subjective quality, such as leadership or management skill, is better left to the later stage of the McDonnell Douglas analysis. We noted that subjective evaluations “are more susceptible of abuse and more likely to mask pretext.” Fowle v. C & C Cola, 868 F.2d 59, 64-65 (3d Cir.1989). Thus, to deny the plaintiff an opportunity to move beyond the initial stage of establishing a prima facie case because he has failed to introduce evidence showing he possesses certain subjective qualities would improperly prevent the court from examining the criteria to determine whether their use was mere pretext. Id. at 65. In this case, Kraft does not contend that Weldon lacked the background qualifications for the position at the time he was hired. Moreover, Gier testified that Weldon had both the intelligence and the ability required for the position but lacked motivation. The negative evaluations Weldon received from Gier and Williams are couched largely in subjective terms. Gier found that Weldon lacked “a sense of priorities,” the “[djesire to increase knowledge of company policies and procedures,” and that he failed to put forth a “concerted effort” to broaden his skills. Williams indicated that Weldon had difficulty understanding and preparing the reports that were required of him, that he lacked initiative, and that he avoided active involvement in the day-to-day operations of the department. On the other hand, Gier’s evaluation that Weldon failed to meet performance goals in the areas of productivity, output, and efficiency is based on objective criteria. In this instance, however, it is unclear whether the goals constituted a standard of performance expected of all assistant supervisors or instead represented a subjective determination by Gier of the performance level Weldon had to achieve to be deemed a satisfactory assistant supervisor in that department. Indeed, there is no dispute that Gier was one of the most demanding supervisors at Kraft. We certainly do not question Kraft’s prerogative to set any standards it wishes for employee performance nor do we seek to substitute our view of what constitutes adequate performance. We simply decline to treat these subjective assessments as evidence that Weldon has failed to establish a ;prima facie case, thereby collapsing the entire analysis into a single initial step at which all issues are resolved. See Fowle, 868 F.2d at 64. Rather, we will consider the assessments in the context of Weldon’s charge that the poor evaluations he received were a pretext for racial discrimination and unworthy of credence. IV. Weldon contends that Kraft’s asserted nondiscriminatory reasons are pre-textual and that his termination was racially motivated. According to Weldon, his assignment to one of the toughest supervisors at Kraft, who allegedly had a history of difficulties with black trainees, and then to a supervisor who lacked experience both as a trainer and in dealing with black employees raises an inference that Kraft neither intended nor expected him to succeed in his position. Weldon contends that his discussions with and about other black employees show that his experience as a black trainee was not unique. Moreover, he argues that the statistical evidence regarding the involuntary termination of minority employees at Kraft supports an inference that Kraft’s asserted reasons are unworthy of credence. Finally, Weldon claims that Kraft would not have required medical documentation or strict adherence to the advance money policy from similarly situated white employees. Although we consider this a close case, we conclude that Weldon’s evidence is sufficient to create a genuine issue of fact and that the district court erred in granting summary judgment. If a factfinder were to credit Weldon’s testimony regarding the harshness of the treatment he and other blacks received as well as his view of the statistical evidence, it could conclude that the performance evaluations were unfair and that Kraft’s explanations were pretex-tual. Rather than determining whether the evidence could support an inference of pretext, however, we believe the district court weighed the competing testimony and resolved factual issues that should have been left for another day. For example, the district court balanced Weldon’s testimony that certain black employees had been the target of Gier’s racism, against the contrary testimony of Gier and Cliffe, and concluded that “the record establishes that Gier ... did not have specific problems with black employees.” Although Weldon was extraordinarily tardy in providing his supervisors with complete medical documentation, he did present certificates covering approximately one-third of his absence prior to his termination. In view of this, the district court decided that Weldon’s proof had “not overcome defendant’s assertion that his failure to provide medical documentation ... was a legitimate, nondiscriminatory reason for his termination.” We recognize that the district court, sitting as a trier of fact, ultimately may decide that Weldon failed to meet his burden of showing by a preponderance of the evidence that Kraft’s explanations were pre-textual. At this stage, however, the only question before the district court was whether the evidence established a reasonable inference that Kraft did not discharge Weldon for the reasons asserted. See Sorba, 821 F.2d at 205. We cannot agree that Weldon’s uncorroborated deposition testimony is insufficient to create a genuine issue on the question of discriminatory intent. As we have stated in the past, there is no rule of law that the testimony of a discrimination plaintiff, standing alone, can never make out a case of discrimination that could withstand a summary judgment motion. Jackson v. University of Pittsburgh, 826 F.2d 230, 236 (3d Cir.1987), cert. denied, 484 U.S. 1020, 108 S.Ct. 732, 98 L.Ed.2d 680 (1988); see Graham v. F.B. Leopold Co., Inc., 779 F.2d 170, 173 (3d Cir.1985) (plaintiff’s deposition testimony could suffice to create genuine dispute about material issue). Discriminatory conduct is often subtle and difficult to prove. For this reason, our legal system permits discrimination plaintiffs to prove their cases with circumstantial evidence. Jackson, 826 F.2d at 236. This record contains circumstantial evidence from which a reasonable trier of fact could find that Kraft’s claims are pretextual and that racial animus played a role in Weldon’s discharge. The issue of pretext in this case turns largely on the credibility of the competing testimony. As such, it is inappropriate to decide on a motion for summary judgment. Id. V. The district court dismissed Weldon’s ERISA claim after finding that Weldon had failed to exhaust his administrative remedies. Except in limited circumstances that are not alleged here, a federal court will not entertain an ERISA claim unless the plaintiff has exhausted the remedies available under the plan. Wolf v. National Shopmen Pension Fund, 728 F.2d 182, 185 (3d Cir.1984). Under the Kraft plan, a claimant may appeal an adverse determination to the plan administrator within ninety days of receiving notice of denial of benefits. It is undisputed that Weldon failed to appeal the denial of his claim to the administrator. He argues, however, that he should be deemed to have exhausted his administrative remedies because his attorney was in contact with Kraft’s in-house counsel regarding the claim. As the district court correctly noted, however, Weldon has not provided us with any information regarding the substance of those contacts. On the undisputed facts before us, we must conclude that Weldon has failed to present any evidence that he has exhausted his administrative remedies and thus Kraft is entitled to summary judgment on this issue. The district court also dismissed Weldon’s claim under WPCL, Pa.Stat.Ann. tit. 43, § 260.1 et seq. (Purdon 1964 & Supp. 1989). Weldon does not contest the district court ruling that ERISA preempts WPCL with respect to his disability benefits claim. He contends, however, that a genuine factual dispute exists with respect to his claim for wages lost during his suspension. WPCL provides in part: Whenever an employer separates an employe from the payroll, or whenever an employee quits or resigns his employment, the wages or compensation earned shall become due and payable not later than the next regular payday of his employer on which such wages would otherwise be due and payable. Pa.Stat.Ann. tit. 43, § 260.5 (Purdon Supp.1989). WPCL does not create a right to compensation. Rather, it provides a statutory remedy when the employer breaches a contractual obligation to pay earned wages. The contract between the parties governs in determining whether specific wages are earned. Sendi v. NCR Comten, Inc., 619 F.Supp. 1577, 1579 (E.D.Pa.1985), aff'd, 800 F.2d 1138 (3d Cir.1986); Laborers Combined Funds v. Mattei, 359 Pa.Super. 399, 403, 518 A.2d 1296, 1298 (1986). Kraft contends that it is company policy not to pay wages during suspension and that only employees who are reinstated become eligible for back pay. Moreover, Kraft states that Weldon performed no services for the company during his suspension that would entitle him to wages. Weldon claims that as a salaried employee, he was eligible to receive wages during his suspension. In support of his position, Weldon cites a statement by Richard Cliffe indicating that Cliffe could not recall a specific case involving the suspension without pay of a white salaried employee. Cliffe explained, however, that he had no specific recollection “[bjecause terminating a management employee is ... a rare case.... But the same procedure would have been utilized.” There is no evidence to indicate that Kraft had an express contractual obligation to pay wages to a salaried employee during a suspension that ultimately resulted in termination. Nor do we believe that a reasonable trier of fact could infer from Cliffe’s statement the existence of an implied contractual obligation. Therefore, we find that Kraft is entitled to summary judgment on this issue. VI. For the foregoing reasons, we will affirm the dismissal of Weldon’s claims under ERISA and WPCL. Because we find that the evidence creates a genuine issue as to whether Weldon’s termination was racially motivated, we will reverse the dismissal of the discrimination claims and remand to the district court. Each side to bear its own costs. . Weldon's complaint also contained a Fourteenth Amendment claim against Kraft. The district court held that Weldon could not proceed on that claim because Kraft is a private corporation and Weldon made no showing of state action. . There is some discrepancy in the record over whether the $110 check presented by Weldon was a traveler’s check, a certified check, or a money order. The parties appear to agree, however, that it was not a personal check. . Faced only with the question of whether Weldon’s offer of proof on the issue of intentional discrimination is sufficient to withstand summary judgment, we need not decide whether Weldon has stated a claim cognizable under § 1981, as explained by the Supreme Court in Patterson v. McLean Credit Union, — U.S. -, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989). . In light of our decision that Weldon's evidence is sufficient to withstand summary judgment under the McDonnell Douglas framework, we need not decide whether the evidence is suffi-dent to withstand a similar motion as a "mixed motive" case under the framework established in Price Waterhouse v. Hopkins, — U.S. -, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989). Question: 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:
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. AUSBIE v. CALIFORNIA. No. 52, Misc. Decided October 14, 1963. Petitioner pro se. Stanley Mosk, Attorney General of California, and William E. James, Assistant Attorney General, for respondent. Per Curiam. The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment is vacated and the case is remanded to the Supreme Court of California for further consideration in light of Douglas v. California, 372 U. S. 353. Mr. Justice Harlan, for the reasons stated in Daegele v. Kansas, ante, p. 1, would have withheld disposition of this petition for certiorari until the disposition, after argument, of that case. Question: What reason, if any, does the court give for granting the petition for certiorari? A. case did not arise on cert or cert not granted B. federal court conflict C. federal court conflict and to resolve important or significant question D. putative conflict E. conflict between federal court and state court F. state court conflict G. federal court confusion or uncertainty H. state court confusion or uncertainty I. federal court and state court confusion or uncertainty J. to resolve important or significant question K. to resolve question presented L. no reason given M. other reason Answer:
songer_stpolicy	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 interpretation of state or local law, executive order, administrative regulation, doctrine, or rule of procedure by the court favor the appellant?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". NEW YORK LIFE INS. CO. v. SEIGHMAN. No. 9560. Circuit Court of Appeals, Sixth Circuit. Feb. 15, 1944. J. R. Kistner, of Cleveland, Ohio (J. R. Kistner and R. M. MacArthur, both of Cleveland, Ohio, on the brief), for appellant. C. N. Krieg, of Cleveland, Ohio (M. C. Harrison, C. N. Krieg, and Harrison & Marshman, all of Cleveland, Ohio, on the brief), for appellee. Before ALLEN, HAMILTON, and Mc-ALLISTER, Circuit Judges. ALLEN, Circuit Judge. In this case a judgment was rendered on a jury verdict in an action for personal injuries. Appellant contends that reversible error exists in the admission of testimony and in the charge of the court. Appellee, an employee of a plumber engaged in doing work at an apartment house owned and operated by appellant in the city of Cleveland, Ohio, was injured by falling from the fourth floor landing of the rear stairway located outside of the building. Appellee contends that the accident was caused by the defective condition of the railing around the fourth floor landing or platform. This railing consisted of a two-by-four some ten feet long, nailed and screwed at one end into an upright post and at the other end mortised and plastered into the brick wall for an inch and a half or two inches. Three witnesses, including the then custodian of the apartment house, testified that the railing was rotten for some eight to ten inches from the post. While appellant’s carpenter denied that the railing was rotten, he admitted that immediately after the accident it was pulled away from the post. At the time appellee and his employer were running a water pipe up the back of the apartment wall about three inches outside the railing which guarded the stairway landing for each' floor. Successive joints of pipe were placed in vertical position along the wall and later fastened with clamps. Appellee had installed a spigot at the end of the pipe on the fourth floor. Noticing that the spigot was not straight, he stepped over to the railing and attempted to straighten the pipe with a wrench. He testified that he did not recall leaning against the railing, and that the next thing he remembered he was lying forty feet below, on the ground. The railing had pulled away from the post and fallen over onto the floor below. Appellee suffered lacerated wounds in the occipital region, a mild concussion of the brain, an injury to his spine, com-minuted fractures of the left pubis end of the left ischium (that is of the pelvis), and comminuted fractures of two bones of each foot. Appellant contends that its motion for directed verdict should have been sustained because of the fact that appellee did not testify as to the exact circumstances which caused the accident. We think that this contention has no merit here. Either the railing was rotten or it was so insecurely fastened at the post as to be torn away. It fell simultaneously with appellee, for it was found hanging down over the next floor by the custodian and other witnesses immediately after the fall. The jury was entitled to infer from the position of the spigot, three inches from the railing, and the fact that appellee was working over the railing with a wrench, holding the pipe with his left hand, that unconsciously he placed his weight against the railing and that in its rotten and insecure condition it proximately caused the accident. The verdict of the jury shows that this was in effect the finding. This was not, as contended, an inference upon an inference, but an inference from proven facts. The District Court did not err in admitting testimony as to a similar occurrence prior to the accident, namely, that another plumber working on the third floor complained that he leaned against the similar railing and it started to give way. Such evidence is relevant as tending to show the dangerous condition of the premises, and appellant’s knowledge of such condition, if it relates to an occurrence which happened under substantially the same conditions at substantially the same place as the accident in suit and at a time not too remote therefrom. Sears, Roebuck & Co. v. Copeland, 4 Cir., 110 F.2d 947; Illinois Central Railroad Co. v. Sigler, 6 Cir., 122 F.2d 279, 284; Rule 43(a), Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c. Here the stairway was continuous, and is shown by the photographs in evidence to have been of the same structure with a landing on each floor, guarded by a railing set into the wall and affixed to a post. The stairway was on the outside of the building and exposed to the inclemency of the weather, and as the building was some thirty years old, it is evident that both railings were similar parts of a structure, liable to fall into disrepair if neglected by persons responsible for their condition. The custodian, prior to the accident, received a com plaint that the railing on the third floor was defective. On examination he found this railing to be rotten at the post and at the same time discovered a similar defect in the railing on the fourth floor. He tried to repair each of the railings by affixing strap iron. However, the fastening of the fourth floor railing was still weak so that “a child could have moved it at the post end.” The custodian notified the manager of the building of the condition of the railing the next time the manager came out, but he was in a hurry, assumed that the railing was all right, and did not examine it. The manager was expressly notified by one of the tenants as to the condition of the fourth floor railing. While he denies receiving this notice as to the fourth floor, he admits that some repair was made on a lower railing, and that the custodian asked him to look at the railing. The Ohio cases cited by appellant as requiring reversal upon the ground that the testimony as to the condition of the third floor railing was irrelevant do not apply to the present situation. The positive testimony of the custodian shows the presence of almost identical conditions in the railings, at the same time, and at substantially the same place, each producing or tending to produce a similar accident within a few weeks. Both the occurrence of the prior incident on the third floor and the very similar condition of the railings on the third and fourth floors tended to establish knowledge binding on the appelant through its agent who had charge of general repairs. F. W. Woolworth Co. v. Kinney, 121 Ohio St. 462, 169 N.E. 562. The fact that the custodian testified that a complaint was made to him of the insecurity of the third-floor railing prior to the accident involved in this litigation does not constitute ground for reversal. Admissibility of the evidence is to be determined by the rules heretofore applied in equity cases in United States courts or by the rules of evidence applied in state courts. The statute or rule which favors the reception of the evidence governs. Rule 43(a), Federal Rules of Civil Procedure. This rule has liberalized the admissibility of evidence as much as possible by providing always for the widest rule of admissibility whether under federal law or federal equity practice or state rule. Dellefield v. Blockdel Realty Co., 2 Cir., 128 F.2d 85. Appellant claims that this testimony was pure hearsay and that its admission constituted prejudicial error; but the evidence was admissible as bearing upon the question of notice. The landlord’s knowledge of the dangerous condition of the railing was an issue in the case. Testimony that prior to the accident a complaint as to a defective condition in the third-floor railing similar to that alleged to have caused the accident had been made to the custodian and by him communicated to appellant’s agent, was relevant and admissible. This is the federal rule in this circuit. Evans v. Erie R. Co., 6 Cir., 213 F. 129, 133; Illinois Central R. Co. v. Sigler, supra, 122 F.2d at page 284. In the latter case evidence was admitted as to prior accidents at a railroad crossing concerning which no eyewitness testified, and this was held admissible on the question of notice. Cf. Langham v. Jackson, 211 Ala. 416, 100 So. 757; Carillo v. Murray & Layne Co., 25 Ariz. 303, 216 P. 689; Paul v. Thompson, 118 Ga. 358, 45 S.E. 387; Burrell Engineering & Construction Co. v. Grisier, 111 Tex. 477, 240 S.W. 899. The statement of the custodian that Petticrew, his superior, to whom he reported the incident on the third floor, said he did not have time to examine the railing, was clearly admissible. Since the custodian had repaired the railings on both floors, the failure of Petticrew, who was in general charge of repairs, to examine the work done by the custodian, was evidence of negligence. His declaration that he did not have time to do this was binding on the appellant, and admissible on the issue of notice. Kimbark v. Timken Roller Bearing Co., 115 Ohio St. 161, 167, 152 N.E. 385. Moreover, the admission of the testimony was in no way prejudicial, for Petticrew himself stated that he did not examine the railing because he was in a hurry. In view of appellant’s statement in its answer that it operated the building, its contention that it had no control over the stairway and the landing and no possession is clearly without merit. In Ohio the landlord is liable to an invitee for lack of ordinary care in the maintenance of common stairways, halls and landings, in buildings which it' operates. Davies v. Kelley, 112 Ohio St. 122, 146 N.E. 888; Prendergast v. Ginsburg, 119 Ohio St. 360, 363, 164 N.E. 345; Rice v. Ziegler, 128 Ohio St. 239, 190 N.E. 560; 24 Ohio Jurisprudence § 208. The District Court did not err in permitting witnesses to testify as to facts from which it could be inferred that Petticrew was the agent of the appellant in the management of the premises and receiving notice of defective condition. Pugh v. Akron-Chicago Transportation Co., 64 Ohio App. 479, 489, 28 N.E.2d 1015. Since the appellant operated the building, it must have operated it through some agent. While appellant denies that Petticrew was acting for it, and points to the fact that Petticrew was employed by one Shimmon, a so-called “property manager,” appellant produces no one except Petticrew who had any connection with operation of the building. The tenants saw only the custodian and Petticrew with reference to rents and all matters connected with the apartment house. Petticrew visited the building periodically to see what was needed and to give all necessary orders. He authorized major repairs and was in general charge of the apartment house. If appellant operated its property through someone other than Petticrew, it 'was its duty to produce that person. Appellant states that Shimmon handled certain properties, including this apartment house, as property manager on a fee or commission basis. Clearly if appellant chose to operate the apartment house through Shimmon, although he was not exclusively its agent, then Shimmon’s employee Petticrew represented appellant in supervision of the apartment house. The jury was justified in concluding that Petticrew was in charge of the operation, and as such authorized to receive notice binding on the appellant. Appellant has cited more than one hundred Ohio decisions of the Supreme Court and inferior courts, most of which have no bearing on this case. In Hall v. Ferro-Concrete Construction Co., 71 Ohio App. 545, 50 N.E.2d 556, which involved a death alleged to be due to failure to provide a guard rail around a hatchway, no one saw the decedent fall. Here there is positive testimony from the appellee and from a disinterested witness as to appellee’s fall, and the simultaneous fall of the railing. In Shaffer v. S. S. Kresge Co., 24 O.L.A. 9, it was declared that notice to a janitor who had nothing to do with repairs did not bind the owner. Here notice was given not only to the custodian, who made minor repairs, but to Petticrew, who was in charge of all repairs. It would serve no useful purpose further to discuss these multitudinous cases, so clearly differentiated on the facts. As to the claim of error in the charge, the principal contention is that the court charged upon a statute inapplicable to the case, namely, the so-called “frequenter statutes,” Sections 871-13, 871-15, 871-16 and 871-17, General Code of Ohio. We question whether these statutes apply to the present situation. While they have not been construed by the Supreme Court of Ohio, their context and phrasing indicate that they were meant to apply to employment in a place of a character different from that involved here. Cf. Popowich v. American Steel & Wire Co., 6 Cir., 13 F.2d 381. However, the appellant did not object to the court’s instructions on this point and cannot assign the giving of them as error. Rule 51, Rules of Civil Procedure; Reeve Bros. v. Guest, 5 Cir., 131 F.2d 710, 712; Williams v. Powers, 6 Cir., 135 F.2d 153, 157. The appellant clearly owed the duty of exercising ordinary care, for the appellee was an invitee, and not a trespasser. Hozian v. Crucible Steel Casting Co., 132 Ohio St. 453, 9 N.E.2d 143, 112 A.L.R. 333; Kelly & Sons v. Howell, 41 Ohio St. 438; McGinty v. Pennsylvania R. Co., 6 Cir., 6 F.2d 514; American Steel & Wire Co. v. Sieraski, 6 Cir., 119 F.2d 709, 710. Upon this point and upon the principal features of the case the court charged correctly and in detail. We conclude that no reversible error exists in the charge. In view of the numerous and serious injuries sustained by the appellee, we think that the verdict is not excessive. Other errors alleged have been considered, but as none of them calls for reversal, the judgment is affirmed. Question: Did the interpretation of state or local law, executive order, administrative regulation, doctrine, or rule of procedure by the court favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_casetyp1_1-3-1	P	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. James SHELLEY, Defendant-Appellant. No. 116, Docket 23246. United States Court of Appeals, Second Circuit. Argued Nov. 12, 1954. Decided Dec. 29, 1954. Edgar G. Brisach, Asst. U. S. Atty., Brooklyn, N. Y. (Leonard P Moore, U. S. Atty., Brooklyn, N. Y., on the brief), for plaintiff-appellee. Louis J. Castellano, Jr., Brooklyn, N. Y., for defendant-appellant. Before CLARK, Chief Judge, and FRANK and HARLAN, Circuit Judges. CLARK, Chief Judge. Defendant Shelley was prosecuted below on an information charging misuse of a passport in violation of 18 U.S.C. § 1544. The case was tried to the court on a stipulation of facts stating that Shelley had delivered a passport made out in his name to one Claflin in the Southern District of New York, knowing that Claflin intended to use the passport to obtain the illegal entry into the United States of an alien named Koch. Thereafter Claflin caused the passport to be given to Koch in Europe, who used it to effect entrance into the United States at the New York International or Idlewild Airport in the Eastern District. After the court had received the stipulation, Shelley made motions both for dismissal and for a judgment of acquittal. Judge Inch granted a motion to dismiss for failure to show commission of the offense charged in the Eastern District of New York, but refused to rule on other motions going to the merits. Shelley appeals from failure to grant these other motions, contending that they were intimately involved in the motion to dismiss for improper venue. In a motion to dismiss the appeal the government asserts that the order below was unappealable because interlocutory; but in further contending that defendant has no standing to appeal, it asserts that in fact a crime was committed in the Eastern District. An order of dismissal for lack of venue, contrary to the assertion of the government, is final and appealable. “That the dismissal was without prejudice to filing another suit does not make the cause unappealable, for denial of relief and dismissal of the case ended this suit so far as the District Court was .concerned.” United States v. Wallace & Tiernan Co., 336 U.S. 793, 794, 795 n. 1, 69 S.Ct. 824, 825, 93 L.Ed. 1042. And see Butler v. Ungerleider, 2 Cir., 187 F.2d 238; Lopinsky v. Hertz Drive-Ur-Self Systems, 2 Cir., 194 F.2d 422; Jiffy Lubricator Co. v. Stewart-Warner Corp., 4 Cir., 177 F.2d 360, 362, certiorari denied 338 U.S. 947, 70 S.Ct. 484, 94 L.Ed. 584; 6 Moore’s Federal Practice ff 54.12 [1], p. 114 (2d Ed.1953). We do not need to reach the claim of the United States that Shelley .should be held under 18 U.S.C. § 2 to have committed a crime in the Eastern District as an aider and abettor of Koch’s action at Idlewild, because we accept the other contention of the United States that Shelley has no standing to appeal. A judgment is appealable only at the behest of a party aggrieved by it. United States v. Adamant Co., 9 Cir. 197 F.2d 1, certiorari denied Bullen v. Scoville, 344 U.S. 903, 73 S.Ct. 283, 97 L.Ed. 698; Keeler v. C.I.R., 10 Cir., 180 F.2d 707; In re Michigan-Ohio Bldg. Corp., 7 Cir., 117 F.2d 191. Having received the contested order of dismissal at his own request, Shelley is a successful litigant without appealable interest. He is not injured, and — luckily for him— may not appeal. The appeal must therefore be dismissed. Appeal dismissed. 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:
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. BURKS et al. v. LASKER et al. No. 77-1724. Argued January 17, 1979 Decided May 14, 1979 BreNNAN, J., delivered the opinion of the Court, in which Burger, C. J., and White, Marshall, BlacicmuN, and SteveNS, JJ., joined. Blacic-mun, J., filed a concurring opinion, post, p. 486. Stewart, J., filed an opinion concurring in the judgment, in which Powell, J., joined, post, p. 487. Rehnquist, J., took no part in the consideration or decision of the case. Daniel A. Pollack argued the cause for petitioners. With him on the briefs were Martin I. Kaminsky, Leonard Joseph, John M. Friedman, Jr., Eugene P. Souther, and Anthony B. Mansfield. Joseph H. Einstein argued the cause for respondents. With him on the brief were Steven Mallis, Leonard Holland, and David J. Sweet. Ralph C. Ferrara argued the cause for the Securities and Exchange Commission as amicus curiae urging reversal. With him on the brief were Solicitor General McCree, Stephen M. Shapiro, and Jacob H. Stillman. Briefs of amici curiae urging reversal were filed by G. Duane Vieth, Paul S. Ryerson, and Meyer Eisenberg for the Investment Company Institute, and by John E. Tobin, Roger W. Rapp, and Richard H. Sayler for Investors Diversified Services, Inc. Mr. Justice Brennan delivered the opinion of the Court. The question presented in this case is whether the disinterested directors of an investment company may terminate a stockholders’ derivative suit brought against other directors under the Investment Company and Investment Advisers Acts of 1940, 15 U. S. C. § 80a-1 et seq.; 15 U. S. C. § 80b-1 et seq. To decide that question, we must determine the appropriate roles of federal and state law in such a controversy. Respondents, shareholders of Fundamental Investors, Inc., an investment company registered under the Investment Company Act, brought this derivative suit in February 1973 in the District Court for the Southern District of New York. The action was brought against several members of the company’s board of directors and its registered investment adviser, Anchor Corp. The complaint alleged that the defendants had violated their duties under the Investment Company Act (ICA), the Investment Advisers Act (IAA), and the common law in connection with the 1969 purchase by the corporation of $20 million in Penn Central Transportation Co. commercial paper. In response to the suit, Fundamental’s board of directors determined that the five of its members who were neither affiliated with the investment adviser nor defendants in the action would decide what position the company should take in the case. On the basis of outside counsel’s recommendation and their own investigation, the five, acting as a quorum pursuant to the company’s bylaws, concluded that continuation of the litigation was contrary to the best interests of the company and its shareholders and moved the District Court to dismiss the action. The District Court held that under the so-called “business judgment rule,” a quorum of truly disinterested and independent directors has authority to terminate a derivative suit which they in good faith conclude is contrary to the company’s best interests. 404 F. Supp. 1172 (1975). After permitting discovery on the question of the directors’ independence, the District Court entered summary judgment against respondents, finding no evidence that the directors who voted to terminate the suit had acted other than independently and in good faith. 426 F. Supp. 844 (1977). The Court of Appeals for the Second Circuit reversed, 567 F. 2d 1208, 1212 (1978), holding that as a consequence of the ICA, “disinterested directors of an investment company do not have the power to foreclose the continuation of nonfrivolous litigation brought by shareholders against majority directors for breach of their fiduciary duties.” We granted certiorari, 439 U. S. 816 (1978). We reverse. I A fundamental issue in this case is which law — state or federal — governs the power of the corporation’s disinterested directors to terminate this derivative suit. The first step in making that determination is to ascertain which law creates the cause of action alleged by the plaintiffs. Neither the ICA nor the IAA — the plaintiff’s two federal claims — expressly creates a private cause of action for violation of the sections relevant here. However, on the basis of District and Circuit precedent, the courts below assumed that an implied private right of action existed under each Act. Brown v. Bullock, 194 F. Supp. 207, 222-228 (SDNY), aff’d, 294 F. 2d 415 (CA2 1961) (en banc) (ICA); Abrahamson v. Fleschner, 568 F. 2d 862 (CA2 1977) (IAA); Bolger v. Laventhol, Krekstein, Horwath & Horwath, 381 F. Supp. 260 (SDNY 1974) (IAA). The two courts also sanctioned the bringing of the suit in derivative form, apparently assuming that, as we held in J. I. Case Co. v. Borak, 377 U. S. 426, 432 (1964), “[t]o hold that derivative actions are not within the sweep of the [right] would ... be tantamount to a denial of private relief.” As petitioners never disputed the existence of private, derivative causes of action under the Acts, and as in this Court all agree that the question has not been put in issue, Brief for Petitioners 28; Brief for Respondents 15, we shall assume without deciding that respondents have implied, derivative causes of action under the ICA and IAA. Since we proceed on the premise of the existence of a federal cause of action, it is clear that “our decision is not controlled by Erie R. Co. v. Tompkins, 304 U. S. 64,” and state law does not operate of its own force. Sola Electric Co. v. Jefferson Co., 317 U. S. 173, 176 (1942). See Board of Comm’rs v. United States, 308 U. S. 343, 349-350 (1939); Deitrick v. Greaney, 309 U. S. 190, 200 (1940); C. Wright, Federal Courts 284 (3d ed. 1976); Mishkin, The Variousness of “Federal Law”: Competence and Discretion in the Choice of National and State Rules for Decision, 105 U. Pa. L. Rev. 797, 799-800 (1957); Hart, The Relations Between State and Federal Law, 54 Colum. L. Rev. 489, 529 (1954); 2 L. Loss, Securities Regulation 971 (2d ed. 1961). Rather, “[w]hen a federal statute condemns an act as unlawful, the extent and nature of the legal consequences of the condemnation, though left by the statute to judicial determination, are nevertheless federal questions, the answers to which are to be derived from the statute and the federal policy which it has adopted.” Sola Electric Co. v. Jefferson Co., supra, at 176. See Tunstall v. Locomotive Firemen & Enginemen, 323 U. S. 210, 213 (1944); Board of Comm’rs v. United States, supra. Cf. United States v. Kimbell Foods, Inc., 440 U. S. 715, 726-727 (1979); Butner v. United States, 440 U. S. 48 (1979). Legal rules which impact significantly upon the effectuation of federal rights must, therefore, be treated as raising federal questions. See Robertson v. Wegmann, 436 U. S. 584, 588 (1978) (statute of limitations) ; Auto Workers v. Hoosier Corp., 383 U. S. 696, 701 (1966) (same); J. I. Case Co. v. Borak, supra, at 435 (security for expenses statute); Sola Electric Co. v. Jefferson Co., supra, at 176 (rules of estoppel); Deitrick v. Greaney, supra, at 200 (affirmative defense to federal-claim). See generally Friendly, In Praise of Erie — and of the New Federal Common Law, 39 N. Y. U. L. Rev. 383, 408 (1964); Hill, State Procedural Law in Federal Nondiversity Litigation, 69 Harv. L. Rev. 66, 92-93 (1955). Thus, “the overriding federal law applicable here would, where the facts required, control the appropriateness of redress despite the provisions of state corporation law . . . J. I. Case Co. v. Borak, supra, at 434 (emphasis added). II The fact that “the scope of [respondents’] federal right is, of course, a federal question” does not, however, make state law irrelevant. De Sylva v. Ballentine, 351 U. S. 570, 580 (1956). Cf. United States v. Kimbell Foods, Inc., supra, at 727-728. It is true that in certain areas we have held that federal statutes authorize the federal courts to fashion a complete body of federal law. See Textile Workers v. Lincoln Mills, 353 U. S. 448, 451, 456-457 (1957). Corporation law, however, is not such an area. A derivative suit is brought by shareholders to enforce a claim on behalf of the corporation. See Note, The Demand and Standing Requirements in Stockholder Derivative Actions, 44 U. Chi. L. Rev. 168 (1976). This case involves the question whether directors are authorized to determine that certain claims not be pursued on the corporation’s behalf. As we have said in the past, the first place one must look to determine the powers of corporate directors is in the relevant State’s corporation law. See Santa Fe Industries, Inc. v. Green, 430 U. S. 462, 479 (1977); Cort v. Ash, 422 U. S. 66, 84 (1975). “Corporations are creatures of state law,” ibid., and it is state law which is the font of corporate directors’ powers. By contrast, federal law in' this area is largely regulatory and prohibitory in nature — it often limits the exercise of directorial power, but only rarely creates it. Cf. Price v. Gurney, 324 U. S. 100, 107 (1945). In short, in this field congressional legislation is generally enacted against the background of existing state law; Congress has never indicated that the entire corpus of state corporation law is to be replaced simply because a plaintiff’s cause of action is based upon a federal statute. Cort v. Ash, supra; Santa Fe Industries, Inc. v. Green, supra. See United Copper Securities Co. v. Amalgamated Copper Co., 244 U. S. 261, 264 (1917). Cf. United States v. Yazell, 382 U. S. 341, 352-353 (1966) (state family law); De Sylva v. Ballentine, supra, at 580 (same); P. Bator, P. Mishkin, D. Shapiro, & H. Wechsler, The Federal Courts and The Federal System 470-471 (1973 ed.). Federal regulation of investment companies and advisers is not fundamentally different in this respect. Mutual funds, like other corporations, are incorporated pursuant to state, not federal, law. Although the Court of Appeals found it significant that “nothing in . . . the legislation regulating investment companies and their advisers . . . suggests that.. . disinterested directors . . . have the power to terminate litigation brought by mutual fund stockholders . . . ,” 567 F. 2d, at 1210, such silence was to be expected. The ICA does not purport to be the source of authority for managerial power; rather, the Act functions primarily to “impos[e] controls and restrictions on the internal management of investment companies.” United States v. National Assn. of Securities Dealers, 422 U. S. 694, 705 n. 13 (1975) (emphasis added). The ICA and IAA, therefore, do not require that federal law displace state laws governing the powers of directors unless the state laws permit action prohibited by the Acts, or unless “their application would be inconsistent with the federal policy underlying the cause of action . . . Johnson v. Railway Express Agency, 421 U. S. 454, 465 (1975). Cf. Robertson v. Wegmann, supra, at 590; Auto Workers v. Hoosier Corp., supra, at 706-707; Sola Electric Co. v. Jefferson Co., 317 U. S., at 176. Although “[a] state statute cannot be considered ‘inconsistent’ with federal law merely because the statute causes the plaintiff to lose the litigation,” Robertson v. Wegmann, supra, at 593, federal courts must be ever vigilant to insure that application of state law poses “no significant threat to any identifiable federal policy or interest . . . .” Wallis v. Pan American Petroleum Corp., 384 U. S. 63, 68 (1966). See Auto Workers v. Hoosier Corp., supra, at 702. Cf. Brown v. Western R. Co. of Alabama, 338 U. S. 294, 298 (1949). And, of course, this means that “unreasonable,” Wallis v. Pan American Petroleum Corp., supra, at 70, or “specific aberrant or hostile state rules,” United States v. Little Lake Misere Land Co., 412 U. S. 580, 596 (1973), will not be applied. See, e. g., Levitt v. Johnson, 334 F. 2d 815, 819-820 (CA1 1964). The “consistency” test guarantees that “[n]othing that the state can do will be allowed to destroy the federal right,” Board of Comm’rs v. United States, 308 U. S., at 350, and yet relieves federal courts of the necessity to fashion an entire body of federal corporate law out of whole cloth. Ill The foregoing indicates that the threshold inquiry for a federal court in this case should have been to determine whether state law permitted Fundamental’s disinterested directors to terminate respondents’ suit. If so, the next inquiry should have been whether such a state rule was consistent with the policy of the ICA and IAA. Neither the District Court nor the Court of Appeals decided the first question, apparently because neither considered state law particularly significant in determining the authority of the independent directors to terminate the action. And in that circumstance, neither court addressed the question of inconsistency between state and federal law. At least implicitly, however, the Court of Appeals did make a related determination. Its holding that nonfrivolous derivative suits may never be terminated makes manifest its view that no other rule — whether state or federal — would be consistent with the ICA. We disagree. The Court of Appeals correctly noted, 567 F. 2d, at 1210-1211, that Congress was concerned about the potential for abuse inherent in the structure of investment companies. A mutual fund is a pool of assets, consisting primarily of portfolio securities, and belonging to the individual investors holding shares in the fund. Tannenbaum v. Zeller, 552 F. 2d 402, 405 (CA2 1977). Congress was concerned because “[m]utual funds, with rare exception, are not operated by their own employees. Most funds are formed, sold, and managed by external organizations, [called ‘investment advisers,’] that are separately owned and operated. . .. The advisers select the funds’ investments and operate their businesses. . . . “Since a typical fund is organized by its investment adviser which provides it with almost all management services . . . , a mutual fund cannot, as a practical matter sever its relationship with the adviser. Therefore, the forces of arm’s-length bargaining do not work in the mutual fund industry in the same manner as they do in other sectors of the American economy.” S. Rep. No. 91-184, p. 5 (1969). As a consequence, “[t]he relationship between investment advisers and mutual funds is fraught with potential conflicts of interest,” Galfand v. Chestnutt Corp., 545 F. 2d 807, 808 (CA2 1976). See generally S. Rep. No. 91-184, supra, at 5; H. R. Rep. No. 2337, 89th Cong., 2d Sess., 9, 45-46, 64 (1966); H. R. Doc. No. 136, 77th Cong., 1st Sess., 2485-2490, 2569, 2579-2580, 2775 (1942); Hearings before a Subcommittee of the House Committee on Interstate and Foreign Commerce on H. R. 10065, 76th Cong., 3d Sess., 58-59 (1940); Securities and Exchange Commission, Report on Investment Trusts and Investment Companies, pt. 3, pp. 1-49 (1940); 15 U. S. C. § 80a-l (b) (findings and declaration of policy). Yet, while these potential conflicts may justify some restraints upon the unfettered discretion of even disinterested mutual fund directors, particularly in their transactions with the investment adviser, they hardly justify a flat rule that directors may never terminate nonfrivolous derivative actions involving co-directors. In fact, the evidence is overwhelming that Congress did not intend to require any such absolute rule. The cornerstone of the ICA’s effort to control conflicts of interest within mutual funds is the requirement that at least 40% of a fund’s board be composed of independent outside directors. 15 U. S. C. §80a-10(a). As originally enacted, § 10 of the Act required that these 40% not be officers or employees of the company or “affiliated persons” of its adviser. 54 Stat. 806. In 1970, Congress amended the Act to strengthen further the independence of these directors, adding the stricter requirement that the outside directors not be “interested persons.” See 15 U. S. C. §§ 80a-10 (a), 80a-2 (a)(19). To these statútorily disinterested directors, the Act assigns a host of special responsibilities involving supervision of management and financial auditing. They have the duty to review and approve the contracts of the investment adviser and the principal underwriter, 15 U. S. C. § 80a-15 (c); the responsibility to appoint other disinterested directors to fill vacancies resulting from the assignment of the advisory contracts, 15 U. S. C. § 80a-16 (b); and are required to select the accountants who prepare the company’s Securities and Exchange Commission financial filings, 15 U. S. C. § 80a-31 (a). Attention must be paid as well to what Congress did not do. Congress consciously chose to address the conflict-of-interest problem through the Act’s independent-directors section, rather than through more drastic remedies such as complete disaffiliation of the companies from their advisers or compulsory internalization of the management function. See Report of the SEC on the Public Policy Implications of Investment Company Growth, H. R. Rep. No. 2337, 89th Cong., 2d Sess., 147-148 (1966). Congress also decided not to incorporate into the 1940 Act a provision, proposed by the SEC, that would have forced investment companies to seek court approval before settling claims against “insiders” that could be the target of derivative suits. See S. 3580, 76th Cong., 3d Sess., §33 (a) (1940); Wolf v. Barkes, 348 F. 2d 994, 997 n. 4 (CA2 1965). And when Congress did intend to prevent board action from cutting off derivative suits, it said so expressly. Section 36 (b), 84 Stat. 1428, 15 U. S. C. § 80a-35 (b)(2), added to the Act in 1970, performs precisely this function for derivative suits charging breach of fiduciary duty with respect to adviser’s fees. No similar provision exists for derivative suits of the kind involved in this case. Congress’ purpose in structuring the Act as it did is clear. It “was designed to place the unaffiliated directors in the role of 'independent watchdogs,’ ” Tannenbaum v. Zeller, 552 F. 2d, at 406, who would “furnish an independent check upon the management” of investment companies, Hearings on H. R. 10065 before a Subcommittee of the House Committee on Interstate and Foreign Commerce, 76th Cong., 3d Sess., 109 (1940). This “watchdog” control was chosen in preference to the more direct controls on behavior exemplified by the options not adopted. Indeed, when by 1970 it appeared that the “affiliated person” provision of the 1940 Act might not be adequately restraining conflicts of interest, Congress turned not to direct controls, but rather to stiffening the requirement of independence as the way to “remedy the act’s deficiencies.” S. Rep. No. 91-184, pp. 32-33 (1969). Without question, “[t]he function of these provisions with respect to unaffiliated directors '[was] to supply an independent check on management and to provide a means for the representation of shareholder interests in investment company affairs.” Id., at 32. In short, the structure and purpose of the ICA indicate that Congress entrusted to the independent directors of investment companies, exercising the authority granted to them by state law, the primary responsibility for looking after the interests of the funds’ shareholders. There may well be situations in which the independent directors could reasonably believe that the best interests of the shareholders call for a decision not to sue — as, for example, where the costs of litigation to the corporation outweigh any potential recovery. See Note, 47 Ford. L. Rev. 568, 580 (1979); Note, 44 U. Chi. L. Rev., at 196. See, e. g., Tannenbaum v. Zeller, supra, at 418; Cramer v. General Tel. & Electronics Corp., 582 F. 2d 259, 275 (CA3 1978). In such cases, it would certainly be consistent with the Act to allow the independent directors to terminate a suit, even though not frivolous. Indeed, it would have been paradoxical for Congress to have been willing to rely largely upon “watchdogs” to protect shareholder interests and yet, where the “watchdogs” have done precisely that, require that they be totally muzzled. IV We hold today that federal courts should apply state law governing the authority of independent directors to discontinue derivative suits to the extent such law is consistent with the policies of the ICA and IAA. Moreover, we hold that Congress did not require that States, or federal courts, absolutely forbid director termination of all nonfrivolous actions. However, since “[w]e did not grant certiorari to decide [a question of state law],” Butner v. United States, 440 U. S. 48, 51 (1979), and since neither the District Court nor the Court of Appeals decided the point, the case is reversed and remanded for further proceedings consistent with this opinion. Butner v. United States; Wallis v. Pan American Petroleum Corp., 384 U. S., at 72. Reversed and remanded. Mr. Justice Rehnquist took no part in the consideration or decision of this case. § 13 (a) (3), 54 Stat. 811, as amended, 15 U. S. C. § 80a-13 (a) (3), and former § 36, 54 Stat. 841, 15 U. S. C. § 80a-35 (1964 ed.). § 206, 54 Stat. 852, as amended, 15 U. S. C. § 80b-6. The complaint alleged, inter alia, that “Anchor breached its statutory, contractual and common law fiduciary duties by relying exclusively upon the representations of Goldman, Sachs & Co. (a seller of commercial paper), rather than independently investigating the quality and safety of the Penn Central 270-day notes purchased by the Fund. It is further alleged that the defendant directors knew or should have known of Anchor’s failure to meet its responsibility; that they violated their . . . duties as corporate fiduciaries by acquiescing in Anchor’s omissions; that the financial condition of the Penn Central steadily worsened during the period from November 28, 1969 to June 21, 1970, the date that it filed for reorganization; and that during this period of decline all of the defendants failed to investigate and review the financial condition of the Penn Central and the quality and safety of its commercial paper.” 426 F. Supp. 844, 847 (1977). The five were “disinterested” within the meaning of the ICA (see 567 F. 2d 1208, 1209 (CA2 1978)) which provides: “No registered investment company shall have a board of directors more than 60 per centum of the members of which are persons who are interested persons of such registered company.” 15 U. S. C. § 80a-10 (a). The definition of “interested person” is found at 15 U. S. C. § 80a-2 (a) (19). See n. 12, infra. Of the remaining six directors, five were defendants in the Lasker suit, and one was a director of the investment adviser. 404 F. Supp. 1172, 1175 (1975). The question whether a cause of action exists is not a question of jurisdiction, and therefore may be assumed without being decided. Cf. Mt. Healthy City Board of Ed. v. Doyle, 429 U. S. 274, 279 (1977) ; Bell v. Hood, 327 U. S. 678, 682 (1946). Other Courts of Appeals have agreed with the Second Circuit that the ICA and IAA create private causes of action. As to the ICA, see Moses v. Burgin, 445 E. 2d 369, 373 (CA1 1971); Esplin v. Hirschi, 402 F. 2d 94, 103 (CA10 1968). See also Herpich v. Wallace, 430 F. 2d 792, 815 (CA5 1970); Taussig v. Wellington Fund, Inc., 313 F. 2d 472, 476 (CA3 1963). Compare Greater Iowa Corp. v. McLendon, 378 F. 2d 783, 793 (CA8 1967), with Brouh v. Managed Funds, Inc., 286 F. 2d 901 (CA8 1961), vacated as moot, 369 U. S. 424 (1962). As to the IAA, see Lewis v. Transamerica Corp., 575 F. 2d 237 (CA9), cert. granted sub nom. Transamerica Mortgage Advisors, Inc. v. Lewis, 439 U. S. 952 (1978); Wilson v. First Houston Investment Corp., 566 F. 2d 1235 (CA5 1978). This is not a situation where federal policy requires uniformity and, therefore, where the very application of varying state laws would itself be inconsistent with federal interests. In enacting the ICA and IAA, Congress did declare that “the activities of such companies, extending over many States, . . . make difficult, if not impossible, effective State regulation of such companies . . . 15 U. S. C. § 80a-1 (a) (5). But as long as private causes of action are available in federal courts for violation of the federal statutes, this enforcement problem is obviated. The real concern, therefore, is not that state laws be uniform, but rather that the laws applied in suits brought to enforce federal rights meet the standards necessary to insure that the “prohibition of [the] federal statute . . . not be set at naught,” Sola Electric Co. v. Jefferson Co., 317 U. S. 173, 176 (1942). The “consistency” requirement described in text guarantees that state laws failing to meet these standards will be precluded. See 567 F. 2d 1208 (CA2 1978); 404 F. Supp. 1172 (SDNY 1975). The Court of Appeals did not undertake any separate analysis of the policy behind the ICA’s companion statute, the IAA. See also Tannenbaum v. Zeller, 552 F. 2d 402, 405 (CA2 1977); Radmer, Duties of the Directors of Investment Companies, 3 J. Corp. L. 61, 63 (1977); Note, 47 Ford. L. Rev. 568 (1979). See, e. g., § 36 of the ICA, 54 Stat. 841, as amended, 15 U. S. C. § 80a-35, and § 206 of the IAA, 54 Stat. 852, as amended, 15 U. S. C. § 80b-6, imposing minimum standards on the behavior of investment company directors and advisers which presumably apply as much to their decisions regarding litigation as to the other decisions they may be called upon to make. See Santa Fe Industries, Inc. v. Green, 430 U. S. 462, 471 n. 11 (1977) (“Congress intended the Investment Advisers Act to establish federal fiduciary standards for investment advisers”); SEC v. Capital Gains Research Bureau, 375 U. S. 180, 191-192 (1963); Cramer v. General Tel. & Electronics Corp., 582 F. 2d 259, 275 (CA3 1978); Tannenbaum v. Zeller, supra, at 418-419. Under certain circumstances, independent directors must constitute a majority rather than 40% of the board. See 15 U. S. C. § 80a-10 (b). Title 15 U. S. C. §80a-2 (a)(19) defines an “'interested person’ of another person . . . when used with respect to an investment company,” as “(i) any affiliated person of such company, “(ii) any member of the immediate family of any natural person who is an affiliated person of such company, “(iii) any interested person of any investment adviser of or principal underwriter for such company, “(iv) any person or partner or employee of any person who at any time since the beginning of the last two fiscal years of such company has acted as legal counsel for such company, “(v) any broker or dealer registered under the Securities Exchange Act of 1934 or any affiliated person of such a broker or dealer, and “(vi) any natural person whom the Commission by order shall have determined to be an interested person by reason of having had, at any time since the beginning of the last two fiscal years of such company, a material business or professional relationship with such company or with the principal executive officer of such company or with any other investment company having the same investment adviser or principal underwriter or with the principal executive officer of such other investment company.” Title 15 U. S. C. § 80a-2 (a) (2) states that “ ‘[a]ffiliated company’ means a company which is an affiliated person,” and 15 U. S. C. § 80a-2 (a) (3) defines “ ‘affiliated person’ of another person” as “(A) any person directly or indirectly owning, controlling, or holding with power to vote, 5 per centum or more of the outstanding voting securities of such other person; (B) any person 5 per centum or more of whose outstanding voting securities are directly or indirectly owned, controlled, or held with power to vote, by such other person; (C) any person directly or indirectly controlling, controlled by, or under common control with, such other person; (D) any officer, director, partner, copartner, or employee of such other person; (E) if such other person is an investment company, any investment adviser thereof or any member of an advisory board thereof; and (F) if such other person is an unincorporated investment company not having a board of directors, the depositor thereof.” See also § 16 (b) of the Securities Exchange Act of 1934, 15 U. S. C. § 78p (b), which authorizes shareholder suits to recover insider “short swing” profits on behalf of the company notwithstanding the decision of the board of directors not to sue. See n. 12, supra. As an adjunct to its main argument which rested upon the structure of the ICA, the Court of Appeals was also of the view that mutual fund directors can never be truly disinterested in suits involving their co-directors. 567 F. 2d, at 1212. While lack of impartiality may or may not be true as a matter of fact in individual cases, it is not a conclusion of law required by the ICA. Congress surely would not have entrusted such critical functions as approval of advisory contracts and selection of accountants to the statutorily disinterested directors had it shared the Court of Appeals’ view that such directors could never be “disinterested” where their codirectors or investment advisers were concerned. In fact, although it was speaking only of the statutory definition, Congress declared in the second section of the Act that “no person shall be deemed to be an interested person of an investment company solely by reason of . . . his being a member of its board of directors or advisory board . . . .” 15 U. S. C. § 80a-2 (a) (19). See also 15 U. S. C. § 80a-2 (a)(9) (“A natural person shall be presumed not to be a controlled person within the meaning of this subchapter”). As an alternative ground in support of the judgment below, respondents urge that Fed. Rule Civ. Proc. 23.1 prohibits termination of this derivative action. That Rule states that a derivative action “shall not be dismissed or compromised without the approval of the court . . . .” However, as Judge Friendly noted with respect to former Rule 23 (c), those words apply only to voluntary settlements between derivative plaintiffs and defendants, and were intended to prevent plaintiffs from selling out their fellow shareholders. They do not apply where the plaintiffs’ action is involuntarily dismissed by a court, as occurred in this case. Wolf v. Barkes, 348 F. 2d 994, 996-997 (CA2 1965). The same is true of the identically worded Rule 23.1. See C. Wright & A. Miller, Federal Practice and Procedure § 1839, pp. 427, 435, 436 (1972); 3B J. Moore, Federal Practice ¶23.1.24 [2], App. p. 23.1-131 (1978). In this Court, the parties hotly dispute the content of the correct state rule. Compare Brief for Petitioners 36-38 with Brief for Respondents 35-39. 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_r_bus	3	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. Marshall P. SAFIR, Appellant, v. Robert J. BLACKWELL, Maritime Administrator, Maritime Administration, U. S. Department of Commerce, et al., Appellees. No. 237, Docket 72-1753. United States Court of Appeals, Second Circuit. Argued Nov. 27, 1972. Decided Nov. 29, 1972. Marshall P. Safir, pro se. Gilbert S. Fleischer, Atty. in Charge, Admiralty and Shipping Section, Dept, of Justice, New York City (Harlington Wood, Jr., Asst. Atty. Gen., Robert A. Morse, U. S. Atty., of counsel), for appel-lees Robert J. Blackwell, Maritime Administrator, and others. Richard S. Salzman, Washington, D. C. (J. Franklin Fort, Kominers, Fort, Schlefer & Boyer, Washington, D. C., of counsel), for appellee Moore-McCormaek Lines, Inc. Elmer C. Maddy, New York City (Kir-lin, Campbell & Keating, New York City, of counsel), for appellee United States Lines, Inc. James N. Jacobi, Washington, D. C. (Kurrus & Jacobi, Washington, D. C., of counsel), for appellee American Export Lines, Inc. Michael O. Finkelstein, New York City (Barrett, Knapp, Smith, Schapiro & Simon, New York City, Daniel H. Mar-golis, and Bergson, Borkland, Margolis & Adler, Washington, D. C., of counsel), for appellee Prudential-Grace Lines, Inc. Before FRIENDLY, Chief Judge, and WATERMAN and HAYS, Circuit Judges. PER CURIAM: In this case, which is now here for the third time, see Safir v. Gibson, 417 F.2d 972 (2 Cir. 1969); Safir v. Gibson, 432 F.2d 137 (2 Cir.), cert. denied, 400 U.S. 850, 91 S.Ct. 57, 27 L.Ed.2d 88 (1970), plaintiff Safir moved to require the ship operator defendants to pay into escrow moneys expected to become payable to them in consequence of the sale of certain American flag ships authorized by Public Law 92-296, 86 Stat. 140, which became effective May 17, 1972. The motion was based on plaintiff’s fear that the defendants might not be financially able to respond to a direction for the repayment of operating differential subsidies which may be made by the Maritime Administration Maritime Subsidy Board in the proceeding, Docket No. S. 243, instituted as a result of our first decision. The Assistant Secretary of the Board and of the Administration submitted an affidavit indicating'that the Government entertained no doubt of its ability to recover, by set-off or otherwise, any amounts that might ultimately be found to be repayable. Accepting this conclusion, the district court denied the requested relief. The judge's order was well within his discretion; he was not bound to accept plaintiff’s assertions that the recoveries will run vastly beyond the sums recommended by the Chief Hearing Examiner in respect of three of the four ship operator defendants. We share plaintiff’s concern over the time that the Maritime Administration has taken to decide this matter, especially in light of the narrowing of the issues by our 1970 decision. However, we were advised at argument that, at long last, the matter has now been finally submitted, and we expect it to be promptly decided. Plaintiff complains of a statement by the district judge that he would have no interest in any recovery by the Government. This statement was unnecessary to the decision and we have no occasion either to approve or to disapprove it. Affirmed. Question: What is the total number of respondents in the case that fall into the category "private business and its executives"? Answer with a number. Answer:
sc_casesource	028	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. YATES et al. v. UNITED STATES. No. 6. Argued October 8-9, 1956. Decided June 17, 1957. Ben Margolis argued the cause for petitioners in No. 6. With him on the brief were Norman Leonard, Alexander H. Schullman, A. L. Wirin and Leo Branton, Jr. Robert W. Kenny argued the cause for petitioner in No. 7. With him on the brief was Benjamin Dreyfus. Augustin Donovan argued the cause and filed a brief for petitioners in No. 8. Philip R. Monahan argued the cause for the United States. With him on the brief were Solicitor General Rankin, Assistant Attorney General Tompkins and Harold D. Koffsky. Briefs of amici curiae urging reversal were filed by David I. Shapiro, Osmond K. Fraenkel and Fred Okrand, for the American Civil Liberties Union in No. 6, and Thomas D. McBride, for Kuzma et ah, and Telford Taylor, for Hall, in Nos. 6, 7 and 8. Mr. Justice Harlan delivered the opinion of the Court. We brought these cases here to consider certain questions arising under the Smith Act which have not heretofore been passed upon by this Court, and otherwise to review the convictions of these petitioners for conspiracy to violate that Act. Among other things, the convictions are claimed to rest upon an application of the Smith Act which is hostile to the principles upon which its constitutionality was upheld in Dennis v. United States, 341 U. S. 494. These 14 petitioners stand convicted, after a jury trial in the United States District Court for the Southern District of California, upon a single count indictment charging them with conspiring (1) to advocate and teach the duty and necessity of overthrowing the Government of the United States by force and violence, and (2) to organize, as the Communist Party of the United States, a society of persons who so advocate and teach, all with the intent of causing the overthrow of the Government by force and violence as speedily as circumstances would permit. Act of June 28, 1940, §2 (a)(1) and (3), 54 Stat. 670, 671, 18 U. S. C. §§ 371, 2385. The conspiracy is alleged to have originated in 1940 and continued down to the date of the indictment in 1951. The indictment charged that in carrying out the conspiracy the defendants and their co-conspirators would (a) become members and officers of the Communist Party, with knowledge of its unlawful purposes, and assume leadership in carrying out its policies and activities; (b) cause to be organized units of the Party in California and elsewhere; (c) write and publish, in the “Daily Worker” and other Party organs, articles on the proscribed advocacy and teaching; (d) conduct schools for the indoctrination of Party members in such advocacy and teaching, and (e) recruit new Party members, particularly from among persons employed in the key industries of the nation. Twenty-three overt acts in furtherance of the conspiracy were alleged. Upon conviction each of the petitioners was sentenced to five years’ imprisonment and a fine of $10,000. Thé Court of Appeals affirmed. 225 F. 2d 146. We granted certiorari for the reasons already indicated. 350 U. S. 860. In the view we take of this case, it is necessary for us to consider only the following of petitioners' contentions: (1) that the term “organize” as used in the Smith Act was erroneously construed by the two lower courts; (2) that the trial court’s instructions to the jury erroneously excluded from the case the issue of “incitement to action”; (3) that the evidence was so insufficient as to require this Court to direct the acquittal of these petitioners; and (4) that petitioner Schneiderman’s conviction was precluded by this Court’s judgment in Schneiderman v. United States, 320 U. S. 118, under the doctrine of collateral estoppel. For reasons given hereafter, we conclude that these convictions must be reversed and the case remanded to the District Court with instructions to enter judgments of acquittal as to certain of the petitioners, and to grant a new trial as to the rest. I. The Term “Organize.” One object of the conspiracy charged was to violate the third paragraph of 18 U. S. C. § 2385, which provides: “Whoever organizes or helps or attempts to organize any society, group, or assembly of persons who teach, advocate, or encourage the overthrow or destruction of any [govérnment in the United States] by force or violence... [ s] h all be fined not more than $10,000 or imprisoned not more than ten years, or both....” Petitioners claim that “organize” means to “establish,” “found,” or “bring into existence,” and that in this sense the Communist Party was organized by 1945 at the latest. On this basis petitioners contend that this part of the indictment, returned in 1951, was barred by the three-year statute of limitations. The Government, on the other hand, says that “organize” connotes a continuing process which goes on throughout the life of an organization, and that, in the words of the trial court’s instructions to the jury, the term includes such things as “the recruiting of new members and the forming of new units, and the regrouping or expansion of existing clubs, classes and other units of any society, party, group or other organization.” The two courts below accepted the Government’s position. We think, however, that petitioners’ position must prevail, upon principles stated by Chief Justice Marshall more than a century ago in United States v. Wiltberger, 5 Wheat. 76, 95-96, as follows: “The rule that penal laws are to be construed strictly, is perhaps not much less old than construction itself. It is founded on the tenderness of the law for' the rights of individuals; and on the plain principle that the power of punishment is vested in the legislative, not in the judicial department. It is the legislature, not the Court, which is to define a crime, and ordain its punishment. “It is said, that notwithstanding this rule, the intention of the law maker must govern in the construction of penal, as well as other statutes. This is true. But this is not a new independent rule which subverts the old. It is a modification of the ancient maxim, and amounts to this* that though penal laws are to be construed strictly, they are not to be construed so strictly as to defeat the obvious intention of the legislature. The maxim is not to be so applied as to narrow the words of the statute to the exclusion of cases which those words, in their ordinary acceptation, or in that sense in which the legislature has obviously used them, would comprehend. The intention of the legislature is to be collected from the words they employ. Where there is no ambiguity in the words, there is no room for construction. The case must be a strong one indeed, which would justify a Court in departing from the plain meaning of words, especially in a penal act, in search of an intention which the words themselves did not suggest. To determine that a case is within the intention of a statute, its language must authorise us to say so. It would be dangerous, indeed, to carry the principle, that a case which is within the reason or mischief of a statute, is within its provisions, so far as to punish a crime not enumerated in the statute, because it is of equal atrocity, or of kindred character, with those which are enumerated. If this principle has ever been recognized in expounding criminal law, it has been in cases of considerable irritation, which it would be unsafe to consider as precedents forming a general rule for other cases.” The statute does not define what is meant by “organize.” Dictionary definitions are of little help, for, as those offered us sufficiently show, the term is susceptible of both meanings attributed to it by the parties here. The fact that the Communist Party comprises various components and activities, in relation to which some of the ■ petitioners bore the title of “Organizer,” does not advance us towards a solution of the problem. The charge here is that petitioners conspired to organize the Communist Party, and, unless “organize” embraces the continuing concept contended for by the Government, the establishing of new units within the Party and similar activities, following the Party’s initial formation in 1945, have no independent significance or vitality so far as the “organizing” charge is involved. Nor are we here concerned with the quality of petitioners’ activities as such, that is, whether particular activities may properly be categorized as “organizational.” Rather, the issue is whether the term “organize” as used in this statute is limited by temporal concepts. Stated most simply, the problem is to choose between two possible answers to the question: when was the Communist Party “organized”? Petitioners contend that the only natural answer to the question is the formation date — in this case, 1945. The Government would have us answer the question by saying that the Party today is still not completely “organized”; that “organizing” is a continuing process that does not end until the entity is dissolved. The legislative history of the Smith Act is no more revealing as to what Congress meant by “organize” than is the statute itself. The Government urges that “organize” should be given a broad meaning since acceptance of the term in its narrow sense would require attributing to Congress the intent that this provision of the statute should not apply to the Communist Party as it then existed. The argument is that since the Communist Party as it then existed had been born in 1919 and the Smith Act was not passed until 1940, the use of “organize” in its narrow sense would have meant that these provisions of the statute would never have reached the act of organizing the Communist Party, except for the fortuitous rebirth of the Party in 1945 — an occurrence which, of course, could not have been foreseen in 1940. This, says the Government, could hardly have been the congressional purpose since the Smith Act as a whole was particularly aimed at the Communist Party, and its “organizing” provisions were especially directed at the leaders of the movement. We find this argument unpersuasive. While the legislative history of the Smith Act does show that concern about communism was a strong factor leading to this legislation, it also reveals that the statute, which was patterned on state anti-sedition laws directed not against Communists but against anarchists and syndicalists, was aimed equally at all groups falling within its scope. More important, there is no evidence whatever to support the thesis that the organizing provision of the statute was written with particular reference to the Communist Party. Indeed, the congressional hearings indicate that it was the “advocating and teaching” provision of the Act, rather than the “organizing” provision, which was especially thought to reach Communist activities. Nor do there appear to be any other reasons for ascribing to “organize” the Government’s broad interpretation. While it is understandable that Congress should have wished to supplement the general provisions of the Smith Act by a special provision directed at the activities of those responsible for creating a new organization of the proscribed type, such as was the situation involved in the Dennis case, we find nothing which suggests that the “organizing” provision was intended to reach beyond this, that is, to embrace the activities of those concerned with carrying on the affairs of an already existing organization. Such activities were already amply covered by other provisions of the Act, such as the “membership” clause, and the basic prohibition of “advocacy” in conjunction with the conspiracy provision, and there is thus no need to stretch the “organizing” provision to fill any gaps in the statute. Moreover, it is difficult to find any considerations, comparable to those relating to persons responsible for creating a new organization, which would have led the Congress to single out for special treatment those persons occupying so-called organizational positions in an existing organization, especially when this same section of the statute proscribes membership in such an organization without drawing any distinction between those holding executive office and others. On the other hand, we also find unpersuasive petitioners’ argument as to the intent of Congress. In support of the narrower meaning of “organize,” they argue that the Smith Act was patterned after the California Criminal Syndicalism Act; that the California courts have consistently taken “organize” in that Act in its narrow sense; and that under such cases as Willis v. Eastern Trust & Banking Co., 169 U. S. 295, 304, 309, and Joines v. Patterson, 274 U. S. 544, 549, it should be presumed that Congress in adopting the wording of the California Act intended “organize” to have the same meaning as that given it by the California courts. As the hearings on the Smith Act show, however, its particular prototype was the New York Criminal Anarchy Act, not the California statute, and the “organizing” provisions of the New York Act have never been construed by any court. Moreover, to the extent that the language of the California statute, which itself was patterned on the earlier New York legislation, might be significant, we think that little weight can be given to these California decisions. The “general rule that adoption of the wording of a statute from another legislative jurisdiction carries with it the previous judicial interpretations of the wording... is a presumption of legislative intention... which varies in strength with the similarity of the language, the established character of the decisions in the jurisdiction from which the language was adopted and the presence or lack of other indicia of intention.” Carolene Products Co. v. United States, 323 U. S. 18, 26. Here, the three California cases relied on by petitioners were all decisions of lower courts, and, in the absence of anything in the legislative history indicating that they were called to its attention, we should not assume that Congress was aware of them. We are thus left to determine for ourselves the meaning of this provision of the Smith Act, without any revealing guides as to the intent of Congress. In these circumstances we should follow the familiar rule that criminal statutes are to be strictly construed and give to “organize” its narrow meaning, that is, that the word refers only to acts entering into the creation of a new organization, and not to acts thereafter performed in carrying on its activities, even though such acts may loosely be termed “organizational.” See United States v. Wiltberger, supra; United States v. Lacker, 134 U. S. 624, 628; United States v. Gradwell, 243 U. S. 476, 485; Fasulo v. United States, 272 U. S. 620, 628. Such indeed is the normal usage of the word “organize,” and until the decisions below in this case the federal trial courts in which the question had arisen uniformly gave it that meaning. See United States v. Flynn, unreported (D. C. S. D. N. Y.), No. C. 137-37, aff’d, 216 F. 2d 354, 358; United States v. Mesarosh, 116 F. Supp. 345, aff’d, 223 F. 2d 449, 465 (dissenting opinion of Hastie, J.); see also United States v. Dennis, unreported (D. C. S. D. N. Y.), No. C. 128-87, aff’d, 183 F. 2d 201, 341 U. S. 494. We too think this statute should be read “according to the natural and obvious import of the language, without resorting to subtle and forced construction for the purpose of either limiting or extending its operation.” United States v. Temple, 105 U. S. 97, 99. The Government contends that even if the trial court was mistaken in its construction of the statute, the error was harmless because the conspiracy charged embraced both “advocacy” of violent overthrow and “organizing” the Communist Party, and the jury was instructed that in order to convict it must find a conspiracy extending to both objectives. Hence, the argument is, the jury must in any event be taken to have found petitioners guilty of conspiring to advocate, and the convictions are supportable on that basis alone. We cannot accept this proposition for a number of reasons. The portions of the trial court’s instructions relied on by the Government are not sufficiently clear or specific to warrant our drawing the inference that the jury understood it must find an agreement extending to both “advocacy” and “organizing” in order to convict. Further, in order to convict, the jury was required, as the court charged, to find an overt act which was “knowingly done in furtherance of an object or purpose of the conspiracy charged in the indictment,” and we have no way of knowing whether the overt act found by the jury was one which it believed to be in furtherance of the “advocacy” rather than the “organizing” objective of the alleged conspiracy. The character of most of the overt acts alleged associates them as readily with “organizing” as with “advocacy.” In these circumstances we think the proper rule to be applied is that which requires a verdict to be set aside in cases where the verdict is supportable on one ground, but not on another, and it is impossible to tell which ground the jury selected. Stromberg v. California, 283 U. S. 359, 367-368; Williams v. North Carolina, 317 U. S. 287, 291-292; Cramer v. United States, 325 U. S. 1, 36, n. 45. We conclude, therefore, that since the Communist Party came into being in 1945, and the indictment was not returned until 1951, the three-year statute of limitations had run on the “organizing” charge, and required the withdrawal of that part of the indictment from the jury’s consideration. Samuel v. United States, 169 F. 2d 787, 798. See also Haupt v. United States, 330 U. S. 631, 641, n. 1; Stromberg v. California, supra, at 368. II. Instructions to the Jury. Petitioners contend that the instructions to the jury were fatally defective in that the trial court refused to charge that, in order to convict, the jury must find that the advocacy which the defendants conspired to promote was of a kind calculated to “incite” persons to action for the forcible overthrow of the Government. It is argued that advocacy of forcible overthrow as mere abstract doctrine is within the free speech protection of the First Amendment; that the Smith Act, consistently with that constitutional provision, must be taken as proscribing only the sort of advocacy which incites to illegal action; and that the trial court's charge, by permitting conviction for mere advocacy, unrelated to its tendency to produce forcible action, resulted in an unconstitutional application of the Smith Act. The Government, which at the trial also requested the court to charge in terms of “incitement,” now takes the position, however, that the true constitutional dividing line is not between inciting and abstract advocacy of forcible overthrow, but rather between advocacy as such, irrespective of its inciting qualities, and the mere discussion or exposition of violent overthrow as an abstract theory. We print in the margin the pertinent parts of the trial court's instructions. After telling the jury that it could not convict the defendants for holding or expressing mere opinions, beliefs, or predictions relating to violent overthrow, the trial court defined the content of the proscribed advocacy or teaching in the following terms, which are crucial here: “Any advocacy or teaching which does not include the urging of force and violence as the means of overthrowing and destroying the Government of the United States is not within the issue of the indictment here and can constitute no basis for any finding against the defendants. “The kind of advocacy and teaching which is charged and upon which your verdict must be reached is not merely a desirability but a necessity that the Government of the United States be overthrown and destroyed by force and violence and not merely a propriety but a duty to overthrow and destroy the Government of the United States by force and violence.” There can be no doubt from the record that in so instructing the jury the court regarded as immaterial, and intended to withdraw from the jury’s consideration, any issue as to the character of the advocacy in terms of its capacity to stir listeners to forcible action. Both the petitioners and the Government submitted proposed instructions which would have required the jury to find that the proscribed advocacy was not of a mere abstract doctrine of forcible overthrow, but of action to that end, by the use of language reasonably and ordinarily calculated to incite persons to such action. The trial court rejected these proposed instructions on the ground that any necessity for giving them which may have existed at the time the Dennis ease was tried was removed by this Court’s subsequent decision in that case. The court made it clear in colloquy with counsel that in its view the illegal advocacy was made out simply by showing that what was said dealt with forcible overthrow and that it was uttered with a specific intent to accomplish that purpose, insisting that all such advocacy was punishable “whether it is language of incitement or not.” The Court of Appeals affirmed on a different theory, as we shall see later on. We are thus faced with the question whether the Smith Act prohibits advocacy and teaching of forcible overthrow as an abstract principle, divorced from any effort to instigate action to that end, so long as such advocacy or teaching is engaged in with evil intent. We hold that it does not. The distinction between advocacy of abstract doctrine and advocacy directed at promoting unlawful action is one that has been consistently recognized in the opinions of this Court, beginning with Fox v. Washington, 236 U. S. 273, and Schenck v. United States, 249 U. S. 47. This distinction was heavily underscored in Gitlow v. New York, 268 U. S. 652, in which the statute involved was nearly identical with the one now before us, and where the Court, despite the narrow view there taken of the First Amendment, said: “The statute does not penalize the utterance or publication of abstract ‘doctrine’ or academic discussion having no quality of incitement to any concrete action.... It is not the abstract ‘doctrine’ of overthrowing organized government by unlawful means which is denounced by the statute, but the advocacy of action for the accomplishment of that purpose.... This [Manifesto]... is [in] the language of direct incitement.... That the jury were warranted in finding that the Manifesto advocated not merely the abstract doctrine of overthrowing organized government by force, violence and unlawful means, but action to that end, is clear.... That utterances inciting to the overthrow of organized government by unlawful means, present a sufficient danger of substantive evil to bring their punishment within the range of legislative discretion, is clear.” Id., at 664-669. We need not, however, decide the issue before us in terms of constitutional compulsion, for our first duty is to construe this statute. In doing so we should not assume that Congress chose to disregard a constitutional danger zone so clearly marked, or that it used the words “advocate” and “teach” in their ordinary dictionary meanings when they had already been construed as terms of art carrying a special and limited connotation. See Willis v. Eastern Trust & Banking Co., supra; Joines v. Patterson, supra; James v. Appel, 192 U. S. 129, 135. The Gitlow case and the New York Criminal Anarchy Act there involved, which furnished the prototype for the Smith Act, were both known and adverted to by Congress in the course of the legislative proceedings. Cf. Carolene Products Co. v. United States, supra. The legislative history of the Smith Act and related bills shows beyond all question that Congress was aware of the distinction between the advocacy or teaching of abstract doctrine and the advocacy or teaching of action, and that it did not intend to disregard it. The statute was aimed at the advocacy and teaching of concrete action for the forcible overthrow of the Government, and not of principles divorced from action. The Government’s reliance on this Court’s decision in Dennis is misplaced. The jury instructions which were refused here were given there, and were referred to by this Court as requiring “the jury to find the facts essential to establish the substantive crime.” 341 U. S., at 512 (emphasis added). It is true that at one point in the late Chief Justice’s opinion it is stated that the Smith Act “is directed at advocacy, not discussion,” id., at 502, but it is clear that the reference was to advocacy of action, not ideas, for in the very next sentence the opinion emphasizes that the jury was properly instructed that there could be no conviction for “advocacy in the realm of ideas.” The two concurring opinions in that case likewise emphasize the distinction with which we are concerned. Id., at 518, 534, 536, 545, 546, 547, 571, 572. In failing to distinguish between advocacy of forcible overthrow as an abstract doctrine and advocacy of action to that end, the District Court appears to have been led astray by the holding in Dennis that advocacy of violent action to be taken at some future time was enough. It seems to have considered that, since “inciting” speech is usually thought of as something calculated to induce immediate action, and since Dennis held advocacy of action for future overthrow sufficient, this meant that advocacy, irrespective of its tendency to generate action, is punishable, provided only that it is uttered with a specific intent to accomplish overthrow. In other words, the District Court apparently thought that Dennis obliterated the traditional dividing line between advocacy of abstract doctrine and advocacy of action. This misconceives the situation confronting the Court in Dennis and what was held there. Although the jury’s verdict, interpreted in light of the trial court’s instructions, did not justify the conclusion that the defendants’ advocacy was directed at, or created any danger of, immediate overthrow, it did establish that the advocacy was aimed at building up a seditious group and maintaining it in readiness for action at a propitious time. In such circumstances, said Chief Justice Vinson, the Government need not hold its hand “until the putsch is about to be executed, the plans have been laid and the signal is awaited. If Government is aware that a group aiming at its overthrow is attempting to indoctrinate its members and 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. 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songer_respond2_3_2	I	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the second listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant. PORT NORRIS EXPRESS CO., INC., Petitioner, v. INTERSTATE COMMERCE COMMISSION and United States of America, Respondents, Dennis Trucking Company, Inc., Intervenor. No. 81-2884. United States Court of Appeals, Third Circuit. Argued July 23, 1982. Decided Sept. 8, 1982. William P. Jackson, Jr. (argued), David C. Reeves, Arlington, Va., for petitioner; Jackson & Jessup, P. C., Arlington, Va., of counsel. John Broadley, Gen. Counsel, Ellen D. Hanson, Associate Gen. Counsel (argued), Washington, D. C., for I. C. C. Before ADAMS and HIGGINBOTHAM, Circuit Judges, and TEITELBAUM, District Judge. Honorable Hubert I. Teitelbaum, United States District Court for the Western District of Pennsylvania, sitting by designation. OPINION OF THE COURT ADAMS, Circuit Judge. This case is one of several brought in this Court by Port Norris Express Company, Inc. (Port Norris), challenging what it claims to be excessively broad authorizations granted to competing carriers by the Interstate Commerce Commission (ICC). In three previous cases, No. 81-2589, No. 81-2640, and No. 81-2641, all entitled Port Norris Express Co., Inc. v. Interstate Commerce Commission, the ICC did not defend its grants of authority but instead asked this Court to remand in light of American Trucking Associations, Inc. v. ICC, 659 F.2d 452 (5th Cir. 1981) (ATA I). ATA I, discussed infra pp. 806-808, was a general challenge by trade associations, a union, and several trucking firms to ICC rules and policies implementing the Motor Carrier Act of 1980. These rules and policies, in effect when the various applications challenged by Port Norris were made, were in large part invalidated by ATA I because they required applicants to request and receive wider authority than could be justified under the statute. Although in the present case the ICC has chosen to defend its grant of authority, we conclude that this grant — like those involved in the previous Port Norris cases — requires reconsideration in light of ATA I. I On February 7, 1981, Dennis Trucking Company, Inc. (Dennis) filed an application with the ICC pursuant to 49 U.S.C. § 10922(b). The application sought to expand the authorization that the company previously held, so that it would be able to transport “general commodities” (except for Class A and B explosives) in a region fully encompassing twelve states and the District of Columbia. Authority to transport “general commodities” includes among other things the right to transport both “bulk” and “household goods” unless these two highly specialized types of service are specifically excepted from the grant. Commodities carried in bulk are poured or placed in the vehicle without regard to order and without packaging. See Steere Tank Lines, Inc. v. ICC, 666 F.2d 255, 257 n.3 (5th Cir. 1982). Dennis had not previously carried either household goods or bulk commodities, and its territorial range had been much narrower than that sought in the application. Dennis’ application was supported by statements of thirty-five shippers. While some of these shippers do ship commodities susceptible of being transported in bulk (see Addendum to Respondents’ Brief at 27-29), none specifically stated that it needed Dennis to transport any commodities in bulk. Port Norris, a carrier specializing in bulk transportation, filed a timely protest to Dennis’ application, urging that there was insufficient evidence of public need to justify including bulk commodities in Dennis’ authorization. A protest by a group of household goods carriers challenged the sufficiency of the evidence to support a finding either that Dennis was fit, willing, and able to transport household goods, or that Dennis had shown public need for its services as a household goods carrier. On June 26, 1981, ICC Review Board No. 2 granted the entire authority for which Dennis had applied. Port Norris and the group of household goods carriers filed an administrative appeal. ICC Appellate Division No. 1, consisting of three Commissioners (one of whom did not participate in this case), affirmed the Review Board on September 10, 1981, without issuing an opinion. The ICC issued a certificate to Dennis on October 21, 1981. Port Norris petitioned this Court on November 16, 1981 to review and set aside the decision of the ICC with respect to Dennis’ bulk authority. Although there is some ambiguity in Port Norris’ briefs, counsel made clear at oral argument that Port Norris does not challenge Dennis’ authorization to transport household goods. In as much as the household goods carriers did not seek review of the Appellate Division’s decision, we do not consider the propriety of the grant of household goods authority to Dennis. Dennis has filed a brief as an intervenor in support of the ICC. Respondent United States of America has declined to oppose or support the ICC’s decision in the present case. II It is undisputed that the Motor Carrier Act of 1980, Pub.L.No.96-296, 94 Stat. 793 (1980), which is the source of 49 U.S.C. § 10922(b), was designed to ease carrier entry into the trucking industry. See Gamble v. ICC, 636 F.2d 1101, 1103 (5th Cir. 1981): “The principal goals of the legislation... are to promote greater competition by allowing easier carrier entry, to simplify and expedite the certification process, and to lessen restrictions on motor carrier operations.” Indeed, the Act itself states that it is “part of the continuing effort by Congress to reduce unnecessary regulation by the Federal Government,” and that “historically the existing regulatory structure has tended in certain circumstances to inhibit market entry, carrier growth, maximum utilization of equipment and energy resources, and opportunities for minorities and others to enter the trucking industry.” Motor Carrier Act of 1980, §§ 2 & 3, 94 Stat. at 793 (1980). The Act, however, plainly did not deregulate motor carrier entry completely. If the ICC is to grant authority to a party such as Dennis, then under section 10922(b)(1)(A) it must find that Dennis is “fit, willing, and able” to perform the authorized service; further, under section 10922(b)(1)(B), it must find that there is a “public demand or need” for the service. The legislative history of these provisions helps to clarify the balance Congress was attempting to strike between easing entry on the one hand and retaining regulation on the other: Paragraph (1) of the new section 10922(b) sets forth the entry standards to be used by the Commission in determining whether to issue a certificate authorizing operation as a motor common carrier of property. It retains the traditional test that all applicants must be fit, willing, and able. However, it revises the public convenience and necessity requirement. Specifically, it reduces the burden of proof on persons supporting the application. Persons supporting the application will be required to come forward with some evidence of a, public need or demand for the service. Under this standard, proponents of the application must show that the service they propose would serve a useful public purpose, responsive to a public demand or need. For example, this demonstration could be made by public officials, shippers, receivers, trade associations, civic associations, consumers, and employee groups, as well as by the applicant itself. The normal way to establish this has been for applicants to submit evidence of some of those who would use the service proposed. The Committee thinks that this is still the most effective evidence, for it provides the Commission with the information it needs to frame a grant of authority and provides a factual framework for dealing with the application and the interests of the parties on both sides. However, the Committee does not intend to restrict the Commission in which factors it can consider in determining whether the proposed service is responsive to a public demand or need. These factors include the following: a need or demand for new services, innovative quality or price options, increased competition, greater fuel efficiency, improved service for small communities, improved opportunities for minorities, and any other benefits that would serve a useful public purpose. This is consistent with the Commission’s consideration of the National Transportation Policy, including any of the applicable factors listed in section 10101(a)(7)(A) through (H). Where an application is uncontested, the Commission will be concerned with the fitness of an applicant and whether the applicant has met his prima facie showing of public need. H.R.Rep.No.96-1069, 96th Cong., 2d Sess. 14-15 reprinted in 1980 U.S.Code Cong. & Ad.News 2283, 2296-97. Port Norris argues that despite the statement in the House Report that “[pjersons supporting the application will be required to come forward with some evidence of a public need or demand for the service,” the Act requires that “substantial evidence” be proffered. Reply Brief at 16-18. Because we find that there is not even “some evidence,” we see no need here to resolve the issue. With respect to the “fit, willing, and able” criterion, the ICC seems not to dispute that there must be “substantial evidence” of Dennis’ qualifications to provide transportation in bulk. And it appears to concede that the standard of review this Court must utilize is that the agency’s decision must be set aside if “unsupported by substantial evidence,” 5 U.S.C. § 706(2)(E). Respondent’s Brief at 13. Substantial evidence has been defined as: ... “more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consolidated Edison Co. v. Labor Board, 305 U.S. 197, 229 [59 S.Ct. 206, 216, 83 L.Ed. 126]. Accordingly, it “must do more than create a suspicion of the existence of the fact to be established.... it must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury.” Labor Board v. Columbian Enameling & Stamping Co., 306 U.S. 292, 300 [59 S.Ct. 501, 505, 83 L.Ed. 660], Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 71 S.Ct. 456, 459, 95 L.Ed. 456 (1951). See also, e.g., Consolo v. Federal Maritime Commission, 383 U.S. 607, 620, 86 S.Ct. 1018, 1026, 16 L.Ed.2d 131 (1966). Under ICC “guidelines” in effect when Dennis made its application (the so-called “New Certificate Statement,” Ex Parte No. 55 (Sub-No. 43A), 45 Fed.Reg. 86,798 (1980)), Dennis had little choice but to apply for bulk authority whether or not it was “fit, willing, and able” to transport in bulk and whether or not there was a “public demand or need” for its services as a bulk carrier. And under these same guidelines the ICC is likely to have granted such authority regardless of whether the two statutory requirements had been met. ATA I, supra, found that these “guidelines” insofar as they pertain here, contravened the statute. According to ATA I, the so-called guidelines were in fact mandatory rules enforced by threats of delay and of expensive litigation. The Court concluded: In short, in its announcement in the New Certificates Statement, the Commission has prescribed the use of its list of certain commodity descriptions, “discouraged” the use of any deviations from the list, and required justification for proposing a deviation from the prescribed list. The Commission states that carriers may seek to justify departure from its standards. This imposes the same in terrorem constraint that the Commission found to have been the past practice but now condemns: the fear of lengthy and expensive litigation. 659 F.2d at 471-472, footnotes other than 99 omitted. Addressing himself specifically to the issue of bulk service, Judge Alvin Rubin wrote for the court: The New Certificates Statement states that the Commission’s policy is to “disallow all restrictions except those implicitly or explicitly acceptable in the Act,” including elimination of bulk services restrictions from grants of general commodities authority. The Commission recognized that “[wjhile it is true that every carrier does not operate every type of equipment all of the time,” it still maintained that “nothing is gained by limiting authorities merely because the applicant does not already have the special equipment.” Apparently, the Commission was motivated by a desire to achieve “overall transportation economies and efficiencies... by encouraging competition.” Here,... the Commission has exceeded its statutory mandate by granting authority to carriers who cannot demonstrate that they are “fit, willing, and able to provide the transportation to be authorized by the certificate.” Bulk service requires special equipment, such as tank trucks, that many carriers do not have. Moreover, as pointed out by opponents to the Commission’s statement, most carriers are not fit to provide bulk service because they will not have the proper cleaning facilities for tank trucks, and in the case of hazardous bulk materials (other than class A and B explosives), will not know the appropriate safety regulations for handling bulk items, or have satisfied the special insurance limits pertaining to hazardous materials. Id. at 472-473, footnotes omitted. Ill In this appeal, the ICC does not question ATA I; rather the ICC attempts— unsuccessfully we believe — to distinguish it: Respondents submit that the ATA requirements have been met here. Petitioner’s arguments to the contrary presume that, to receive bulk authority, an applicant must already be outfitted for bulk operations (even if it does not currently perform such service) and must present shippers who stand ready immediately to tender shipments in bulk. Respondent’s Brief at 15. In an omitted footnote the ICC “emphasize[s] that [it is] not here advocating bulk authority absent a showing of need for or fitness to conduct such service.” But it would appear that the ICC has failed to appreciate the true basis of the case against it. The point is not that Dennis must be fully outfitted at the time it applies or that shippers must be immediately ready to tender shipments in bulk to Dennis. The important points in this case appear to be these: (A) Whether or not there was sufficient evidence under Section 10922(b), the Administrative Procedure Act (APA) imposes a duty on the ICC to articulate the factual bases for its decision; the ICC may not simply rely on the policy, struck down in ATA I, of routinely granting bulk authority without regard to the facts of the proceeding. (B) Quite apart from Dennis’ lack of equipment, the evidence does not support a finding that Dennis was willing to provide bulk service. (C) Since any finding that Dennis is fit to transport in bulk depends on a finding that it is willing to acquire the necessary equipment, unwillingness to acquire necessary equipment here implies unfitness. (D) When the only evidence of public demand or need for bulk service is the statements of supporting shippers, the shippers must at least make clear that they consider that they have a need for bulk service from Dennis. We discuss each of these points in turn. A In Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 284, 95 S.Ct. 438, 441, 42 L.Ed.2d 447 (1974), there seemed “to be agreement that the findings and conclusions of the Commission [were] supported by substantial evidence.” But this did not resolve the question whether the ICC’s action was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” 5 U.S.C. § 706(2)(A), since the “arbitrary and capricious” standard of section 706(2)(A) is distinct from the “substantial evidence” standard of Section 706(2)(E). Both standards are of.course part of the APA. Bowman Transportation summarized the law as follows: Under the “arbitrary and capricious” standard the scope of review is a narrow one. A reviewing court must “consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.... Although, this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency.” Citizens to Preserve Overton Park v. Volpe, [401 U.S. 402, 416, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1970)]. The agency must articulate a “rational connection between the facts found and the choice made.” Burlington Truck Lines v. United States, 371 U.S. 156, 168 [83 S.Ct. 239, 245, 9 L.Ed.2d 207] (1962). While we may not supply a reasoned basis for the agency’s action that the agency itself has not given, SEC v. Chenery Corp., 332 U.S. 194, 196 [67 S.Ct. 1575, 1577, 91 L.Ed. 1995] (1947), we will uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned. Colorado Interstate Gas Co. v. FPC, 324 U.S. 581, 595 [65 S.Ct. 829, 836, 89 L.Ed. 1206] (1945). Id. 419 U.S. at 285-286, 95 S.Ct. at 441-42. The “reasoned basis for the agency’s action” must be provided by the agency in the administrative proceedings! We “may not accept appellate counsel’s post hoc rationalizations for agency action.” Burlington Truck Lines v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 245, 9 L.Ed.2d 207 (1962). As Argo-Collier Truck Lines Corp. v. United States, 611 F.2d 149, 152 (6th Cir. 1979), explains: It is essential to the decisionmaking process that the ICC articulate clearly its findings on the factual issues which form the basis for its decisions. Without such findings, a reviewing court is unable to perform its function of ascertaining that the ultimate conclusions are derived from the record before the agency and not the result of discretion exercised in an arbitrary and capricious manner. Trans-American Van Service, Inc. v. United States, 421 F.Supp. 308, 319 (N.D.Tex.1976). Since the Appellate Division, in dismissing appeals from the Review Board’s decision, did not issue an opinion, we consider only the opinion of the Review Board. The ICC’s brief does not so much defend the Review Board opinion as blame Port Norris for the Review Board’s inadequacies. The brief appears to make no claim that the Review Board ever addressed the specific issue of Dennis’ fitness or willingness to transport in bulk, or of the public demand or need for Dennis’ services as a bulk carrier. Instead the ICC points out that Port Norris’ initial protest was almost exclusively focused on the alleged competitive harm that Port Norris would suffer if Dennis’ application were granted. But the ICC fails to explain why Port Norris’ decision to base its protest primarily on the issue of competitive harm should excuse the ICC from making findings as to Dennis’ fitness and as to public demand or need for the services proposed by Dennis. Legislative history would suggest that even “[w]here an application is uncontested, the Commission will be concerned with the fitness of the applicant and whether the applicant has met his prima facie showing of public need,” H.R.Rep.No.96-1069, supra, at 15, U.S.Code Cong. & Admin.News at p. 2297. Section 10922(b)(3) further confirms the ICC’s obligation to make an individual determination of public convenience and necessity even in uncontested cases. Moreover, Port Norris’ protest did state that it thought there was insufficient evidence of public need for additional bulk service (e.g., Appendix at 204, 208) and even reminded the ICC of its duty to make factual findings of public convenience and necessity and not to rely solely on general policies (Appendix at 207). In its administrative appeal, Port Norris challenged Dennis’ willingness if not its fitness (Appendix at 319), although the Appellate Division did not respond. But the important point is that, regardless of the issues to which Port Norris called attention, the Review Board was bound to “articulate a ‘rational connection between the facts found and the choice made,’ ” Bowman Transportation, supra, 419 U.S. at 285, 95 S.Ct. at 441. The Review Board completely neglected to make any findings with respect to bulk service. It failed even to mention that it was granting bulk authority, although of course the “general” authorization it granted did include bulk. This treatment of bulk authority is certainly understandable in view of the then-existing ICC policy, but it strongly suggests that the Review Board was basing its decision solely on ICC policy and not on the facts of the case. Port Norris can hardly be blamed for the Review Board’s failure to mention specifically transportation in bulk, inasmuch as Port Norris’ protest, repeatedly mentioned its concern over the possible inclusion of bulk authority within the grant to Dennis. Even if there were no problems with the sufficiency of the evidence, we would be required to remand on the ground that the ICC’s action, because its basis was unexplained, was arbitrary and capricious. Insofar as we can discern a basis for the decision, that basis seems to be the improper ICC policy of granting bulk authority without regard to whether the statutory requirements have been met. B Perhaps the ICC’s failure at the administrative level to articulate the basis for finding that Dennis was willing to transport in bulk would not in and of itself be arbitrary and capricious. This is so because a reviewing court might in some circumstances be entitled to assume that the ICC was simply relying on the fact that the applicant requested bulk authority as evidence of the appellant’s willingness. But whether or not the ICC’s failure to discuss any evidence of willingness was arbitrary and capricious, the record in this case cannot support a finding that Dennis was willing to carry commodities in bulk. Dennis’ own “Rebuttal Argument” to the administrative protest of Port Norris and the household goods carriers is quite damaging to the ICC’s cause: We recognize that none of the shippers supporting the application expressly mention a need for the transportation of commodities in bulk or for the provision of household goods transportation service. While Dennis has no present intent to become involved in the provision of household goods transportation services or in the transportation of commodities in bulk, the scheme of regulation now adhered to by the Commission, pursuant to the 1980 Act, suggests that Dennis not be foreclosed, by operating authority restrictions from engaging in either type of service. Although Dennis will not seek reconsideration of a grant restricted against the transportation of commodities in bulk and household goods, if the Commission finds that the application should be so restricted, Dennis, while recognizing the dearth of support specifically seeking such service, requests the issuance of a Certificate unencumbered by either such restriction. Appendix at 305-306. Dennis repeated this passage word for word in replying to the administrative appeal of the household goods carriers (Appendix at 327) and again in replying to the administrative appeal of Port Norris (Appendix at 334). Attempts by the ICC to explain away this passage are unsuccessful. The ICC reads Dennis’ lack of “present intent” to transport in bulk as an expectation that bulk shipments would not “be tendered to it immediately.” Respondent’s Brief at 19 and 21 n.21. But there is a substantial difference between lacking a present intent to transport in bulk and having an expectation that no bulk shipments would be tendered immediately. One can expect that others will immediately request a service from one, and yet have no intent to provide it. Dennis’ language cannot support an inference that Dennis ever intends to provide bulk service. The ICC and Dennis in their briefs stress that Dennis asked not to be foreclosed from carrying in bulk. But what the passage quoted above actually says is not that Dennis wants not to be foreclosed but that the ICC’s scheme of regulation suggested that Dennis not be foreclosed. Dennis’ language indicates that what may well have occurred here is precisely what ATA I condemns: an applicant requesting and receiving authority not because it desires the authority but because it feels compelled to do so by ICC policy. In addition, the ICC argues that Dennis’ statement that it would not appeal a grant of restricted authority is explicable as reflecting a desire on Dennis’ part to avoid the delay and expense of protracted litigation. But while failure actually to take an appeal might reflect such a desire, it is difficult to see how stating in advance of decision that it would accept an adverse judgment could have saved Dennis any time or money. Dennis’ statement that it would not appeal therefore may appropriately be construed as indicating a lack of interest in obtaining the full authority requested. Similarly, if Dennis indeed desired bulk authority, it is anomalous that it would call attention to the weakness of its own case. Yet twice in the quoted passage Dennis refers to the paucity of specific shipper support for bulk authority and makes no attempt to balance this admission with a statement to the effect that shipper support is nonetheless sufficient. In another paragraph of its “Rebuttal Argument,” Dennis expresses its view that the “principal thrust” of its application is not the request for household goods and bulk transportation authority, but the request to expand territorially. Again, Dennis sought to stress that it had little interest in bulk authority, and again this tends to undermine any inference of willingness. Dennis’ original application also undercuts the ICC’s supposed finding of willingness. Dennis did seek “general authority,” and did not specifically ask the ICC to except bulk authority from this. But the ICC and Dennis point to no language at all in the application expressing an interest in bulk authority. The ICC can do no more than cite several expressions of Dennis’ willingness (and ability) to provide the “proposed services,” expressions which fail specifically to mention bulk authority. Respondent’s Brief at 22-23, citing Appendix at 10, 11, 15, 41, 42. And the section of Dennis’ application that deals with proposed service (Appendix at 14-15) states that Dennis “proposes to offer the same type of services presently provided, in an expanded, but concentrated, service area” — in other words, that Dennis seeks to continue to provide non-bulk service, but in a larger area. Dennis’ brief in the present appeal does specifically express a willingness to transport in bulk. But of course this brief was not part of the administrative proceedings. And _ even in its appellate brief, Dennis’ expressions of willingness are rather tepid. Dennis notes that the authority requested was in accordance with ICC policy at the time of the application, and that ATA I was not decided until after the ICC Appellate Division had reached a final decision in the present case. Dennis legitimately complains that it “found itself caught up in this unsettled period.” Intervenor’s Brief at 8. The implication of this argument is that Dennis might very well not have applied for bulk authority had it known of ATA I before it submitted its application. Dennis acknowledges that ICC policy was one of the factors inducing it to apply for general authority with no exception for bulk. But the only other factor it cites is the allegedly broad nature of the supporting shippers’ traffic, not its own fitness or willingness. Intervenor’s Brief at 8. Whatever slight evidence of willingness there may be in this proceeding is based solely on the fact that Dennis did apply for general authority and did not specifically ask the ICC to except bulk transportation from the general grant. Even if such evidence would under other circumstances suffice to show willingness, in this case it is fatally tainted by the ICC policies that left Dennis little alternative but to apply for bulk authority. C It is undisputed that at the time of its application Dennis lacked bulk capability. Any finding of fitness therefore would depend on a finding that Dennis is willing to acquire the necessary equipment. If there is insufficient evidence of willingness to transport in bulk, then under the facts of this case there is also insufficient evidence of fitness. To guide the ICC on remand, we note our agreement with its view that an applicant need not be fully outfitted to carry in bulk at the time of application in order for the applicant to be considered fit. On the other hand, Whether an applicant has the proper equipment to provide [the proposed] service is an important consideration in determining whether the requirements have been met. American Trucking [ATA I] at 465, 473. Steere Tank Lines, Inc. v. ICC, 675 F.2d 103, 104 (5th Cir. 1982). D ICC’s argument that there was sufficient evidence of public demand or need, despite the failure of all thirty-five supporting shippers specifically to mention a need for bulk service, is not persuasive. The contention is in essence that three or four of the supporting shippers ship (among other things) commodities that are “susceptible of being transported in bulk.” This includes one shipper (U. S. Gypsum) that ships one commodity, among many, that is allegedly “almost invariably transported in bulk,” and another shipper (Crest Brick Co.) that supposedly ships “bauxite and aluminum... loose in bulk.” See Respondent’s Brief at 18, 19, 27-29. Because a few of the supporting shippers stated that they ship some commodities that are at least susceptible of being transported in bulk it can be inferred that they need Dennis to ship these commodities in bulk, or so the ICC now maintains. Since Dennis undoubtedly expected that it would be given bulk authority in any case, provided that its request for territorial expansion was approved — and since Dennis may not even have wanted bulk authority — it is not surprising that Dennis’ supporting shippers should have had so little to say about bulk needs. The evidence of public demand or need in this proceeding is so indirect and speculative as to fail even the minimal standard of section 10922(b)(1)(B). Of course, the ICC is entitled to make certain inferences from the evidence. But when the sole “evidence presented by persons supporting the issuance of the certificate” pursuant to section 10922(b)(1)(B) is the statements of shippers who plan to use the service proposed, it cannot be too much to expect one or more of these shippers — we express no view as to how many are needed — to make it clear that they believe they have some need or are prepared to make a demand for the service. IV Accordingly, the grant of authority to Dennis insofar as the grant encompasses authority to transport in bulk will be vacated, and the matter will be remanded to the ICC for further proceedings consistent with this opinion. . In American Trucking Associations, Inc. v. ICC, 669 F.2d 957 (5th Cir. 1982) (ATA II), the Fifth Circuit issued a writ of mandamus enforcing ATA I, along with an opinion clarifying its initial decision. In American Trucking Associations, Inc. v. ICC, 673 F.2d 82 (5th Cir. 1982) (ATA III), the court declined to undertake an across the board review of all ICC decisions in violation of ATA I. According to ATA II, supra, 669 F.2d at 959, n.l, the ICC allowed the time for filing a petition for certiorari with the Supreme Court in ATA I to lapse. After ATA II, however, the ICC petitioned for certiorari, asking the Supreme Court to review both ATA I and ATA II. Justice White issued a stay of the mandamus pending the filing and the disposition of the ICC’s petition for certiorari, S.Ct. No. A-810 (March 29, 1982). In the present case, the ICC and Port Norris have not discussed ATA II or ATA III. Port Norris relies heavily on ATA I, and the ICC distinguishes but does not challenge ATA I. A recent decision of the District of Columbia Circuit, Ritter Transportation, Inc. v. ICC, 684 F.2d 86 (D.C.Cir.1982), relying on ATA I and on Steere Tank Lines, Inc. v. ICC, 666 F.2d 255 (5th Cir. 1982), vacated an order of the ICC that had removed restrictions on Port Norris. Port Norris’ authority is not an issue in the present case, however. . A fifth Port Norris case, No. 81-3019, Allied Bulk Carriers, Inc., Intervenor, has yet to be decided by this Court. . That provision reads: (1) Except as provided in this section, the Interstate Commerce Commission shall issue a certificate to a person authorizing that person to provide transportation subject to the jurisdiction of the Commission under sub-chapter II of chapter 105 of this title as a motor common carrier of property if the Commission finds— (A) that the person is fit, willing, and able to provide the transportation to be authorized by the certificate and to comply with this subtitle and regulations of the Commission; and (B) on the basis of evidence presented by persons supporting the issuance of the certificate, that the service proposed will serve a useful public purpose, responsive to a public demand or need; unless the Commission finds, on the basis of evidence presented by persons objecting to the issuance of a certificate, that the transportation to be authorized by the certificate is inconsistent with public convenience and necessity. (2) In making a finding under paragraph (1) of this subsection, the Commission shall consider and, to the extent applicable, make findings on at least the following: (A) the transportation policy of section 10101(a) of this title; and (B) the effect of issuance of the certificate on existing carriers, except that the Commission shall not find diversion of revenue or traffic from an existing carrier to be in and of itself inconsistent with the public convenience and necessity. (3) The Commission may not make a finding relating to public convenience and necessity under paragraph (1) of this subsection which is based upon general findings developed in rulemaking proceedings. Section 10101(a), referred to in § 10922(b)(2)(A), reads: § 10101. Transportation policy (a) Except where policy has an impact on rail carriers, in which case the principles of section 10101a of this title [49 USCS § 10101a] shall govern, to ensure the development, coordination, and preservation of a transportation system that meets the transportation needs of the United States, including the United States Postal Service and national defense, it is the policy of the United States Government to provide for the impartial regulation of the modes of transportation subject to this subtitle, and in regulating those modes— (1) to recognize and preserve the inherent advantage of each mode of transportation; (2) to promote safe, adequate, economical, and efficient transportation; (3) to encourage sound economic conditions in transportation, including sound economic conditions among carriers; (4) to encourage the establishment and maintenance of reasonable rates for transportation without unreasonable discrimination or unfair or destructive competitive practices; (5) to cooperate with each State and the officials of each State on transportation matters; (6) to encourage fair wages and working conditions in the transportation industry; and (7) with respect to transportation of property by motor carrier, to promote competitive and efficient transportation services in order to (A) meet the needs of shippers, receivers, and consumers; (B) allow a variety of quality and price options to meet changing market demands and the diverse requirements of the shipping public; (C) allow the most productive use of equipment and energy resources; (D) enable efficient and well-managed carriers to earn adequate profits, attract capital, and maintain fair wages and working conditions; (E) provide and maintain service to small communities and small shippers; (F) improve and maintain a sound, safe, and competitive privately-owned motor carrier system; (G) promote greater participation by minorities in the motor carrier system; and (H) promote intermodal transportation. . The ICC’s position on this question is puzzling. Though its brief here argues that “some evidence” of public demand or need is all that is required, it has clearly announced in Averitt Express, Inc., Extension—Points in the United States, No. MC-121600, Sub. No. 13F (unprinted; Division 1), serv. February 6, 1981, that it does not employ the “some evidence” standard in Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Which category of federal government agencies and activities best describes this litigant? A. cabinet level department B. courts or legislative C. agency whose first word is "federal" D. other agency, beginning with "A" thru "E" E. other agency, beginning with "F" thru "N" F. other agency, beginning with "O" thru "R" G. other agency, beginning with "S" thru "Z" H. Distric of Columbia I. other, not listed, not able to classify Answer:
songer_casetyp1_9-3	B	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Your task is to determine the specific issue in the case within the broad category of "miscellaneous". Myra Holladay SIMS and Florida Import and Compliance Association, Plaintiffs-Appellees, v. STATE OF FLORIDA, DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Defendant-Appellant. No. 86-3055. United States Court of Appeals, Eleventh Circuit. Dec. 2, 1987. Eric J. Taylor, Asst. Atty. Gen., Dept, of Legal Affairs, Tallahassee, Fla., for defendant-appellant. William C. Owen, Carlton, Fields, Ward, Emmanuel, George N. Meros, Tallahassee, Fla., amicus: Fla. Auto. Dealers Ass’n. Susan Greco Tuttle, Moffitt, Hart & Miller, Tampa, Fla., amicus: Import Auto. Dealers of Florida, Inc. Edward T. O’Donnell, Mershon, Sawyer, Johnston, Dunwody & Cole, Miami, Fla., amicus: Mercedes-Benz of North America, Inc. Robert P. Smith, Jr., Tallahassee, Fla., for plaintiffs-appellees. Before TJOFLAT and HATCHETT, Circuit Judges, and EATON, District Judge. Honorable Joe Eaton, Senior U.S. District Judge for the Southern District of Florida, sitting by designation. HATCHETT, Circuit Judge. The State of Florida, and the Department of Highway Safety and Motor Vehicles, appeal from the district court’s declaration that Florida Statute § 320.02(9) is unconstitutional because it is preempted under the supremacy clause and violates the commerce clause of the United States Constitution. We affirm in part and remand. FACTS On April 30, 1985, Myra Holladay Sims imported from Europe an automobile popularly known as a “gray market” automobile. “Gray market” automobiles are imported automobiles which are not designed or manufactured to comply with United States emissions and safety standards. Florida Import and Compliance Association (FICA) is a trade association whose members are directly involved in the importation of gray market automobiles. Two federal statutes govern the importation of foreign manufactured automobiles into the United States. The Clean Air Act, 42 U.S.C. § 7522, and the Safety Act, 15 U.S.C. § 1397, bar the importation of motor vehicles that do not comply with the applicable federal emissions and safety standards. Specifically, the Clean Air Act prohibits the sale, or the offering for sale, or the introduction, or delivery for introduction, into commerce, or (in the case of any person, except as provided by regulation of the Administrator), the importation into the United States, of any new motor vehicle or new motor vehicle engine, manufactured after the effective date of regulations under this part which are applicable to such vehicle or engine unless such vehicle or engine is covered by a certificate of conformity issued (and in effect) under regulations prescribed [by this statute]. 42 U.S.C. § 7522(a)(1). Also, under section 7522(b)(2), the statute provides that [t]he Secretary of the Treasury and the Administrator [of the Environmental Protection Agency (EPA) ] may, by joint regulation provide for deferring final determination as to admission and authorizing the delivery of such a motor vehicle or engine offered for import to the owner or consignee thereof upon such terms and conditions (including the furnishing of a bond) as may appear to them appropriate to ensure that any such motor vehicle or engine will be brought into conformity with the standards, requirements, and limitations applicable to it under this part. The Secretary of the Treasury shall, if a motor vehicle or engine is finally refused admission under this paragraph, cause disposition thereof in accordance with the customs laws unless it is exported, under regulations prescribed by such Secretary, within ninety days of the date of notice of such refusal or such additional time as may be permitted pursuant to such regulations, except that disposition in accordance with the customs laws may not be made in such manner as may result, directly or indirectly, in the sale, to the ultimate customer, of a new motor vehicle or new motor vehicle engine that fails to comply with applicable standards of the Administrator under this part. Similarly, the Safety Act provides that “[n]o person shall manufacture for sale, sell, offer for sale, or introduce or deliver for introduction in interstate commerce, or import into the United States, any motor vehicle [unless it is in conformity with applicable federal motor vehicle safety standards].” 15 U.S.C. § 1397(a)(1)(A). In addition, that statute provides as follows: [T]he Secretary of the Treasury and the Secretary [of the National Highway Transportation Safety Administration, Department of Transportation (DOT)] may, by... regulations, provide for authorizing the importation of such motor vehicle or item of motor vehicle equipment into the United States upon such terms and conditions (including the furnishing of a bond) as may appear to them appropriate to ensure that any such motor vehicle or item of motor vehicle equipment will be brought into conformity with any applicable federal motor vehicle safety standard prescribed under this subchapter, or will be exported or abandoned to the United States. 15 U.S.C. § 1397(b)(3). Despite general prohibitions against the importation of nonconforming motor vehicles into the United States, Congress, under the above provisions, authorized the importation of gray market vehicles upon the furnishing of a bond or other means of assuring that federal environmental and safety laws are not unlawfully circumvented. The EPA, the DOT, and the Treasury Department promulgated regulations governing the importation of gray market vehicles. See generally 19 C.F.R. §§ 12.73, 12.80; 40 C.F.R. Part 85, Subpart P and 49 C.F.R. Part 571. Under these regulations, a gray market vehicle is conditionally admitted into the United States for the limited purpose of enabling the importer to comply with federal emissions and safety laws. The importer must post an entry bond with the United States Customs Service (Customs) for an amount equal to the value of the vehicle plus the customs duty. See Automobile Importers Compliance Association, Handbook of Vehicle Importation, 21 (1984). In addition, the importer must sign a statement indicating that the motor vehicle “is not covered by a certificate of conformity with federal motor vehicle emission standards but will be brought into conformity with such standards.” 19 C.F.R. § 12.73(b)(5)(x) (1986). Finally, the importer must declare that the vehicle “was not manufactured in conformity [with] all applicable safety standards, but it has been or will be brought into conformity.” 19 C.F.R. § 12.80(b)(l)(iii). The entry bond serves as a means to enforce the importer’s obligation to comply with the requirements of federal emission and safety standards. Thus, Customs will not release the bond until it receives assurance from the EPA and the DOT that the importer has complied with the standards. See 19 C.F.R. §§ 12.73c and 12.80e. When Sim’s automobile arrived at port in Jacksonville, Florida, she complied with all of the applicable federal regulations governing the importation of gray market automobiles, which included posting a bond in the requisite amount. Sims was exempt from conforming her automobile to the applicable federal emission standards and received a letter from the EPA releasing the EPA obligation on the bond. In complying with the Safety Act and the DOT regulations, Sims completed the requirements under 19 C.F.R. § 12.80(b)(l)(iii). In 1984, the Florida legislature passed the following statute concerning automobile titling and registration: Before a motor vehicle which has not been manufactured in accordance with the federal Clean Air Act and the federal Motor Vehicle Safety Act can be sold to a consumer and titled and registered in this state, the motor vehicle must be certified by the United States Customs Service or the United States Department of Transportation and the United States Environmental Protection Agency to be in compliance with these federal standards. A vehicle which is registered pursuant to this subsection shall not be titled as a new motor vehicle. Act approved June 11, 1984, ch. 84-155, § 3, 1984 Fla.Laws 457, 458 (codified as amended at Fla.Stat. § 320.02(9) (1985)). This provision prevents the owner of a gray market vehicle from acquiring title and vehicle registration in Florida until the owner has obtained the required documentation from the federal government. Subsequent to the passage of Fla.Stat. § 320.02(9), Sims unsuccessfully sought to title and register her automobile at the Florida Department of Highway Safety and Motor Vehicles (DMV). The DMV refused to title and register Sims’s automobile because she did not produce release letters from the DOT and Customs certifying compliance with federal standards. Sims had not received a bond release letter from the DOT because of the excessive number of forms the DOT had to review. Following refusal to title and register the automobile, Sims and the FICA filed suit in United States District Court for the Northern District of Florida alleging that the state’s enforcement of section 320.02(9) violated the supremacy and commerce clauses of the United States Constitution: (1) the Clean Air Act and the Safety Act preempt the state’s authority to require compliance with federal emission and safety standards, and (2) enforcement of section 320.02(9) places an impermissible burden on foreign and interstate commerce. The district court concluded that the Clean Air Act and Safety Act preempt the state’s authority to enforce section 320.02(9) and that enforcement of the statute would violate the commerce clause. The district court declared section 320.02(9) unconstitutional and enjoined its enforcement. The state brings this appeal from the district court’s ruling. On September 29, 1986, we heard oral arguments addressing whether Fla.Stat. § 320.02(9) violates the supremacy and commerce clauses of the United States Constitution. On February 18, 1987, we requested “all counsel of record” to submit supplemental briefs addressing (1) standing, (2) Florida’s sovereign immunity under the eleventh amendment, and (3) mootness. The parties complied with our request. DISCUSSION A. Standing The state of Florida alleges that Sims and the FICA lack standing to challenge the constitutionality of Fla.Stat. § 320.02(9) because they have failed to show (1) a judicially cognizable injury traceable to the enforcement of the statute, and (2) the likelihood of redress if the Florida statute is declared preempted or in violation of the commerce clause. “[T]he question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues.” Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975). In order to satisfy the requirements of standing, a plaintiff must allege a personal injury fairly traceable to the challenged conduct and a likelihood of redress by the requested relief. Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982). Sims and the FICA allege that the state’s enforcement of Fla.Stat. § 320.02(9) violates the supremacy and commerce clauses of the United States Constitution because it prevents the owner of a “gray market” vehicle from acquiring title and registration in Florida prior to release of the entry bond and final admission of the vehicle into the United States. We note that whether the appellees have sufficiently alleged standing is not determined by the likelihood that they will prove what has been alleged. The Supreme Court’s ruling in Warth, 422 U.S. at 501, 95 S.Ct. at 2206, requires the courts to “accept as true all material allegations of the complaint, and... construe the complaint in favor of the complaining party.” See Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99 S.Ct. 1601, 60 L.Ed.2d 66 (1979). In satisfying the initial requirement under the Article III doctrine relating to standing—an allegation of “a distinct and palpable injury,” Warth, 422 U.S. at 501, 95 S.Ct. at 2206. Sims and the FICA’s complaints allege that the state’s enforcement of section 320.02(9) unlawfully prevents the titling and registering of gray market vehicles in Florida. In assuming, as we must, the truth of the allegations, the state’s unlawful refusal to issue titles and registrations to owners of gray market vehicles constitutes a distinct, palpable, and personal injury to Sims and the FICA. Also, Sims’s and the FICA’s complaints contain assertions sufficient to establish the second requirement necessary to show standing—the likelihood of redress by the requested relief. Absent the state’s enforcement of section 320.02(9), Sims and other owners of gray market vehicles would immediately have their vehicles titled and registered in Florida. Federal statutes do not prohibit the titling and registering of gray market vehicles prior to final admission; similarly, the DOT does not prohibit the operation of gray market vehicles on public highways prior to the issuance of a release letter Only the EPA, under Title 40 C.F.R. § 85.1507 (1985), requires that gray market vehicles “be stored and... not... operated on the public highways [prior to] final admission.” The state’s argument is that since Sims and other owners of gray market vehicles are prohibited by section 85.1507 from operating such vehicles on the state roads until final admission is granted, they have no reason to seek titling and the registration of these vehicles. Such a contention amounts to mere speculation as to the owner’s need for, or the reason for which the owner seeks titling and registration. Moreover, Fla.Stat. § 320.02(1) does not prohibit the registration of vehicles that are not operated on Florida roads. We cannot conclude that titling and registration of a gray market vehicle are necessary only for the operation or sale of the automobile. In this case, we also find that Sims and the FICA have sufficiently alleged a distinct, palpable, and personal injury in the state’s enforcement of Fla.Stat. § 320.02(1). “There is [a] casual connection between the asserted injury and the conduct being challenged.” Allen v. Wright, 468 U.S. 737, 770, 104 S.Ct. 3315, 3334, 82 L.Ed.2d 556 (1984) (noting Simmon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 41, 96 S.Ct. 1917, 1925, 48 L.Ed.2d 450 (1976)). We hold that this lawsuit presents a “case or controversy” as required by article III of the United States Constitution and does not constitute a “hypothetical case.” Sims and FICA have standing to bring this lawsuit. B. Preemption Sims and the FICA successfully challenged the constitutionality of Fla.Stat. § 320.02(9) in the district court. The district court held that the Clean Air Act and Safety Act preempt the state’s authority to require compliance with federal emission and safety standards. Federal preemption of state law is derived from the supremacy clause of article IV, clause 2 of the United States Constitution, which reads as follows: This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any state to the contrary notwithstanding. The Supreme Court in Michigan Canners and Freezers Association, Inc. v. Agricultural Marketing and Bargaining Board, 467 U.S. 461, 104 S.Ct. 2518, 81 L.Ed.2d 399 (1984) stated the three ways in which federal law may preempt state law. Federal law may preempt state law in any of three ways. First, in enacting the federal law, Congress may explicitly define the extent to which it intends to preempt state law. [Citation omitted.] Second, even in the absence of express preemptive language, Congress may indicate an intent to occupy an entire field of regulation, in which case the states must leave all regulatory activity in that area to the federal government. [Citations omitted.] Finally, if Congress has not displaced state regulation entirely, it may nonetheless preempt state law to the extent that the state law actually conflicts with federal law. Michigan Canners, 467 U.S. at 469, 104 S.Ct. at 2523. In Howard v. Uniroyal, Inc., 719 F.2d 1552, 1555 (11th Cir.1983), we “acknowledge[d] the well established principle that the touchstone of preemption analysis is congressional intent....” Additionally, “[t]he intent of Congress to pre-empt a state law may be either express or implied, and ‘is compelled whether Congress’ command is explicitly stated in the statute’s language or implicitly contained in its structure and purpose.’ ” Howard, 719 F.2d at 1556 (citing Jones v. Rath Packing Co., 430 U.S. 519, 525, 97 S.Ct. 1305, 1309, 51 L.Ed.2d 604 (1977)). The Clean Air Act contains the following preemptive provision regarding state enforcement of federal emission standards: No state or any political subdivision thereof shall adopt of attempt to enforce any standard relating to the control of emissions from new motor vehicles or new motor vehicles engines subject to [the vehicle emission standards of the Clean Air Act]. No state shall require certification, inspection, or any other approval relating to the control of emissions from any new motor vehicle or motor vehicle engine as condition precedent to the initial retail sale, titling (if any), or registration of such motor vehicle, motor vehicle engine, or equipment. 42 U.S.C. § 7543(a). The express language in section 7543(a) indicates Congress's intent to exclusively regulate the control of emissions from new motor vehicles prior to the initial sale. See Michigan Canners, 467 U.S. 461, 104 S.Ct. 2518. The state contends that Fla.Stat. § 320.02(9) simply ensures that new automobiles coming onto Florida’s highways comply with the Clean Air Act; it does not establish new or conflicting emission standards. Although this contention may be based on proper and wholesome intentions, nevertheless, Congress specifically stated that “[n]o state... shall adopt or attempt to enforce any [federal or state] standard relating to the control of emissions from new motor vehicles” prior to the initial sale. 42 U.S.C. § 7543(a) (emphasis added). Thus, we agree with the district court’s ruling and hold that “[enforcement of the Clean Air Act before [the] first sale [of new motor vehicles] is the sole and exclusive prerogative of the federal government.” The Safety Act likewise contains a preemptive provision which reads in part as follows: Whenever a federal motor vehicle safety standard established under this subchap-ter is in effect, no state or political subdivision of a state shall have any authority either to establish, or to continue in effect, with respect to any motor vehicle or item of motor vehicle equipment any safety standard applicable to the same aspect of performance of such vehicle or item of equipment which is not identical to the federal standard. 15 U.S.C. § 1392(d). Unlike the preemptive provision contained in the Clean Air Act, 15 U.S.C. § 1392(d) precludes states from enforcement of safety standards only when such standards are not identical to federal standards. The district court held that prior to the first sale ¡of a motor vehicle, “[t]he states are absolutely barred from acting in any manner whatsoever in” enforcing federal safety standards and that “the role of the states in enforcing the federal laws and regulations is confined solely to the period after the first sale of an automobile.” We disagree. Section 1392(d) does not expressly preclude states from requiring proof of compliance with federal safety standards before obtaining title and registration for gray market automobiles. In Hillsborough County, Florida v. Automated Medical Laboratories, Inc., 471 U.S. 707, 714, 105 S.Ct. 2371, 2376, 85 L.Ed.2d 714, 722 (1985), the United States Supreme Court stated that “[t]he question whether the regulation of an entire field has been reserved by the federal government is, essentially, a question of ascertaining the intent underlying the federal scheme.” Congress enacted the Motor Vehicle Safety Act to establish uniform federal safety standards. See H.R. 1776, 89th Cong., 2d Sess. 17 (1966), U.S.Code Cong. & Admin.News 1966, p. 2709. Section 1392(d), as originally enacted, restricted federal enforcement of safety standards to the initial sale of new vehicles and permitted state enforcement of safety standards identical to corresponding federal standards after the first sale of new vehicles. S.Rep. No. 1301, 89th Cong., 2d Sess., reprinted in 1966 U.S.Cong. & Admin.News 2709, 2720. Also, the District Court for the Middle District of Pennsylvania in Truck Safety Equipment Institute v. Kane, 466 F.Supp. 1242 (M.D.Pa.1979), held that state safety standards identical to federal standards were preempted because the intent of Congress was to preclude states from presale enforcement of federal safety standards. The court in Kane, however, noted that the standards derived under the Pennsylvania system required independent testing and the payment of fees to cover the cost of such testing. Kane, 466 F.Supp. at 1245-46. Unlike the Pennsylvania regulations examined in Kane, Fla.Stat. § 320.02(9) does not impose additional requirements on the importer of a gray market vehicle than those imposed by the applicable federal standards. In 1982, the National Highway Traffic Safety Administration (NHTSA) issued an opinion in an attempt to interpret the extent to which section 1392(d) preempted state enforcement of federal safety standards. Federal Motor Vehicle Safety Standards: Interpretation Regarding Preemption and Presale State Enforcement of Safety Standards, 47 Fed.Reg. 884 (Advisory Letter) (1982). In its interpretation, the NHTSA stated: [I]t is the position of the NHTSA that any state requirement which necessitates that manufacturers pay fees in order to obtain approval under a state standard identical to an FMVSS [Federal Motor Vehicle Safety Standard], and any imposition of requirements for approval which has the effect of prescribing the sale of equipment certified under the Act to a standard such as FMVSS 218 would be preempted by operation of the Act and of the agency’s action in adopting the federal standard in question. 47 Fed.Reg. at 885. Recently, the Fifth Circuit in Direct Automobile Importers Association, Inc. v. Townsley, 804 F.2d 1408 (5th Cir.1986), examined a Texas statute similar in language to Fla.Stat. § 320.02(9) and stated: H.B. 1805 places no burden on the manufacturer, which was clearly the concern behind the interpretation. H.B. 1805 does not involve the payment of any fees, nor does it have the effect of prescribing the sale of federally certified equipment. Indeed, H.B. 1805 does not require any certification except federal certification by federal authorities. As best we can tell, the original pre-1982 amendment provision was enacted to assure uniformity of standards for manufacturers so vehicles and equipment meeting the federal standards could be sold freely in any state. See remarks of Senator Magnu-son (one of the NHTSA’s sponsors), 112 Cong.Ree. S14230 (daily ed. June 14, 1966) (remarks of Senator Magnuson). The Texas statute H.B. 1805, does not impair this objective since it creates no independent state standard or certification of the automobiles. Townsley, 804 F.2d at 1414. The same rationale holds true in this case regarding Fla.Stat. § 320.02(9). As noted above, Fla. Stat. § 320.02(9) neither imposes additional requirements or burdens on the manufacturer or importer, nor involves the payment of additional fees. Additionally, section 320.02(9) does not have the effect of prescribing the sale of federally certified equipment, or impairing the objective of Congress in establishing uniform federal safety standards to permit the free marketability of vehicles in all states. In 1982, Congress amended section 1392(d) by adding the following sentence to the end of the provision: “Nothing in this section shall be construed as preventing any state from enforcing any safety standard which is identical to a federal safety standard.” 15 U.S.C. § 1392(d) (1982). The Senate issued a report on the amendment which reads in part as follows: The committee intends that states are not preempted from enforcing safety standards identical to federal standards which they have adopted. States may not require [state] certification or approval of motor vehicles or motor vehicle equipment. However, state enforcement may be carried out according to applicable state laws. States may undertake independent testing, and also may require manufacturers to submit adequate test data concurrent with the first sale or thereafter. S.Rep. No. 505, 97th Cong., 2d Sess. 6, reprinted in 1982 U.S.Code Cong. & Admin.News 3169, 3174. In Georgia Automobile Importers Compliance Association, Inc. v. Bowers, 639 F.Supp. 352 (1986), the District Court for the Northern District of Georgia addressed the constitutionality of Georgia statutes O.C.G.A. §§ 40-2-25.1, 40-3-29.1, and 16-9-110 (1985) in light of 15 U.S.C. § 1392(d) (1982). In reviewing the legislative history of section 1392(d), the district court noted several statements made on the floor of the House of Representatives when the bill was passed indicating congressional intent. Representative Wirth stated that “[a] recent court case and NHTSA opinion have changed the scope of traditional state enforcement.” 128 Cong. Rec. H3438 (daily ed. June 14, 1982) (remarks of Rep. Wirth). Representative Moorhead considered the amendment to affirmatively declare states as having a role in enforcing federal safety standards. See 128 Cong.Rec. H3439 (daily ed. June 14, 1982) (remarks of Rep. Moorhead). In addition, Representative Dingell stated in regard to section 1392(d), as amended, that “states may undertake independent testing of vehicles or equipment and may require manufacturers to submit adequate data concurrently with the first sale within a state, or thereafter.” 128 Cong.Rec. H3440 (daily ed. June 14, 1982) (remarks of Rep. Dingell). We agree with the court’s conclusion in Townsley that “the legislative history shows an intent to preempt state presale enforcement of federal standards where the sale of federally certified equipment is impaired by an independent state compliance system.” Townsley, 804 F.2d at 1415. Fla.Stat. § 320.02(9) does not create an impairment to the enforcement of federal safety standards or frustrate the intent of Congress in establishing uniformity of standards for manufacturers of vehicles; consequently, we hold that 15 U.S.C. § 1392(d) (1982) does not preempt Fla.Stat. § 320.02(9) (1985). C. Commerce Clause The district court concluded that since Fla.Stat. 320.02(9) prevents owners of gray market vehicles from titling and registering their vehicles prior to presenting proof of compliance with federal emission and safety standards, the marketability of gray market vehicles is limited and prevents their free introduction into the stream of commerce. The commerce clause of the United States Constitution reads in part as follows: “The Congress shall have the power to regulate commerce with foreign nations, and among the several states_” U.S. Const. art I, § 8, cl. 3. In determining whether Fla.Stat. § 320.02(9) is violative of the commerce clause, we must (1) determine exactly what interest the statute purports to protect, (2) determine whether the statute burdens commerce, and if so, to what extent, and (3) balance the weight and nature of the interests protected by the statute against the extent to which it imposes a burden on commerce. See generally Kassel v. Consolidated Freightways Corp., 450 U.S. 662, 101 S.Ct. 1309, 67 L.Ed.2d 580 (1981). In addressing the extent to which states may create laws affecting commerce, the Supreme Court has held that: The commerce clause does not... invalidate all state restrictions on commerce. It has long been recognized that, ‘in the absence of conflicting legislation by Congress, there is a residuum of power in the state to make laws governing matters of local concern which nevertheless in some measure affect interstate commerce or even, to some extent, regulate it.’ [Citation omitted.] The extent of permissible state regulation is not always easy to measure. It may be said with confidence, however, that a state's power to regulate commerce is never greater than in matters traditionally of local concern. [Citation omitted.] For example, regulations that touch upon safety — especially highway safety — are those that ‘the Court has been most reluctant to invalidate.’ [Citations omitted.] Indeed, ‘if safety justifications are not illusory, the Court will not second guess legislative judgment about their importance in comparison with related burdens on interstate commerce.’ [Citation omitted.] Those who would challenge such bona fide safety regulations must overcome a ‘strong presumption of validity.’ [Citation omitted.] Kassel, 450 U.S. at 669-70, 101 S.Ct. at 1315-16. The objective of Fla.Stat. § 320.02(9) is to ensure that gray market vehicles comply with federal emission and safety standards before receiving titles and registration in Florida. Fla.Stat. § 320.02(9) advances a legitimate and local concern for the health and safety of the state’s citizens in that it attempts to prevent the sale and operation of vehicles in Florida that are not considered safe for persons and the environment under federal standards. We must now determine the extent to which Fla.Stat. § 320.02(9) burdens commerce. Section 320.02(9) imposes restrictions on the importation of gray market vehicles into the United States. We agree with the district court that: The statute prevents the titling and registration of vehicles which in turn limits the marketability of the cars. To force an importer to use a different port of entry, for example, Savannah, Georgia, or Mobile, Alabama, in order to receive registration and titles from the relevant state authorities without having to endure the trials and tribulations that Florida has erected in their path destroys the common market of commerce for the entire United States as established by the Constitution. It is precisely this type of state action that the Commerce Clause was designed to prevent; thus the statute is constitutionally infirm. Accordingly, in weighing the local concerns of section 320.02(9) against the burden on commerce, we find that Fla.Stat. § 320.02(9) does violate the commerce clause. Although Fla.Stat. § 320.02(9) requires no greater compliance than compliance with applicable federal standards, Florida’s titling and registration statute imposes a burden on foreign and interstate commerce. The Florida Statute directs the stream of commerce in gray market vehicles from Florida to other states for those owners who have legitimate reasons for registering and titling their vehicles before being able to use them on the roads of Florida. D. Immunity Sims and the FICA filed suit in the district court against the State of Florida, Department of Highway Safety and Motor Vehicles, and the Attorney General seeking to enjoin the enforcement of Fla.Stat. § 320.02(9). Thereafter, Sims and the FICA filed a motion (which was not contested) to dismiss the Attorney General as a defendant in the case. The Director of the Division of Motor Vehicles, Florida Department of Highway Safety and Motor Vehicles, was never included as a party defendant. Thus, the only remaining party defendants in the present action are the State of Florida and one of its agencies— the Department of Highway Safety and Motor Vehicles. “It is clear... that in the absence of consent a suit in which the state or one of its agencies or departments is named as the defendant is prescribed by the eleventh amendment.” Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 100, 104 S.Ct. 900, 908, 79 L.Ed.2d 67 (1984). The state of Florida, in responding to the constitutional challenge to Fla.Stat. § 320.02(9), failed to plead the defense of sovereign immunity under the eleventh amendment and did not initially raise the issue on appeal. Nonetheless, “[T]he eleventh amendment defense sufficiently partakes of the nature of a jurisdictional bar so that it need not be raised in the trial court.” Edelman v. Jordan, 415 U.S. 651, 678, 94 S.Ct. 1347, 1363, 39 L.Ed.2d 662 (1974). Moreover, Florida’s constitution requires “specific, clear, and unambiguous language in a statute to constitute a waiver of sovereign immunity.” Manatee County v. Town of Longboat Key, 365 So.2d 143, 147 (Fla.1978). In our review of Florida law, we have found no legislative enactment waiving the state’s sovereign immunity under the facts and issues in this case. The state of Florida asserted the defense of sovereign immunity in this case only after this court requested that the parties brief the issue. Sims and the FICA contend that this court unwarrantedly raised the eleventh amendment defense, citing Patsy v. Board of Regents of the State of Florida, 457 U.S. 496, 515 n. 19, 102 S.Ct. 2557, 2567 n. 19, 73 L.Ed.2d 172 (1982): “[W]e have never held that [the eleventh amendment defense] is jurisdictional in the sense that it must be raised and decided by this court on its own motion.” Although we do not interpret Patsy as prohibiting this court from raising the issue of sovereign immunity, we do recognize the inequity in allowing the state to now assert the defense of sovereign immunity without affording Sims and the FICA an opportunity to effectively counter the defense at this stage in the litigation. After reviewing Florida law on sovereign immunity and the procedural position in which the parties are caught we remand (as we did in Patsy) this issue to the district court to determine whether Sims and the FICA should be granted leave to add an appropriate party in light of the state’s untimely and compelled assertion of the sovereign immunity defense. E. Mootness Amicus curiae Mercedes Benz of North America, Incorporated, raised the issue of mootness in this case because Myra Sims has now received final admission of her automobile. The FICA remains a party in the present action with a continuing interest in the outcome. Moreover, the state concedes that Sims and the FICA’s claim is not moot: “The issue... is one that is capable of repetition yet evading review.” We agree with this conclusion and accordingly hold that the present action is not moot. CONCLUSION In summary, we affirm the district court’s finding that Fla.Stat. § 320.02(9) vi-dates the Clean Air Act, 42 U.S.C. § 7522 because Congress has reserved to the federal government the sole and exclusive prerogative of enforcing federal emission standards. We also affirm the district court’s ruling that Fla.Stat. § 320.02(9) violates the commerce clause, U.S. Const, art. I, § 8, cl. 3. Also, we remand to the district court the sole issue of whether Sims and the FICA should be granted leave to add an additional party or parties in this case. Accordingly, we affirm in part and remand for further proceedings consistent with this opinion. AFFIRMED in part and REMANDED . Sims purchased the used 1976 Mercedes Benz 450 SEL from Ulrich Kieserwalter of Bonn, West Germany. . The definition of "new car" under the Clean Air Act as Question: What is the specific issue in the case within the general category of "miscellaneous"? A. miscellaneous interstate conflict B. other federalism issue (only code as issue if opinion explicitly discusses federalism as an important issue - or if opinion explicity discusses conflict of state power vs federal power) C. attorneys (disbarment; etc) D. selective service or draft issues (which do not include 1st amendment challenges) E. challenge to authority of magistrates, special masters, etc. F. challenge to authority of bankruptcy judge or referees in bankruptcy G. Indian law - criminal verdict challenged due to interpretation of tribal statutes or other indian law H. Indian law - commercial disputes based on interpretation of Indian treaties or law (includes disputes over mineral rights) I. Indian law - Indian claims acts and disputes over real property (includes Alaska Native Claims Act) J. Indian law - federal regulation of Indian land and affairs K. Indian law - state/local authority over Indian land and affairs L. Indian law - tribal regulation of economic activities (includes tribal taxation) M. other Indian law N. international law O. immigration (except civil rights claims of immigrants and aliens) P. other Q. not ascertained Answer:
sc_issue_3	M	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. SICURELLA v. UNITED STATES. No. 250. Argued February 1, 1955. Decided March 14, 1955. Hayden C. Covington argued the cause and filed a brief for petitioner. John F. Davis argued the cause for the United States. With him on the brief were Solicitor General Sobeloff, Assistant Attorney General Olney, Beatrice Rosenberg and J. F. Bishop. Mr. Justice Clark delivered the opinion of the Court. Petitioner was born in 1927 and was brought up as a Jehovah’s Witness by his parents, both of whom were of that faith. He has been identified with the sect since he was 6 years old, “was immersed and became a consecrated servant of Jehovah” at 15, and was ordained when 17 years old. He registered with his local Board in 1948, and, although he worked 44 hours a week for the Railway Express Company, he was first classified as a minister. In 1950, however, petitioner was reclassified for general service and, shortly thereafter, he filed his conscientious objector claim. In the special form, petitioner included this statement : “The nature of my claim is that: I am already in the Army of Christ Jesus serving as a soldier of Jehovah’s appointed Commander Jesus Christ. (2 Tim. 2:3 & 4). Inasmuch as the war weapons of the soldier of Jesus Christ are not carnal, I am not authorized by his Commander to engage in carnal warfare of this world. (2 Corinthians 10:3 & 4, Ephesians 6:11-18) Furthermore being enlisted in the army of Jesus Christ, I cannot desert the forces of Jehovah to assume the obligations of a soldier in any army of this world without being guilty of desertion and suffering the punishment meted out to deserters by Almighty God. . . .” In answer to the question, “Under what circumstances, if any, do you believe in the use of force,” he wrote: “Only in the interests of defending Kingdom Interests, our preaching work, our meetings, our fellow brethren and sisters and our property against attack. I (as well as all Jehovah's Witnesses) defend those when they are attacked and are forced to protect such interests and scripturally so. Because in doing so we do not arm ourselves or carry carnal weapons in anticipation of or in preparation for trouble or to meet threats. In doing so I try to ward off blows and attacks only in defense. I do not use weapons of warfare in defense of myself or the Kingdom interests. I do not retreat when attacked in my home or at meeting places, but will retreat on public or other property and shake the dust off my feet; so not giving what is holy to dogs and not throwing my pearls before swine. (Matthew 10:14 & 7:6) So I retreat when I can do so and avoid a fight or trouble. Also following the admonition at Acts 24:16; which states ‘In this respect, indeed, I am exercising myself continually to have a consciousness of committing no offense against God and man.’ ” Upon a denial of this claim by the local Board, petitioner appealed and his file was referred to the Department of Justice. It appears that the report of the Federal Bureau of Investigation contained nothing unfavorable to petitioner’s claim, and the hearing officer concluded that petitioner should be classified as a conscientious objector. In advising the Department of Justice, the hearing officer wrote that he “was convinced that [petitioner] has sincere objections to military service by reason of his religious training and beliefs.” The Department of Justice, although admitting that the investigation was favorable to petitioner, recommended to the Appeal Board that petitioner’s claim be denied on the ground that “While the registrant may be sincere in the beliefs he has expressed, he has, however, failed to establish that he is opposed to war in any form. As indicated by the statements on his SSS Form No. 150, registrant will fight under some circumstances, namely in defense of his ministry, Kingdom Interests, and in defense of his fellow brethren. He is, therefore, not entitled to exemption within the meaning of the Act.” The Appeal Board retained petitioner in his I-A classification, and thereafter, when duly ordered to report, he refused to submit to induction. This prosecution followed and the Seventh Circuit affirmed petitioner’s conviction. 213 F. 2d 911. We granted certiorari. 348 U. S. 812. In this case, unlike Witmer, ante, p. 375, it is admitted that petitioner is sincere; we are therefore relieved of the task of searching the record for basis in fact to support a finding of insincerity. The only question presented in this case is one of law — do the beliefs which petitioner says he holds amount to the conscientious opposition to “participation in war in any form” demanded by Congress as a prerequisite to the conscientious objector deferment? Stated in the light of the background, the question at issue is whether a registrant under the Universal Military Training and Service Act, who is admittedly a sincere Jehovah’s Witness and conscientious objector to participation in war, but who believes in the use of force in defending “his ministry, Kingdom interests and ... his fellow brethren,” is entitled to exemption under § 6 (j) of the Act from service in the armed forces. The Government insists that petitioner’s statements reveal qualified and varied objection to war — and that “petitioner’s willingness to fight in defense of ‘Kingdom Interests’, particularly when those words are considered in the light of the teachings of his sect, . . .” is clearly not opposition to war in any form. The Government does not contend that the petitioner’s belief in the use of force in self-defense, as well as the defense of his home, family and associates, is so inconsistent with his claim of conscientious objection as to serve as a basis for a denial of his claim. The question here narrows to whether the willingness to use of force in defense of Kingdom interests and brethren is sufficiently inconsistent with petitioner’s claim as to justify the conclusion that he fell short of being a conscientious objector. Throughout his selective service form, petitioner emphasized that the weapons of his warfare were spiritual, not carnal. He asserted that he was a soldier in the Army of Jesus Christ and that “the war weapons of the soldier of Jesus Christ are not carnal.” With reference to the defense of his ministry, his brethren and Kingdom interests, he asserted that “we do not arm ourselves or carry carnal weapons .... I do not use weapons of warfare in defense ... of Kingdom interests . . . .” In letters to the local Board he reiterated these beliefs. On their face, these statements make it clear that petitioner’s defense of “Kingdom Interests” has neither the bark nor the bite of war as we unfortunately know it today. It is difficult for us to believe that the Congress had in mind this type of activity when it said the thrust of conscientious objection must go to “participation in war in any form.” But the Government urges that these statements of petitioner must be taken in the light of the teachings of Jehovah’s Witnesses. While each case must of necessity be based on the particular beliefs of the individual registrant, it is true that the Congress, by relating the registrant’s conscientious objection to his religious training and belief, has made the belief of his sect relevant. Moreover, the petitioner does parenthetically say that his belief in the use of force was “as well . . . [the belief of] all Jehovah’s Witnesses.” On the other hand, though the Government has appended to its brief a copy of the Watchtower magazine of February 1, 1951, we do not find any such literature in the record. It is not at all clear that we may consider such material outside the record to support an Appeal Board decision, cf. Cox v. United States, 332 U. S. 442, 453-455 (1947), but we need not decide that here because in any event there is no substance to the Government’s contention. Granting that these articles picture Jehovah’s Witnesses as antipacifists, extolling the ancient wars of the Israelites and ready to engage in a “theocratic war” if Jehovah so commands them, and granting that the Jehovah’s Witnesses will fight at Armageddon, we do not feel this is enough. The test is not whether the registrant is opposed to all war, but whether he is opposed, on religious grounds, to participation in war. As to theocratic war, petitioner’s willingness to fight on the orders of Jehovah is tempered by the fact that, so far as we know, their history records no such command since Biblical times and their theology does not appear to contemplate one in the future. And although the Jehovah’s Witnesses may fight in the Armageddon, we are not able to stretch our imagination to the point of believing that the yardstick of the Congress includes within its measure such spiritual wars between the powers of good and evil where the Jehovah’s Witnesses, if they participate, will do so without carnal weapons. We believe that Congress had in mind real shooting wars when it referred to participation in war in any form — actual military conflicts between nations of the earth in our time-r-wars with bombs and bullets, tanks, planes and rockets. We believe the reasoning of the Government in denying petitioner’s claim is so far removed from any possible congressional intent that it is erroneous as a matter of law. The Court of Appeals also rested its decision on the conclusion that petitioner’s objection to participation in war was only a facet of his real objection to all governmental authority. We believe, however, that if the requisite objection to participation in war exists, it makes no difference that a registrant also claims, on religious grounds, other exemptions which are not covered by the Act. Once he comes within § 6 (j), he does not forfeit its coverage because of his other beliefs which may extend beyond the exemption granted by Congress. The Government also contends, apparently for the first time, that petitioner objects to “participation in war in any form,” if in fact he does, not from a feeling that it is wrong to participate in war but because such participation will require time which petitioner feels should be devoted to his religious activities. In its memorandum indicating its lack of opposition to certiorari, the Government gave no hint that it considered such an issue in the case, and it is unnecessary for us to consider it here. The report of the Department of Justice to the Appeal Board clearly bases its recommendation on petitioner’s willingness to “fight under some circumstances, namely in defense of his ministry, Kingdom Interests, and in defense of his fellow brethren,” and we feel that this error of law by the Department, to which the Appeal Board might naturally look for guidance on such questions, must vitiate the entire proceedings at least where it is not clear that the Board relied on some legitimate ground. Here, where it is impossible to determine on exactly which grounds the Appeal Board decided, the integrity of the Selective Service System demands, at least, that the Government not recommend illegal grounds. There is an impressive body of lower court cases taking this position and we believe that they state the correct rule. Cf. United States ex rel. Levy v. Cain, 149 F. 2d 338, 342 (C. A. 2d Cir. 1945); United States v. Balogh, 157 F. 2d 939, 943-944 (C. A. 2d Cir. 1946), judgment vacated on other grounds, 329 U. S. 692; United States v. Everngam, 102 F. Supp. 128 (S. D. W. Va. 1951). The decision below is therefore Reversed. In United States v. Taffs, in which we denied certiorari, 347 U. S. 928, the Government admitted as much in its petition. Its admission here does not extend to the category “brethren” which was not used in Taffs. 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_procedur	B	What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant. DUDLEY v. COMMUNITY PUBLIC SERVICE CO. et al. No. 9254. Circuit Court of Appeals, Fifth Circuit Dec. 6, 1939. Rehearing Denied Jan. 15, 1940. Russel H. Markwell, of Galveston, Tex.,, for appellant. Brantly Harris and M. L. Cook, both of Galveston, Tex., for appellees. Before FOSTER, SIBLEY, and Me-" CORD, Circuit Judges. SIBLEY, Circuit Judge." The plaintiff-app’ellants, widow and dependent child of J. T. Dudley, sued Community Public Service Company and P. J. Short, its line construction superintendent and foreman, for the homicide of Dudley-through gross negligence, claiming $50,000' exemplary damages under Art. 16, Sec. 26, of the Constitution of Texas. Vernon’s. Ann.St. The Company removed the suit, to the federal court on allegations that plaintiffs and Short are citizens of Texas-but itself is a corporation of Delaware, and that as plaintiffs well knew it was insured under the Texas Workmen’s Compensation Law, Vernon’s Ann.Civ.St.Tex. art. 8306-et seq., by the provisions of which there is. no right of action against a co-employe for injury or death; so there could be no right of action against Short, and he was joined fraudulently to prevent removal; and moreover the petition showed on its face that the negligence alleged against Short was mere non-feasance which would not render him liable to suit, but his master alone would be liable therefor. The plaintiffs moved to remand, denying fraudulent joinder and asserting a bona fide demand against Short, but not denying that the Company was under the Compensation Law. Evidence was offered tending to show that Short was foreman over Dudley, present and directing the work in hand when Dudley was electrocuted by some of the equipment coming into contact with a power wire of the Company beneath which they were working. Remand was denied. Plaintiffs refused to proceed, denying the jurisdiction of the court, and the court dismissed the action expressly pursuant to Rule of Civil Procedure 41 (b) 28 U.S.C.A. following section 723c. The appeal specifies as error the dismissal and the refusal to remand. The dismissal for failure to prosecute was of course not error if the court had jurisdiction of the case. There was nothing else for the court to do. It is, however, a final judgment disposing of the action and is appealable, and serves to bring under review the refusal to remand which is the real matter of complaint. Gay v. Ruff, 292 U.S. 25, 54 S.Ct. 608, 78 L.Ed. 1099, 92 A.L.R. 970, affirming 5 Cir., 67 F.2d 684. On its face the action was not removable. It was a joint suit against a master and an agent or servant in charge of the work for negligence alleged to be gross in the conduct of the work, causing the electrocution of Dudley. According to the petition Short was not only the vice-principal of the master, charged with the safety of the equipment and tools, with the instruction of workmen, with the hiring and discharge of the workmen, and supervision of the construction work in hand, but was also at work as foreman over Dudley. Short, Dudley, and four others, under Short’s direction and control, were replacing a pole under a power wire, using a truck equipped with a crane to raise the pole. Short did not de-energize the power wire, or provide any safeguard against the pole touching it, or warn Dudley or instruct him about the danger. The pole touched the wire and the current killed Dudley, who was working about the truck. The formal charges of negligence include the failures to have proper equipment, to de-energize the power line, to warn Dudley, to ground the truck, to have rope guards to prevent the pole touching the wire, and negligence “in requiring the deceased to work in and around a power line energized with 11000 volts at a time when the ground was damp and other conditions were such as to render the work extremely hazardous, without taking any precaution for the safety of the deceased.” We think it fairly appears that Short was active in the whole transaction, that he chose the time and place and manner of the work and directed Dudley what to do, himself assisting. This is not mere non-feasance, which is doing nothing; but it is misfeasance, the doing of things in a wrong and negligent manner, without the care and precaution that would have made safe what he ordered and did. Short might be held personally liable. Kenney v. Lane, 9 Tex.Civ.App. 150, 36 S.W. 1063; Ellis v. McNaughton, 76 Mich. 237, 42 N.W. 1113, 15 Am.St.Rep. 308; Lough v. Davis & Co., 30 Wash. 204, 70 P. 491, 59 L.R.A. 802, 94 Am.St.Rep. 848; Osborne v. Morgan, 130 Mass. 102, 39 Am.Rep. 437. But we must take as true the fact, not stated in the petition but squarely asserted in the removal proceedings and not denied in the motion to remand or in the evidence introduced, that this work was proceeding under the Texas Workmen’s Compensation Law. Texas Rev.Stats. Art. 8306. Section 3 as amended provides: “The employés of a subscriber * * * shall have no fight of action against their employer or against any agent, servant or employe of said employer for damages for personal injuries, and the representatives and beneficiaries of deceased employés shall have no right of action against such subscribing employer or his agent, servant or employé for damages for injuries resulting in death.” The general purpose is plain to confine an injured employe, or the representatives of one who is killed in the employment, to the compensation provided by the Act. If this were the whole applicable law, Dudley’s representatives could sue neither Short nor the common employer. But the Constitution of 1875, Art. 16, Sect. 26, provides: “Every person, corporation or company, that may commit a homicide, through wilful act, or omission, or gross neglect, shall be responsible, in exemplary damages, to the surviving husband, widow, heirs of his or her body, or such of them as there may be, without regard to any criminal proceeding that may or may not be had in relation, to the homicide.” In view of this constitutional provision the Compensation Law in Sect. 5 declared: “Nothing in this law shall be taken or held to prohibit the recovery of exemplary damages” in the cases set forth in the Constitution “from the employer of such employe at the time of the injury causing the death of the latter.” In recent cases where exemplary damages were sought against the employer the Supreme Court of Texas has sustained the suits, holding that compensatory damages were substituted by the statutory compensation, but the exemplary damages which before the Compensation Law might have been recovered in addition were still recoverable when the conditions formerly requisite were met. In Fort Worth Elevators Co. v. Russell, 123 Tex. 128, 70 S.W.2d 397, 408, it was said of the Compensation Law: “The Legislature realized it could not abolish the constitutional right to recover exemplary damages for a homicide due to ‘gross neglect,’ and was particular to exempt that class of damages from the purview of. the act. R.S. art. 8306, § 5. Its purpose was to leave the law as to exemplary damages the same as it was before the passage of the compensation act. Trinity County Lumber Co. v. Ocean A. & G. Co. (Tex.Com.App.) 228 S.W. 114.” Enlarging on the idea that the old law of exemplary damages was unchanged the court said: “The rule in Texas is that exemplary damages cannot be recovered unless the plaintiff is shown to have sustained actual loss or injury. There can be no recovery of exemplary damages in the absence of a recovery of actual damages. A verdict of nominal actual damages is not sufficient. * * * In this case actual damages are not recoverable because the plaintiff in error carried workmen’s compensation insurance. However, we do not believe that the compensation act changes the rule. We are of the opinion that in order to recover exemplary damages the plaintiff must show himself entitled to recover actual damages, and which he would recover but for the compensation act.” In the companion case, Morton Salt Co. v. Wells, 123 Tex. 151, 70 S.W.2d 409, 410, the court said: “We agree * * * that the district court had original jurisdiction, without the presentation of the claim'for exemplary damages to the Indústrial Accident Board. The cause of action here asserted is one given by the Constitution, and the Legislature was without power to add to or take from the conditions under which, by virtue of the Constitution, it could be maintained, nor did it attempt to do so.” In the cited cases it was the employer who was sued for exemplary damages. No case is found in the Texas courts where, as in the present case, a fellow employe was sued. We are of opinion that the Legislature was without power, and did not attempt, to change the right under the Constitution to recover exemplary damages from a fellow employe, just as was held to be true of such a suit against the employer. As at first enacted the Compensation Law, Laws 1917, p. 269, Sect. 3, withdrew the right of action only against employers covered by it for injury or death of an employe, and in Sect. 5 expressly preserved the constitutional right to exemplary damages for death against the employer. In 1923 the Legislature amended Sec. 3 so as to withdraw also the right of action for injury or death against a fellow employe. It made no corresponding change in Sec. 5 to preserve the constitutional right to exemplary damages against the fellow employe. Whether this was due to oversight or intention may be debatable. An intent to override a constitutional right by indirection, towit, by abolishing the right to actual damages so as to destroy also the constitutional right to exemplary damages, ought not to be imputed to the Legislature. If Sect. 5, had never been included the construction of the Act under the Constitution should have been that which has been made in the case of the employer: that the constitutional right to recover exemplary damages stands as before, and that actual damages must be proved as before, though they are not recoverable because substituted by the compensation fixed by the Act. The statutory compensation substitutes the actual damages formerly recoverable from the fellow employe at fault exactly as it does those formerly recoverable from the employer. The result ought to be the same in both cla.sses of suits for the constitutional exemplary damages. If it were held otherwise, the policy of the Constitution to punish homicides by exemplary damages would be defeated in the. cases where the real culprit was a fellow employe, or where his malice or gross neglect cannot be imputed to the master as respects exemplary damages because he was not a vice principal. We therefore hold that on the allegations of the petition there appears to be a probable case in law against Short, as well as against the Community Public Service Company, notwithstanding the application to them of the Compensation Act. By consequence it does not appear that Short was fraudulently joined. See Chesapeake & Ohio Ry. Co. v. Cockrell, 232 U.S. 146, 34 S.Ct. 278, 58 L.Ed. 544. That the defeat of removal might have been a motive in joining Short is not important, if in good faith he is sought to be held liable. Mecom v. Fitzsimmons Drilling Co., 284 U.S. 183, 52 S.Ct. 84, 76 L.Ed. 233, 77 A.L.R. 904, and cases cited. Though for lack of an exac.t precedent there may be doubt whether Short is legally liable, that would not render his joinder fraudulent. Morris v. E. I. Dupont Co., 8 Cir., 68 F.2d 788; Wells v. Missouri Pac. R. Co., 8 Cir., 87 F. 2d 579. The case ought to have beeii remanded for trial in the State courts. The judgment of dismissal is reversed, with direction to remand the cause. Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_procedur	D	What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant. KRAUS et al. v. NEWMAN et al. No. 133, Docket 21526. United States Court of Appeals Second Circuit. Argued Dec. 12, 1949. Decided Dec. 16, 1949. Harry Price, New York City, for appellants, E. H. Shappiro, New York City, W. Lee Helms, New York City, for appellees. Before AUGUSTUS N. HAND, CHASE and CLARK, Circuit Judges. PER CURIAM. There is nothing in the design patent that indicates an artistic development of any kind, or any ingenuity. The mechanical patent is no better. Plenty of prior art has been submitted which, if not anticipatory, is sufficient to deprive the plaintiffs of any right to claim that they have produced anything beyond the capacity of the most routine mechanic who chose to feed his marbles from the bottom rather than the top of the chick. As for the claim of unfair competition, the plaintiffs’ chickens seem to have acquired no secondary meaning as to source, and there was no proof of palming off. The period between the defendants’ merchandising its copies of the plaintiffs’ chickens, and the time when plaintiffs placed them on the market was only about four or five months. There was no advertising justifying a claim that the defendants’ copies were believed to emanate from the plaintiffs or indicating confusion with the latter’s goods. Affidavits from interested sources ought not to support a monopoly based on a theory of unfair competition within such a short time after the plaintiffs’ chicks appeared on the market. Without substantial proof of secondary meaning there is no likelihood the purchasing public cared anything about the source of the goods. This was clearly no case for a preliminary injunction. The order for a preliminary injunction is accordingly reversed. In respect to the motion by the defendants to restrain the plaintiffs’ threats, they apparently related to a different product, to wit, a goose and not a chicken. On the record before us the order denying the defendants’ motion is affirmed without prejudice to the renewal of the motion in the District Court if the plaintiffs should hereafter issue any improper threats to defendants or its customers. Mandate to issue forthwith. 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_genresp1	A	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed respondent. MAXWELL, Commissioner of Revenue of North Carolina, v. SHELL EASTERN PETROLEUM PRODUCTS, Inc. No. 4157. Circuit Court of Appeals, Fourth Circuit. May 4, 1937. Harry McMullan and A. A. F. Seawell, both of Raleigh, N. C., for appellant. Jones Fuller, of Durham, N. C., and Lee Van Roberts, of New York City (R. P. Reade and F. L. Fuller, Jr., both of Durham, N. C., on the brief), for appellee. Before PARKER, NORTHCOTT, and SOPER, Circuit Judges. SOPER, Circuit Judge. Shell Eastern Petroleum Products, Inc., a Delaware corporation, sued in this case to recover from Allen J. Maxwell, Commissioner of Revenue of the state of North Carolina, the sum of $9,000 paid by it under protest as license taxes for the year beginning June 1, 1935, on 130 gasoline and oil filling stations in the state. The case was submitted to the District, Judge without a jury upon an agreed statement of facts, and resulted in a judgment for the plaintiff for the amount claimed. The Commissioner appealed on the ground that the sum was properly collected under the state law. The license taxes were demanded by the commissioner on the ground that the taxpayer was engaged in the business of operating or maintaining in the state 160 automotive service stations, as described in section 162% of an Act of the General Assembly of North Carolina of 1935, c. 371, § 7880 (93)a of the North Carolina Code of 1935, which is as follows: “Every person * * * engaged in the business of operating or maintaining in this State, under the same general management, supervision or ownership, two or more automotive service stations, or engaged in the business of retail selling and/or delivering of any tires, * * * or motor fuels and/or lubricants, or any of such commodities, or who controls by lease either a lessor or lessee, or by contract, the manner in which any such automotive service station is operated, or the kind or kinds, character or brand or brands of merchandise which are sold therein, shall be deemed a branch or chain automotive service station operator, and shall apply for and obtain from the commissioner of revenue a state license for the purpose of engaging in such business of' a branch or chain automotive service station operator, and shall pay for such license a tax according to the following schedule.” The rates in the annexed schedule require the payment of an annual tax of $715 on 30 stations and $9,715 on 160 stations. The taxpayer, admitting liability for 30 stations owned or operated by it, paid the tax thereon, but denied liability for the additional 130 stations and paid the additional sum under protest. The relationship of the oil company to the 130 stations in dispute was shown by the agreed statement of facts. All of the stations were owned or held under lease by the oil company, but, prior to the beginning of the tax year, were leased or sublet by it to 130 different firms or corporations, called dealers or operators herein, who were actually connected with or engaged in the operation of the stations. In the case of each station, the oil company and the dealer executed a lease, a sales contract, and a rider to the sales contract; and the rights of the operator in the premises were derived entirely through such -lease. In each instance the lease provided for a term of not less than 1 year, nor more than 18 months, unless the oil company itself was a tenant of the premises for a term, in which case the term of the sublease was for the duration of the term of the original lease. The oil company had no right to cancel the lease during the term except for failure on the part of the lessee to perform his covenants. The lessee had no right to assign the lease or to sublet any part of the premises or make any alteration therein without the written permission of the lessor, and the lessee was obliged at the expiration of the term to surrender the premises to. the lessor. The lease covered the premises, the improvements thereon, and all equipment and apparatus used in connection with the service station, including pumps and other equipment listed on an annexed schedule. In each case the lease provided for the payment of a fixed monthly rental not exceeding in amount the fair rental value of the premises.; but subsequently in many instances the lessor voluntarily reduced the amount of the rent. In other instances the contract of lease was voluntarily modified by an agreement on the part of the lessor to accept in lieu of the specified rental, until further notice, a rental at the rate of a stated sum for each gallon of gasoline delivered into the storage tanks on the premises, the rent to be paid at the time of each delivery, with the provision, however, that the monthly rental should not be less than a stated number of dollars regardless of the number of gallons actually delivered. The lessee had the privilege in case of notice of revocation of the modification of the lease of terminating the lease on 30 days’ notice in writing. In no case was cancellation attempted by the lessor or the lessee during the tax year. The dealer’s sales contract, executed contemporaneously with the lease, provided, that the oil company should sell to the dealer, and the dealer should purchase from the company, the dealer’s requirements of Shell gasolines, motor oils, and greases. The prices to be paid for products were Shell’s posted dealers’ prices for the Shell’s sales area' in which the station is located, as shown on the schedule of prices posted at the Shell bulk depot from which deliveries were to be made. The dealer was required to pay cash on delivery. Provision was made for honoring credit cards issued to purchasers by the Shell Company. The Company was authorized from time to time to place upon the station its usual advertising signs and to enter upon the premises for the purpose of altering, repairing or removing the same, the signs remaining its property. The dealer was forbidden to alter or remove any such sign without the written consent of the company and agreed at the termination of the contract to surrender the signs in good condition. The company retained the right to enter upon the station premises in order to paint the buildings and other structures so as to obliterate colors identifying previous suppliers, and for the purpose of painting the 'pumps through which the Shell products are sold; and the dealer agreed at the termination of the agreement to obliterate Shell’s identifying colors of yellow and red. The agreement was to remain in effect from year to year, provided, however, that the dealer might terminate it at the end of any year by 30 days’ notice in writing, and that the company might terminate it at any time by giving 10 days’ notice in writing to the dealer. In all cases where the sales contract provided that the operator should purchase all of his requirements of Shell’s products from the taxpayer, the contract was modified prior to June 1, 1935, the beginning of the tax year, so as to eliminate said requirement from the contract, and in lieu thereof was substituted an agreement that the dealer should purchase from the company not less and not more than a stated number of gallons per annum. In each instance where the rider was attached, the minimum amount of products which the dealer agreed to purchase represented approximately 50 per cent, of the dealer’s yearly requirements of such products for sale at his station. All of the 130 service stations and the Shell pumps and equipment thereon were painted in yellow and red, the identifying colors of Shell, and carried the usual Shell advertising signs, and none of the stations were painted with the identifying colors of any other company engaged in a similar business or advertised the sale of any competing product. -Throughout the tax year all of the stations sold Shell gasoline and lubricating oils and greases and none of them sold the products of any other competing company. Two gasoline pumps were used at each of the filling stations and, at some of the stations, more than two pumps. They were affixed to the premises in the manner common to filling stations and connected with gasoline storage tanks buried beneath the ground. In most instances the station was equipped with a concrete driveway underneath which the tanks were placed. The pumps and tanks in every case belonged to the Shell Company. The cost of installation at each station approximated $35. The cost of removal would be approximately $15, unless the tank was placed under concrete, in which case the cost of removal would be $24. The particular provision of the statute which must be construed in connection with the circumstances disclosed is that which declares that every person “who controls by lease either a lessor or lessee, or by contract, the manner in which any such automotive service station is operated, or the kind or kinds, character, or brand or brands of merchandise which are sold therein, shall be deemed a branch or chain automotive service station operator.” The statute further refers to the matter 'of control in the provision that nothing in the statute shall be construed as placing the license tax on lessors or sublessors of such automotive service stations “who have no control over the operation or management thereof and do not control or restrict the kind or kinds, character, brand or brands of merchandise or price of said brands of merchandise sold or offered for sale therein either in the lease, sub-lease, or by separate contract.” In aid of the interpretation of the statute, the decisions in Gulf Refining Co. v. Fox (D.C.) 11 F.Supp. 425, and Ashland Refining Co. v. Fox (D.C.) 11 F.Supp. 431, affirmed in 297 U.S. 381, 56 S.Ct. 510, 80 L.Ed. 731, are of value. The West Virginia Chain Store Act (Acts W.Va.1933, c. 36) imposed license fees in a graduated scale upon every person who operated or maintained one or more stores under the same general management, supervision, or ownership and declared that the word “store” should be construed to mean and include any store or mercantile establishment owned, operated, maintained, or controlled by the same person. In the cases cited, each filling station was conducted by a dealer under an arrangement with the oil company which included a lease of the premises from the dealer to the company, a license from the company to the dealers to handle its products, and a contract for the sale of the product by the company to the dealer. The company did not exercise full control over the dealer in the strict-legal sense, but it had a control sufficient to enable it to enjoy the advantages of a chain store system, because it retained the right to cancel the license agreement and to put an end to the business relation between the parties and at the same time to retain possession of the premises under the 'lease. Hence it was held that the control contemplated by the statute existed and that the oil company was subject to the tax. In the pending case the taxpayer contends that it lacks the control indicated by the statute because it cannot dictate the kind of goods that are to be sold at the service stations or the price to be charged therefor; and also because it has no power to cancel the lease of any station during the term. It points out that the dealer is required to buy only 50 per cent, of its requirements of Shell products from the taxpayer; that the price to be paid for these products is fixed by the contract; that there is no restriction upon the price for which they may be resold by the dealer; and that the dealer is not prohibited from the sale of the goods of other oil companies. It is conceded that the dealer may terminate the sales contract only on the expiration thereof, and that the Shell Company may terminate it at any time by giving 10 days’ written notice to the dealer; but nevertheless the cancellation of the sales contract does not entail the cancellation of the lease and the dealer remains in possession of the premises and may engage during the remainder of his tenancy in the sale of other oil products. For this purpose he may make use of the gasoline pumps upon the premises during the term of the lease, provided only that he changes the color of the equipment by obliterating the yellow and ¡red Shell colors. Moreover, the Shell Company retains no right to direct the actual ■operation of the filling station either as to the advertising by the dealer or as to his books and records, or by otherwise supervising or seeking .to exercise control. Notwithstanding these circumstances, it is a significant fact that during the whole of the tax year, not a single one of the 130 service stations under consideration made any attempt to sell the product of any other oil company, but in every instance'continued throughout the year with the distinctive Shell colors and sold the Shell products exclusively. It seems clear that this course of conduct was not fortuitous, but was brought about by the control over the premises which the Shell Company exercised through its ownership or tenancy thereof, and through the agreements between it and the dealer. It is a reasonable inference that in each instance the dealer entered into the contracts of lease and sale, involving the painting of the premises with the distinctive colors, and the agreement to purchase at least 50 per cent, of its Shell requirements from the company, with the purpose at the time of becoming a dealer in Shell products and of selling them exclusively at the station during the period of his tenancy. It was obvious to the parties to the agreements that no other oil company would be willing to sell its product at a Shell station; and indeed, if the Shell pumps and equipment were used, such sales would have been contrary to section 4870 (h) of the North Carolina Code of 1935, which forbids any person to sell any liquid fuels, lubricating oils, or similar products from any , container, pump, or other distributing device than those indicated by the name, trade-mark, or other distinguishing mark appearing thereon. The sales contract provided that all of the advertising signs should remain the property of the Shell Company and that the dealer should not alter or remove them without the company’s consent. Moreover, the company had the right under the contract from time to time to enter upon the premises and paint out the identifying colors of previous suppliers of the dealer, and to paint the station and the pumps with its identifying colors of yellow and red. This control effectually prevented the use Of the station or equipment for the sale of a competing product. For another important reason, the use of the station for the distribution of the products of other oil companies was rendered impracticable by the arrangement between the parties. The Shell Company controlled the premises as owner or as tenant of the owner; and rival producers, knowing that it would not be possible for them to obtain permanent possession, would be unwilling to incur the expense of a temporary arrangement with the dealer for the sale of their products. The taxpayer has but made another attempt to evade the burden of chain store taxation while retaining the advantages that flow from the operation of many places of distribution of its products under its general control. Previous efforts to accomplish the same result were under attack in Fox v. Gulf Refining Co., 295 U.S. 75, 55 S.Ct. 641, 79 L.Ed. 1311, and it was evidently the purpose of meeting the criticism there offered that led to the modification of the contracts in the pending case before the beginning of the tax year. We are of opinion, however, as the actual experience during the tax year demonstrates, that no substantial alteration was brought about and that the stations in question were actually within the control of the taxpayer as lessor of the premises within the true meaning of the statute. The judgment of the District Court must therefore be reversed. Question: What is the nature of the first listed respondent? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:
sc_petitioner	003	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the petitioner of the case. The petitioner is the party who petitioned the Supreme Court to review the case. This party is variously known as the petitioner or the appellant. Characterize the petitioner as the Court's opinion identifies them. Identify the petitioner by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer. Also note that the Court's characterization of the parties applies whether the petitioner is actually single entity or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single petitioner, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name. TOWN OF GREECE, NEW YORK, Petitioner v. Susan GALLOWAY et al. No. 12-696. Supreme Court of the United States Argued Nov. 6, 2013. Decided May 5, 2014. Syllabus* Since 1999, the monthly town board meetings in Greece, New York, have opened with a roll call, a recitation of the Pledge of Allegiance, and a prayer given by clergy selected from the congregations listed in a local directory. While the prayer program is open to all creeds, nearly all of the local congregations are Christian; thus, nearly all of the participating prayer givers have been too. Respondents, citizens who attend meetings to speak on local issues, filed suit, alleging that the town violated the First Amendment's Establishment Clause by preferring Christians over other prayer givers and by sponsoring sectarian prayers. They sought to limit the town to "inclusive and ecumenical" prayers that referred only to a "generic God." The District Court upheld the prayer practice on summary judgment, finding no impermissible preference for Christianity; concluding that the Christian identity of most of the prayer givers reflected the predominantly Christian character of the town's congregations, not an official policy or practice of discriminating against minority faiths; finding that the First Amendment did not require Greece to invite clergy from congregations beyond its borders to achieve religious diversity; and rejecting the theory that legislative prayer must be nonsectarian. The Second Circuit reversed, holding that some aspects of the prayer program, viewed in their totality by a reasonable observer, conveyed the message that Greece was endorsing Christianity. Held: The judgment is reversed. 681 F.3d 20, reversed. Justice KENNEDY delivered the opinion of the Court, except as to Part II-B, concluding that the town's prayer practice does not violate the Establishment Clause. Pp. 1818 - 1825. (a) Legislative prayer, while religious in nature, has long been understood as compatible with the Establishment Clause. Marsh v. Chambers, 463 U.S. 783, 792, 103 S.Ct. 3330, 77 L.Ed.2d 1019. In Marsh, the Court concluded that it was not necessary to define the Establishment Clause's precise boundary in order to uphold Nebraska's practice of employing a legislative chaplain because history supported the conclusion that the specific practice was permitted. The First Congress voted to appoint and pay official chaplains shortly after approving language for the First Amendment, and both Houses have maintained the office virtually uninterrupted since then. See id., at 787-789, and n. 10, 103 S.Ct. 3330. A majority of the States have also had a consistent practice of legislative prayer. Id., at 788-790, and n. 11, 103 S.Ct. 3330. There is historical precedent for the practice of opening local legislative meetings with prayer as well. Marsh teaches that the Establishment Clause must be interpreted "by reference to historical practices and understandings." County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 573, 670, 109 S.Ct. 3086, 106 L.Ed.2d 472 (opinion of KENNEDY, J.). Thus, any test must acknowledge a practice that was accepted by the Framers and has withstood the critical scrutiny of time and political change. The Court's inquiry, then, must be to determine whether the prayer practice in the town of Greece fits within the tradition long followed in Congress and the state legislatures. Pp. 1818 - 1820. (b) Respondents' insistence on nonsectarian prayer is not consistent with this tradition. The prayers in Marsh were consistent with the First Amendment not because they espoused only a generic theism but because the Nation's history and tradition have shown that prayer in this limited context could "coexis[t] with the principles of disestablishment and religious freedom." 463 U.S., at 786, 103 S.Ct. 3330. Dictum in County of Allegheny suggesting that Marsh permitted only prayer with no overtly Christian references is irreconcilable with the facts, holding, and reasoning of Marsh, which instructed that the "content of the prayer is not of concern to judges," provided "there is no indication that the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief." 463 U.S., at 794-795, 103 S.Ct. 3330. To hold that invocations must be nonsectarian would force the legislatures sponsoring prayers and the courts deciding these cases to act as supervisors and censors of religious speech, thus involving government in religious matters to a far greater degree than is the case under the town's current practice of neither editing nor approving prayers in advance nor criticizing their content after the fact. Respondents' contrary arguments are unpersuasive. It is doubtful that consensus could be reached as to what qualifies as a generic or nonsectarian prayer. It would also be unwise to conclude that only those religious words acceptable to the majority are permissible, for the First Amendment is not a majority rule and government may not seek to define permissible categories of religious speech. In rejecting the suggestion that legislative prayer must be nonsectarian, the Court does not imply that no constraints remain on its content. The relevant constraint derives from the prayer's place at the opening of legislative sessions, where it is meant to lend gravity to the occasion and reflect values long part of the Nation's heritage. From the Nation's earliest days, invocations have been addressed to assemblies comprising many different creeds, striving for the idea that people of many faiths may be united in a community of tolerance and devotion, even if they disagree as to religious doctrine. The prayers delivered in Greece do not fall outside this tradition. They may have invoked, e.g., the name of Jesus, but they also invoked universal themes, e.g., by calling for a "spirit of cooperation." Absent a pattern of prayers that over time denigrate, proselytize, or betray an impermissible government purpose, a challenge based solely on the content of a particular prayer will not likely establish a constitutional violation. See 463 U.S., at 794-795, 103 S.Ct. 3330. Finally, so long as the town maintains a policy of nondiscrimination, the Constitution does not require it to search beyond its borders for non-Christian prayer givers in an effort to achieve religious balancing. Pp. 1819 - 1825. Justice KENNEDY, joined by THE CHIEF JUSTICE and Justice ALITO, concluded in Part II-B that a fact-sensitive inquiry that considers both the setting in which the prayer arises and the audience to whom it is directed shows that the town is not coercing its citizens to engage in a religious observance. The prayer opportunity is evaluated against the backdrop of a historical practice showing that prayer has become part of the Nation's heritage and tradition. It is presumed that the reasonable observer is acquainted with this tradition and understands that its purposes are to lend gravity to public proceedings and to acknowledge the place religion holds in the lives of many private citizens. Furthermore, the principal audience for these invocations is not the public, but the lawmakers themselves. And those lawmakers did not direct the public to participate, single out dissidents for opprobrium, or indicate that their decisions might be influenced by a person's acquiescence in the prayer opportunity. Respondents claim that the prayers gave them offense and made them feel excluded and disrespected, but offense does not equate to coercion. In contrast to Lee v. Weisman, 505 U.S. 577, 112 S.Ct. 2649, 120 L.Ed.2d 467, where the Court found coercive a religious invocation at a high school graduation, id., at 592-594, 112 S.Ct. 2649, the record here does not suggest that citizens are dissuaded from leaving the meeting room during the prayer, arriving late, or making a later protest. That the prayer in Greece is delivered during the opening ceremonial portion of the town's meeting, not the policymaking portion, also suggests that its purpose and effect are to acknowledge religious leaders and their institutions, not to exclude or coerce nonbelievers. Pp. 1824 - 1828. Justice THOMAS, joined by Justice SCALIA as to Part II, agreed that the town's prayer practice does not violate the Establishment Clause, but concluded that, even if the Establishment Clause were properly incorporated against the States through the Fourteenth Amendment, the Clause is not violated by the kind of subtle pressures respondents allegedly suffered, which do not amount to actual legal coercion. The municipal prayers in this case bear no resemblance to the coercive state establishments that existed at the founding, which exercised government power in order to exact financial support of the church, compel religious observance, or control religious doctrine. Pp. 1815 - 1819. KENNEDY, J., delivered the opinion of the Court, except as to Part II-B. ROBERTS, C.J., and ALITO, J., joined the opinion in full, and SCALIA and THOMAS, JJ., joined except as to Part II-B. ALITO, J., filed a concurring opinion, in which SCALIA, J., joined. THOMAS, J., filed an opinion concurring in part and concurring in the judgment, in which SCALIA, J., joined as to Part II. BREYER, J., filed a dissenting opinion. KAGAN, J., filed a dissenting opinion, in which GINSBURG, BREYER, and SOTOMAYOR, JJ., joined. Thomas G. Hungar, Washington, DC, for Petitioner. Ian H. Gershengorn, for the United States as amicus curiae, by special leave of the Court, supporting the Petitioner. Douglas Laycock, Charlottesville, VA, for Respondents. Douglas Laycock, University of Virginia School of Law, Charlottesville, VA, Charles A. Rothfeld, Richard B. Katskee, Mayer Brown LLP, Washington, DC, Ayesha N. Khan, Counsel of Record, Gregory M. Lipper, Caitlin E. O'Connell, Americans United for Separation of Church and State, Washington, DC, for Respondents. Justice KENNEDY delivered the opinion of the Court, except as to Part II-B.* The Court must decide whether the town of Greece, New York, imposes an impermissible establishment of religion by opening its monthly board meetings with a prayer. It must be concluded, consistent with the Court's opinion in Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983), that no violation of the Constitution has been shown. I Greece, a town with a population of 94,000, is in upstate New York. For some years, it began its monthly town board meetings with a moment of silence. In 1999, the newly elected town supervisor, John Auberger, decided to replicate the prayer practice he had found meaningful while serving in the county legislature. Following the roll call and recitation of the Pledge of Allegiance, Auberger would invite a local clergyman to the front of the room to deliver an invocation. After the prayer, Auberger would thank the minister for serving as the board's "chaplain for the month" and present him with a commemorative plaque. The prayer was intended to place town board members in a solemn and deliberative frame of mind, invoke divine guidance in town affairs, and follow a tradition practiced by Congress and dozens of state legislatures. App. 22a-25a. The town followed an informal method for selecting prayer givers, all of whom were unpaid volunteers. A town employee would call the congregations listed in a local directory until she found a minister available for that month's meeting. The town eventually compiled a list of willing "board chaplains" who had accepted invitations and agreed to return in the future. The town at no point excluded or denied an opportunity to a would-be prayer giver. Its leaders maintained that a minister or layperson of any persuasion, including an atheist, could give the invocation. But nearly all of the congregations in town were Christian; and from 1999 to 2007, all of the participating ministers were too. Greece neither reviewed the prayers in advance of the meetings nor provided guidance as to their tone or content, in the belief that exercising any degree of control over the prayers would infringe both the free exercise and speech rights of the ministers. Id., at 22a. The town instead left the guest clergy free to compose their own devotions. The resulting prayers often sounded both civic and religious themes. Typical were invocations that asked the divinity to abide at the meeting and bestow blessings on the community: "Lord we ask you to send your spirit of servanthood upon all of us gathered here this evening to do your work for the benefit of all in our community. We ask you to bless our elected and appointed officials so they may deliberate with wisdom and act with courage. Bless the members of our community who come here to speak before the board so they may state their cause with honesty and humility.... Lord we ask you to bless us all, that everything we do here tonight will move you to welcome us one day into your kingdom as good and faithful servants. We ask this in the name of our brother Jesus. Amen." Id., at 45a. Some of the ministers spoke in a distinctly Christian idiom; and a minority invoked religious holidays, scripture, or doctrine, as in the following prayer: "Lord, God of all creation, we give you thanks and praise for your presence and action in the world. We look with anticipation to the celebration of Holy Week and Easter. It is in the solemn events of next week that we find the very heart and center of our Christian faith. We acknowledge the saving sacrifice of Jesus Christ on the cross. We draw strength, vitality, and confidence from his resurrection at Easter.... We pray for peace in the world, an end to terrorism, violence, conflict, and war. We pray for stability, democracy, and good government in those countries in which our armed forces are now serving, especially in Iraq and Afghanistan.... Praise and glory be yours, O Lord, now and forever more. Amen." Id., at 88a-89a. Respondents Susan Galloway and Linda Stephens attended town board meetings to speak about issues of local concern, and they objected that the prayers violated their religious or philosophical views. At one meeting, Galloway admonished board members that she found the prayers "offensive," "intolerable," and an affront to a "diverse community." Complaint in No. 08-cv-6088 (WDNY), ¶ 66. After respondents complained that Christian themes pervaded the prayers, to the exclusion of citizens who did not share those beliefs, the town invited a Jewish layman and the chairman of the local Baha'i temple to deliver prayers. A Wiccan priestess who had read press reports about the prayer controversy requested, and was granted, an opportunity to give the invocation. Galloway and Stephens brought suit in the United States District Court for the Western District of New York. They alleged that the town violated the First Amendment's Establishment Clause by preferring Christians over other prayer givers and by sponsoring sectarian prayers, such as those given "in Jesus' name." 732 F.Supp.2d 195, 203 (2010). They did not seek an end to the prayer practice, but rather requested an injunction that would limit the town to "inclusive and ecumenical" prayers that referred only to a "generic God" and would not associate the government with any one faith or belief. Id., at 210, 241. The District Court on summary judgment upheld the prayer practice as consistent with the First Amendment. It found no impermissible preference for Christianity, noting that the town had opened the prayer program to all creeds and excluded none. Although most of the prayer givers were Christian, this fact reflected only the predominantly Christian identity of the town's congregations, rather than an official policy or practice of discriminating against minority faiths. The District Court found no authority for the proposition that the First Amendment required Greece to invite clergy from congregations beyond its borders in order to achieve a minimum level of religious diversity. The District Court also rejected the theory that legislative prayer must be nonsectarian. The court began its inquiry with the opinion in Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, which permitted prayer in state legislatures by a chaplain paid from the public purse, so long as the prayer opportunity was not "exploited to proselytize or advance any one, or to disparage any other, faith or belief," id., at 794-795, 103 S.Ct. 3330. With respect to the prayer in Greece, the District Court concluded that references to Jesus, and the occasional request that the audience stand for the prayer, did not amount to impermissible proselytizing. It located in Marsh no additional requirement that the prayers be purged of sectarian content. In this regard the court quoted recent invocations offered in the U.S. House of Representatives "in the name of our Lord Jesus Christ," e.g., 156 Cong Rec. H5205 (June 30, 2010), and situated prayer in this context as part a long tradition. Finally, the trial court noted this Court's statement in County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 573, 603, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989), that the prayers in Marsh did not offend the Establishment Clause "because the particular chaplain had'removed all references to Christ.' " But the District Court did not read that statement to mandate that legislative prayer be nonsectarian, at least in circumstances where the town permitted clergy from a variety of faiths to give invocations. By welcoming many viewpoints, the District Court concluded, the town would be unlikely to give the impression that it was affiliating itself with any one religion. The Court of Appeals for the Second Circuit reversed. 681 F.3d 20, 34 (2012). It held that some aspects of the prayer program, viewed in their totality by a reasonable observer, conveyed the message that Greece was endorsing Christianity. The town's failure to promote the prayer opportunity to the public, or to invite ministers from congregations outside the town limits, all but "ensured a Christian viewpoint." Id., at 30-31. Although the court found no inherent problem in the sectarian content of the prayers, it concluded that the "steady drumbeat" of Christian prayer, unbroken by invocations from other faith traditions, tended to affiliate the town with Christianity. Id., at 32. Finally, the court found it relevant that guest clergy sometimes spoke on behalf of all present at the meeting, as by saying "let us pray," or by asking audience members to stand and bow their heads: "The invitation... to participate in the prayer... placed audience members who are nonreligious or adherents of non-Christian religion in the awkward position of either participating in prayers invoking beliefs they did not share or appearing to show disrespect for the invocation." Ibid. That board members bowed their heads or made the sign of the cross further conveyed the message that the town endorsed Christianity. The Court of Appeals emphasized that it was the "interaction of the facts present in this case," rather than any single element, that rendered the prayer unconstitutional. Id., at 33. Having granted certiorari to decide whether the town's prayer practice violates the Establishment Clause, 569 U.S. ----, 133 S.Ct. 2388, 185 L.Ed.2d 1103 (2013), the Court now reverses the judgment of the Court of Appeals. II In Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, the Court found no First Amendment violation in the Nebraska Legislature's practice of opening its sessions with a prayer delivered by a chaplain paid from state funds. The decision concluded that legislative prayer, while religious in nature, has long been understood as compatible with the Establishment Clause. As practiced by Congress since the framing of the Constitution, legislative prayer lends gravity to public business, reminds lawmakers to transcend petty differences in pursuit of a higher purpose, and expresses a common aspiration to a just and peaceful society. See Lynch v. Donnelly, 465 U.S. 668, 693, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984) (O'Connor, J., concurring); cf. A. Adams & C. Emmerich, A Nation Dedicated to Religious Liberty 83 (1990). The Court has considered this symbolic expression to be a "tolerable acknowledgement of beliefs widely held," Marsh, 463 U.S., at 792, 103 S.Ct. 3330, rather than a first, treacherous step towards establishment of a state church. Marsh is sometimes described as "carving out an exception" to the Court's Establishment Clause jurisprudence, because it sustained legislative prayer without subjecting the practice to "any of the formal 'tests' that have traditionally structured" this inquiry. Id., at 796, 813, 103 S.Ct. 3330 (Brennan, J., dissenting). The Court in Marsh found those tests unnecessary because history supported the conclusion that legislative invocations are compatible with the Establishment Clause. The First Congress made it an early item of business to appoint and pay official chaplains, and both the House and Senate have maintained the office virtually uninterrupted since that time. See id., at 787-789, and n. 10, 103 S.Ct. 3330; N. Feldman, Divided by God 109 (2005). But see Marsh, supra, at 791-792, and n. 12, 103 S.Ct. 3330 (noting dissenting views among the Framers); Madison, "Detached Memoranda", 3 Wm. & Mary Quarterly 534, 558-559 (1946) (hereinafter Madison's Detached Memoranda). When Marsh was decided, in 1983, legislative prayer had persisted in the Nebraska Legislature for more than a century, and the majority of the other States also had the same, consistent practice. 463 U.S., at 788-790, and n. 11, 103 S.Ct. 3330. Although no information has been cited by the parties to indicate how many local legislative bodies open their meetings with prayer, this practice too has historical precedent. See Reports of Proceedings of the City Council of Boston for the Year Commencing Jan. 1, 1909, and Ending Feb. 5, 1910, pp. 1-2 (1910) (Rev. Arthur Little) ("And now we desire to invoke Thy presence, Thy blessing, and Thy guidance upon those who are gathered here this morning..."). "In light of the unambiguous and unbroken history of more than 200 years, there can be no doubt that the practice of opening legislative sessions with a prayer has become part of the fabric of our society." Marsh, supra, at 792, 103 S.Ct. 3330. Yet Marsh must not be understood as permitting a practice that would amount to a constitutional violation if not for its historical foundation. The case teaches instead that the Establishment Clause must be interpreted "by reference Question: Who is the petitioner of the case? 001. attorney general of the United States, or his office 002. specified state board or department of education 003. city, town, township, village, or borough government or governmental unit 004. state commission, board, committee, or authority 005. county government or county governmental unit, except school district 006. court or judicial district 007. state department or agency 008. governmental employee or job applicant 009. female governmental employee or job applicant 010. minority governmental employee or job applicant 011. minority female governmental employee or job applicant 012. not listed among agencies in the first Administrative Action variable 013. retired or former governmental employee 014. U.S. House of Representatives 015. interstate compact 016. judge 017. state legislature, house, or committee 018. local governmental unit other than a county, city, town, township, village, or borough 019. governmental official, or an official of an agency established under an interstate compact 020. state or U.S. supreme court 021. local school district or board of education 022. U.S. Senate 023. U.S. senator 024. foreign nation or instrumentality 025. state or local governmental taxpayer, or executor of the estate of 026. state college or university 027. United States 028. State 029. person accused, indicted, or suspected of crime 030. advertising business or agency 031. agent, fiduciary, trustee, or executor 032. airplane manufacturer, or manufacturer of parts of airplanes 033. airline 034. distributor, importer, or exporter of alcoholic beverages 035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked 036. American Medical Association 037. National Railroad Passenger Corp. 038. amusement establishment, or recreational facility 039. arrested person, or pretrial detainee 040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association 041. author, copyright holder 042. bank, savings and loan, credit union, investment company 043. bankrupt person or business, or business in reorganization 044. establishment serving liquor by the glass, or package liquor store 045. water transportation, stevedore 046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines 047. brewery, distillery 048. broker, stock exchange, investment or securities firm 049. construction industry 050. bus or motorized passenger transportation vehicle 051. business, corporation 052. buyer, purchaser 053. cable TV 054. car dealer 055. person convicted of crime 056. tangible property, other than real estate, including contraband 057. chemical company 058. child, children, including adopted or illegitimate 059. religious organization, institution, or person 060. private club or facility 061. coal company or coal mine operator 062. computer business or manufacturer, hardware or software 063. consumer, consumer organization 064. creditor, including institution appearing as such; e.g., a finance company 065. person allegedly criminally insane or mentally incompetent to stand trial 066. defendant 067. debtor 068. real estate developer 069. disabled person or disability benefit claimant 070. distributor 071. person subject to selective service, including conscientious objector 072. drug manufacturer 073. druggist, pharmacist, pharmacy 074. employee, or job applicant, including beneficiaries of 075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan 076. electric equipment manufacturer 077. electric or hydroelectric power utility, power cooperative, or gas and electric company 078. eleemosynary institution or person 079. environmental organization 080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer. 081. farmer, farm worker, or farm organization 082. father 083. female employee or job applicant 084. female 085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of 086. fisherman or fishing company 087. food, meat packing, or processing company, stockyard 088. foreign (non-American) nongovernmental entity 089. franchiser 090. franchisee 091. lesbian, gay, bisexual, transexual person or organization 092. person who guarantees another's obligations 093. handicapped individual, or organization of devoted to 094. health organization or person, nursing home, medical clinic or laboratory, chiropractor 095. heir, or beneficiary, or person so claiming to be 096. hospital, medical center 097. husband, or ex-husband 098. involuntarily committed mental patient 099. Indian, including Indian tribe or nation 100. insurance company, or surety 101. inventor, patent assigner, trademark owner or holder 102. investor 103. injured person or legal entity, nonphysically and non-employment related 104. juvenile 105. government contractor 106. holder of a license or permit, or applicant therefor 107. magazine 108. male 109. medical or Medicaid claimant 110. medical supply or manufacturing co. 111. racial or ethnic minority employee or job applicant 112. minority female employee or job applicant 113. manufacturer 114. management, executive officer, or director, of business entity 115. military personnel, or dependent of, including reservist 116. mining company or miner, excluding coal, oil, or pipeline company 117. mother 118. auto manufacturer 119. newspaper, newsletter, journal of opinion, news service 120. radio and television network, except cable tv 121. nonprofit organization or business 122. nonresident 123. nuclear power plant or facility 124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels 125. shareholders to whom a tender offer is made 126. tender offer 127. oil company, or natural gas producer 128. elderly person, or organization dedicated to the elderly 129. out of state noncriminal defendant 130. political action committee 131. parent or parents 132. parking lot or service 133. patient of a health professional 134. telephone, telecommunications, or telegraph company 135. physician, MD or DO, dentist, or medical society 136. public interest organization 137. physically injured person, including wrongful death, who is not an employee 138. pipe line company 139. package, luggage, container 140. political candidate, activist, committee, party, party member, organization, or elected official 141. indigent, needy, welfare recipient 142. indigent defendant 143. private person 144. prisoner, inmate of penal institution 145. professional organization, business, or person 146. probationer, or parolee 147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer 148. public utility 149. publisher, publishing company 150. radio station 151. racial or ethnic minority 152. person or organization protesting racial or ethnic segregation or discrimination 153. racial or ethnic minority student or applicant for admission to an educational institution 154. realtor 155. journalist, columnist, member of the news media 156. resident 157. restaurant, food vendor 158. retarded person, or mental incompetent 159. retired or former employee 160. railroad 161. private school, college, or university 162. seller or vendor 163. shipper, including importer and exporter 164. shopping center, mall 165. spouse, or former spouse 166. stockholder, shareholder, or bondholder 167. retail business or outlet 168. student, or applicant for admission to an educational institution 169. taxpayer or executor of taxpayer's estate, federal only 170. tenant or lessee 171. theater, studio 172. forest products, lumber, or logging company 173. person traveling or wishing to travel abroad, or overseas travel agent 174. trucking company, or motor carrier 175. television station 176. union member 177. unemployed person or unemployment compensation applicant or claimant 178. union, labor organization, or official of 179. veteran 180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL) 181. wholesale trade 182. wife, or ex-wife 183. witness, or person under subpoena 184. network 185. slave 186. slave-owner 187. bank of the united states 188. timber company 189. u.s. job applicants or employees 190. Army and Air Force Exchange Service 191. Atomic Energy Commission 192. Secretary or administrative unit or personnel of the U.S. Air Force 193. Department or Secretary of Agriculture 194. Alien Property Custodian 195. Secretary or administrative unit or personnel of the U.S. Army 196. Board of Immigration Appeals 197. Bureau of Indian Affairs 198. Bonneville Power Administration 199. Benefits Review Board 200. Civil Aeronautics Board 201. Bureau of the Census 202. Central Intelligence Agency 203. Commodity Futures Trading Commission 204. Department or Secretary of Commerce 205. Comptroller of Currency 206. Consumer Product Safety Commission 207. Civil Rights Commission 208. Civil Service Commission, U.S. 209. Customs Service or Commissioner of Customs 210. Defense Base Closure and REalignment Commission 211. Drug Enforcement Agency 212. Department or Secretary of Defense (and Department or Secretary of War) 213. Department or Secretary of Energy 214. Department or Secretary of the Interior 215. Department of Justice or Attorney General 216. Department or Secretary of State 217. Department or Secretary of Transportation 218. Department or Secretary of Education 219. U.S. Employees' Compensation Commission, or Commissioner 220. Equal Employment Opportunity Commission 221. Environmental Protection Agency or Administrator 222. Federal Aviation Agency or Administration 223. Federal Bureau of Investigation or Director 224. Federal Bureau of Prisons 225. Farm Credit Administration 226. Federal Communications Commission (including a predecessor, Federal Radio Commission) 227. Federal Credit Union Administration 228. Food and Drug Administration 229. Federal Deposit Insurance Corporation 230. Federal Energy Administration 231. Federal Election Commission 232. Federal Energy Regulatory Commission 233. Federal Housing Administration 234. Federal Home Loan Bank Board 235. Federal Labor Relations Authority 236. Federal Maritime Board 237. Federal Maritime Commission 238. Farmers Home Administration 239. Federal Parole Board 240. Federal Power Commission 241. Federal Railroad Administration 242. Federal Reserve Board of Governors 243. Federal Reserve System 244. Federal Savings and Loan Insurance Corporation 245. Federal Trade Commission 246. Federal Works Administration, or Administrator 247. General Accounting Office 248. Comptroller General 249. General Services Administration 250. Department or Secretary of Health, Education and Welfare 251. Department or Secretary of Health and Human Services 252. Department or Secretary of Housing and Urban Development 253. Interstate Commerce Commission 254. Indian Claims Commission 255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement 256. Internal Revenue Service, Collector, Commissioner, or District Director of 257. Information Security Oversight Office 258. Department or Secretary of Labor 259. Loyalty Review Board 260. Legal Services Corporation 261. Merit Systems Protection Board 262. Multistate Tax Commission 263. National Aeronautics and Space Administration 264. Secretary or administrative unit of the U.S. Navy 265. National Credit Union Administration 266. National Endowment for the Arts 267. National Enforcement Commission 268. National Highway Traffic Safety Administration 269. National Labor Relations Board, or regional office or officer 270. National Mediation Board 271. National Railroad Adjustment Board 272. Nuclear Regulatory Commission 273. National Security Agency 274. Office of Economic Opportunity 275. Office of Management and Budget 276. Office of Price Administration, or Price Administrator 277. Office of Personnel Management 278. Occupational Safety and Health Administration 279. Occupational Safety and Health Review Commission 280. Office of Workers' Compensation Programs 281. Patent Office, or Commissioner of, or Board of Appeals of 282. Pay Board (established under the Economic Stabilization Act of 1970) 283. Pension Benefit Guaranty Corporation 284. U.S. Public Health Service 285. Postal Rate Commission 286. Provider Reimbursement Review Board 287. Renegotiation Board 288. Railroad Adjustment Board 289. Railroad Retirement Board 290. Subversive Activities Control Board 291. Small Business Administration 292. Securities and Exchange Commission 293. Social Security Administration or Commissioner 294. Selective Service System 295. Department or Secretary of the Treasury 296. Tennessee Valley Authority 297. United States Forest Service 298. United States Parole Commission 299. Postal Service and Post Office, or Postmaster General, or Postmaster 300. United States Sentencing Commission 301. Veterans' Administration 302. War Production Board 303. Wage Stabilization Board 304. General Land Office of Commissioners 305. Transportation Security Administration 306. Surface Transportation Board 307. U.S. Shipping Board Emergency Fleet Corp. 308. Reconstruction Finance Corp. 309. Department or Secretary of Homeland Security 310. Unidentifiable 311. International Entity Answer:
songer_fedlaw	D	What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal statute, and if so, whether the resolution of the issue by the court favored the appellant. BROOKLYN LAW SCHOOL, Plaintiff-Appellant, v. The AETNA CASUALTY AND SURETY COMPANY and Aetna Life & Casualty, Defendants-Appellees. No. 550, Docket 87-7527. United States Court of Appeals, Second Circuit. Argued Feb. 10, 1988. Decided June 24, 1988. Andrew L. Frey, Washington, D.C. (Mayer, Brown & Platt, Washington, D.C., Kathryn A. Oberly, Karen L. Whitney, of counsel), for plaintiff-appellant. Steven J. Ahmuty, New York City (Bower & Gardner, New York City, Barry G. Saretsky, Sidney Rosen, of counsel), for defendants-appellees. Before LUMBARD, CARDAMONE, Circuit Judges, and LEISURE, District Judge. Hon. Peter K. Leisure, United States District Judge for the Southern District of New York, sitting by designation. LUMBARD, Circuit Judge: Brooklyn Law School brought suit in November 1984 in the Eastern District, under diversity jurisdiction, against Aetna Casualty and Surety Company, its insurer, to recover $315,000 in damages suffered in defending five suits prosecuted against the School, its trustees, its faculty, and its students, by William Herrmann, a former professor at the School. Herrmann brought these suits in response to bitter salary disputes with the School that culminated in academic charges against him, a faculty hearing, and his expulsion from his tenured teaching position on September 17, 1975. When Brooklyn Law School called upon Aetna to defend these actions, Aetna disclaimed any obligation to provide a defense or indemnification under Multi-Peril and Excess Indemnity (Umbrella) Policies it issued to the School. Judge Bartels denied Brooklyn Law School’s motion for summary judgment on May 29, 1987. 661 F.Supp. 445 (E.D.N.Y. 1987). The School now appeals as to indemnification for defense costs in only one of the law suits brought by Herrmann, Herrmann v. Moore, 76 Civ. 2269 (E.D.N.Y.1977), aff'd, 576 F.2d 453 (2d Cir.), cert. denied, 439 U.S. 1003, 99 S.Ct. 613, 58 L.Ed.2d 679 (1978), alleging conspiracy by the School, its trustees, and members of its faculty to deprive him of his civil rights, to humiliate and humble him, and cause him loss of employment and mental anguish. On a motion for summary judgment made by the School, Judge Bartels held that the School had failed to show that it was insured against the claim in Herr-mann v. Moore and dismissed the case. Judge Bartels found that Aetna’s Umbrella policy was the only policy which could possibly afford the School coverage for the suit. The court also found that under the terms of that policy, the claims insured against were only those personal injuries resulting from an “occurrence” defined as an “accident ... which is neither expected nor intended from the standpoint of the insured.” Based upon this finding, Judge Bartels reasoned that the claim made in Herrmann v. Moore, which alleged conspiracy to cause the harm, was not such a claim and therefore Aetna had no duty to defend and reimburse. In short, there was no liability with respect to claims which alleged that Brooklyn Law School had intentionally caused damage. We agree with the district court and affirm. New York recognizes a broad insurer’s duty to defend its insured against lawsuits, regardless of how poorly the complaint is worded, or how many claims are raised. Seaboard Surety Co. v. Gillette Co., 64 N.Y.2d 304, 486 N.Y.S.2d 873, 476 N.E.2d 272 (1984); International Paper Co. v. Continental Casualty Co., 35 N.Y.2d 322, 361 N.Y.S.2d 873, 320 N.E.2d 619 (1974). The insurer is relieved of its obligation to defend only if there is “no possible factual or legal basis on which the insurer might eventually be held to be obligated, or the insurer can show that ‘the allegations of the complaint are solely and entirely within the policy exclusions, and that the allegations, in toto, are not subject to any other interpretation.’ ” 661 F.Supp. at 449 (quoting International Paper Co., 35 N.Y.2d at 325, 361 N.Y.S.2d at 875, 320 N.E.2d at 621). New York courts interpreting the meaning of an “occurrence,” in policy clauses similar to those at issue here, have determined that liability coverage depends upon whether the alleged injury was intentionally caused or was an unintended, although foreseeable, result of the alleged intentional conduct. The distinction is drawn between damages which flow directly and immediately from an intended act, thereby precluding coverage, and damages which ac-cidently arise out of a chain of unintended though expected or foreseeable events that occurred after an intentional act. Ordinary negligence does not constitute an intention to cause damage; neither does a calculated risk amount to an expectation of damage. To deny coverage, then, the fact finder must find that the insured intended to cause damage. Continental Insurance Co. v. Colangione, 107 A.D.2d 978, 979, 484 N.Y.S.2d 929, 930-31 (3d Dept.1985) (citations omitted). See also General Accident Insurance Company of America v. Manchester, 116 A.D.2d 790, 792, 497 N.Y.S.2d 180, 182 (3d Dept.1986). A complaint that the insured has conspired to commit certain acts necessarily charges intentional conduct on the part of the defendant-insured. See Federal Insurance Co. v. Cablevision Systems Development Co., 637 F.Supp. 1568, 1577 (E.D.N.Y.1986). It is that conduct which must be examined to determine whether the plaintiff alleges that the insured intended to cause damage or that the damage “was unexpected, unusual, and unforeseen.” Mary & Alice Ford Nursing Home Co. v. Fireman’s Insurance Co. of Newark, N.J., 86 A.D.2d 736, 737, 446 N.Y.S.2d 599, 601 (3d Dept.), aff'd, 57 N.Y.2d 656, 454 N.Y.S.2d 74, 439 N.E.2d 883 (1982). In applying this test to a claim that an employer-insured has caused emotional injuries by discharging an employee pursuant to intentional discriminatory practices, the court in Mary & Alice Ford held that insurance clauses identical to those at issue here excluded potential liability from coverage because the injuries allegedly caused by the insured were: “neither unexpected nor unforeseen, but rather they were the direct and natural consequences of [the employer’s] intentional act. Thus, if the [complainants] succeed in their action, the proof will necessarily establish that there was no accident within the meaning of the insurance policies in question and, therefore [the insurer] will not be liable to indemnify [the insured].” Id., 86 A.D.2d at 737-38, 446 N.Y.S.2d at 601. The complaint here alleged that the School conspired intentionally to inhibit Herrmann’s constitutional rights. It is replete with allegations of intentional conduct and injuries. We agree with Judge Bartels’ finding that such allegations, if proven, would not give rise to a covered liability under the terms of the Umbrella Policy. Consequently, Aetna had no duty to defend the action. Nonetheless, the School also argues that there are allegations in the complaint which, if proven, could result in the insurer’s liability for damages resulting from unintentional conduct or intentional conduct producing unintentional injury. We can see no reason why the court should have imagined what is not in the complaint in order to find liability which was not intended. Herrmann’s complaint may be inartfully drafted but there can be no doubt that the purpose of his action, as determined by the district court, was to hold the School liable for conspiring intentionally to inhibit his rights and intentionally to commit acts to deprive him of his property rights in his tenured position. Liability for injuries caused by intentional acts of the insured is expressly excluded under the Aetna insurance policy definition of “occurrence” as interpreted under New York law. The School’s final argument is that the Umbrella Policy does not unambiguously exclude coverage of liability for the “mental anguish” injury alleged by Herrmann notwithstanding the complaint’s allegations regarding intent. This argument is based on the policy term “personal injury” which on its face may be read to require insurance coverage, or at least creates an ambiguity regarding the extent of insurance coverage, when a described injury is alleged to have been caused by the insured. We do not agree with this approach. The focus of New York courts’ construction of such insurance policy language has found the term “personal injury” to be a description of injuries which are covered only if such an injury arises out of an “occurrence.” As we have said, this does not cover injuries from intentional acts. In light of the consistent interpretation by the New York courts of the parameters of coverage under the insurance terms at issue in this case, we find that Herrmann’s complaint against the School alleged injuries which are excluded from coverage under the Umbrella Policy. As a result, Aet-na was not obligated to defend the School on Herrmann’s complaint of conspiracy or to indemnify the School for any damages suffered from such a suit. Affirmed. Question: Did the interpretation of federal statute by the court favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_genapel1	A	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed appellant. OLD COLONY TRUST ASSOCIATES v. HASSETT, Collector of Internal Revenue. No. 4065. Circuit Court of Appeals, First Circuit May 18, 1945. Hugh D. McLellan, of Boston, Mass. (George R. Blodgett, Kenneth W. Bergen, and Herrick, Smith, Donald, Farley & Ketchum, all of Boston, Mass., of counsel), for appellant. Fred J. Neuland, Sp. Asst, to Atty. Gen. (Samuel O. Clark, Jr., Asst. Atty. Gen., Se-wall Key and Robert N. Anderson, Sp. Assts. to Atty. Gen., and Edmund J. Brandon, U. S. Atty., and George F. Garrity, Asst. U. S. Atty., both of Boston, Mass., of counsel), for appellee. Before MAHONEY, and WOODBURY, Circuit Judges, and FORD, District Judge. FORD, District Judge. This is an appeal from a judgment, claimed inadequate, of the district court in favor of the appellant in a suit for the recovery of federal income and excess profits taxes paid for the calendar years 1935 and 1936. The facts for the most part have been stipulated by the parties. The taxpayer, Old Colony Trust Associates, is and was during the tax years of 1935 and 1936 a bank investment trust and a corporation within the meaning of the internal revenue laws. On July 26, 1932, the appellant owned 30,345 shares of the 75,000 outstanding shares of the Everett Trust Company, a Massachusetts banking corporation. On the date referred to, practically the lowest point of the then existing depression, the Everett Trust Company (hereinafter referred to as the Old Bank) was, and had been for several months before that date, insolvent; its closing was imminent. The appellant faced a possible assessment in the amount of $303,450, and the other stockholders faced a proportionate assessment upon their stock. In the spring of 1932 Mr. F. W. Denio, vice-president and secretary of the appellant, discussed the financial condition of the Everett Trust Company with the Massachusetts Bank Commissioner and as a result a plan of reorganization of the Everett Trust Company which included the organization of a new bank to be known as the Everett Bank and Trust Company (hereinafter referred to as the New Bank) was formulated. The purposes sought to be accomplished by the plan were to pay the depositors of the Old Bank, forestall impairment to the large stock holdings of the appellant in other banks in Greater Boston, and relieve the taxpayer of a possible assessment upon its stock in the Old Bank. An essential element of the plan was a loan by the taxpayer to the Old Bank of $900,000 for which the Old Bank was to give its demand note secured by •certain readily marketable securities composed of shares of stock in leading industries, banks, public utility and railroad holding companies held in the portfolio of the Old Bank. The plan provided that the New Bank would take over all of the assets •of the Old Bank including the equity in the stock;- to be pledged under the $900,000 loan, the New Bank to assume all the liability of the Old Bank except its liability on the $900,000 loan. Also under the plan the stockholders of the Old Bank were given the right to subscribe for not more than 20,000 shares of the capital stock of the New Bank. The taxpayer agreed to subscribe to an equal aggregate number of shares subscribed for by the other stockholders of the Old Bank and to underwrite enough additional shares to make the total issue of the New Bank at least 20,000 •shares. In accordance with the plan, the appellant •on July 26, 1932 loaned to the Old Bank $900,000 for which it took a six per cent, demand note of the Old Bank secured by ■securities which had an aggregate market value on the date of the loan of $247,683.50. At their respective highs in previous years these securities had a market value of $2,089,467.06 and had cost the Old Bank $1,208,935.90. The demand note contained provisions regarding the foreclosure of the pledge, but ■permitted the holder of the note to bid in the collateral only if the foreclosure was by public sale. The $900,000 loan was set up on the taxpayer’s books as of July 26,1932 as “Note Receivable” and later, on December 28, 1932, changed to “Demand Note of Everett Trust Company, secured by collateral.” (On the balance sheets of December 31, 1934 and December 31, 1935, the demand •note was carried at the net value representing the quoted market value of the collateral security.) On July 26, 1932, the date of the loan, the New Bank was incorporated with an .authorized capital stock of 20,000 shares of 'the par value of $10 per share, and pursuant to the plan the taxpayer subscribed to 16,794 shares at a cost of $335,880. The assets of the Old Bank, including the $900,000 received from the taxpayer, the equity in the securities pledged to the appellant, were transferred to the New Bank, and the latter assumed the liability to depositors and other creditors of the Old Bank, except the liability of the Old Bank to the taxpayer on the $900,000 demand note. The New Bank carried on the business of the Old Bank in the same quarters. The Old Bank ceased doing business. The appellant registered the shares transferred to it as 'security by the Old Bank in each instance as follows: “Old Colony Trust Associates, Pledgee under demand note of Everett Trust Co. dated July 26, 1932.” The dividends received by the taxpayer on the collateral securities were treated on its books and in its tax returns for the years 1932 to 1936, inclusive, as interest income. No proxies were ever' sent in by the appellant to the respective companies represented in connection with any of the collateral securities. In accordance with its rights under the demand note the taxpayer sold a portion of the collateral in 1934 for $104,806.83; in 1935 it sold part of the securities pledged for $377,485.38; the remaining portion of the collateral was sold in 1936 for $47,261.-13, and these respective amounts were applied in reduction of the note. This left an unpaid balance on the note amounting to $370,446.66, which the appellant deducted as a bad debt on its income tax return for 1936. The - Commissioner determined that the appellant realized taxable gains within the provisions of Sections 111(a) and 113(a) of the Revenue Acts of 1934 and 1936, 26 U.S.C.A. Int.Rev.Acts pages 691, 696 and 854, 859, upon the sale of the collateral in 1935 and 1936 of $218,282.88 and $24,168.-63, respectively, the difference between the sales price and the market value of the securities on July 26, 1932. The Commissioner also disallowed the taxpayer’s bad debt reduction of $370,446.66 claimed by the appellant in its 1936 return. The district court decided the two questions now remaining in this suit against the appellant, taking the position with respect to the taxpayer’s alleged taxable gains in 1935 and 1936, that the transaction of July 26, 1932 “served factually to transfer the ownership of the securities to the plaintiff,” and, therefore, it realized taxable gains on the sale of the collateral in the years 1935 and 1936. Since profits on sales are taxed only to the owner of the property sold, it follows that if’the appellant was merely a pledgee of the securities in question, any profits on the sales of the securities in 1935 and 1936 cannot be taxed to it. A pledgee who has not foreclosed has only a special interest or property in the stock during the continuance of the pledge. The pledgor retains the title and gains from sales of the collateral are taxed to the pledgor. Cf. I.T.. 2897, XTV-1 C.B. pp. 144, 145; Ethel Burns v. United States, D.C.Cal.1940, 61 F.Supp. 312; W. L. Moody Cotton Co. v. Commissioner, 5 Cir., 143 F.2d 712, 714; Grover C. Ligon v. Commissioner, 37 B.T.A. 763; Hans Pederson v. Com’r, 14 B.T.A. 1089, 1117, 1118. The appellant argues earnestly that, since the government stipulated in the district court the transaction of July 26, 1932 was a loan, it cannot now be heard to make the contention that it was. a loan in form and in substance a sale. The government, however, should not be foreclosed from asking the court to examine the actual facts-to determine the exact nature of the transaction, for it states that its intention, in conceding the transaction was a loan, was merely a concession that it was such merely in form. Looking at the factual situation, although the transaction was set up in the books of the appellant as a loan, the taxpayer’s books are only evidential, not conclusive, of the true nature of the transaction (cf. Eisner v. Macomber, 252 U.S. 189, 40 S.Ct. 189, 64 L.Ed. 521, 9 A.L.R. 1570; Doyle v. Mitchell Brothers Co., 247 U.S. 179, 187, 38 S.Ct. 467, 62 L.Ed. 1054; Bankers Mortg. Co. v. Commissioner, 5 Cir., 141 F.2d 357) and they, together with all -the surrounding facts (W. L. Moody Cotton Co. v. Commissioner, supra), must be examined to determine whether there is an attempt to evade taxes by “ ‘anticipatory arrangements and contracts however skilfully devised * * .’ ” Cf. Griffiths v. Commissioner, 308 U.S. 355, 358, 60 S.Ct. 277, 278, 84 L.Ed 319. Questions of taxation must be determined by viewing what was actually done rather than the declared purpose of the participants. Weiss v. Stearn, 265 U.S. 242, 44 S.Ct. 490, 68 L.Ed. 1001, 33 A.L.R. 520. The government concedes that in every essential form the transaction of July 26, 1932 was a loan. All the instruments executed plainly reflected that the transaction was a loan. The records of the appellant and the Old Bank evidenced the intention of the parties to establish a debtor-creditor relation with the stocks pledged as collateral. There was not any evidence whatsoever that the parties to the transaction— the directors of the Old Bank, the trustees of the appellant, and the executive committee of the New Bank — treated the transaction other than as a loan. The conduct of the appellant in setting up the transaction on its books, in crediting dividends received on the collateral stock as interest income, in reporting such amounts as interest income on its tax returns, and in not sending proxies on the stock, reflected what was in the minds of the appellant’s trustees with respect to the transaction. Another fact indicating the lack of ownership by appellant is that it was not the policy of the appellant-trust to invest in other than bank stocks. None of the collateral was of that nature. As far as form went all the incidents of a loan were present in the 1932 transaction, and the appellant at no time evidenced any intention of buying the collateral. The government, however, contends that with all this the transaction in substance was a sale, and closed on July 26, 1932. With this we are not in agreement. The fact, as the appellee argues, that the taxpayer had as one of its motives for making the loan an avoidance of assessments on its stock holdings and, another, the desire to stabilize the banking situation in Greater Boston, does not make any transaction of July 26, 1932 any less a loan. The government, in support of its position, contends that the taxpayer “to all intents and purposes held title to the securities * True, it had the rights of the ordinary holder of a demand note secured by collateral to sell the securities, but the right to sell did not make the appellant the owner of the collateral unless the collateral was bought by it, in this case, at public auction. Under the plan of reorganization the New Bank took over the equity in the stocks pledged under the loan of $900,000. If the sales price of the securities had exceeded the amount of the loan, it is plain the appellant would have been bound to turn over the excess to the New Bank. The New Bank on payment of the loan had a right to acquire all the rights of ownership in the pledged securities. This circumstance is clearly incompatible with any theory of ownership and of considerable probative force in establishing the true nature of the transaction. These considerations would lead to the conclusion the taxpayer was a pledgee of the stock rather than an owner. The government, citing City Nat. Bank Bldg. Co. v. Helvering, 68 App.D.C. 344, 98 F.2d 216 and Gilman v. Commissioner, 8 Cir., 53 F.2d 47, 80 A.L.R. 209, argues that the obligation on the part of-the borrower to repay the sum borrowed is lacking in this case; that the Old Bank was not committed to pay any sum of money in excess of the fair market value of the securities. It is true that the Old Bank after the reorganization was unable to pay the loan but that does not mean that the note was not an enforceable legal obligation against the Old Bank. There was no release from repayment of the loan as such. Further, advances may be loans even when there is an absence of personal liability and the lender can look only to the pledged securities for repayment. I.T. 3283, 1939-1 C.B. 81; I.T. 2931, 1935, XIV-2 C.B. 56. Repayment of the amount of the advance in the cases cited is contingent, but as the court in Island Petroleum Co. v. Commissioner, 4 Cir., 57 F.2d 992, 994, certiorari denied 287 U.S. 646, 53 S.Ct. 92, 77 L.Ed 558, in determining advances were loans where the advances were to be repaid with a portion of the net profits from the proceeds of oil operations and only in the event that the operations should prove successful, states it: “A loan is no less a loan because its repayment is made contingent.” Cf. Boston Elevated Ry. Co. v. Commissioner, 1 Cir., 131 F.2d 161, 164. - One other consideration remains with respect to this issue. The securities involved formerly had a market price of $2,089,467.-06. The Old Bank had paid $1,208,935.90. In 1932, when pledged as collateral for the $900,000 note, they had a market value of $247,683.50. This was at the low point of the depression. The belief on the part of the officers of the taxpayer and the New Bank that the securities would rise sufficiently in value to liquidate the loan was reasonable. That they thought that such would be the case is evidenced by the provision in the plan that any excess beyond the amount necessary for the payment of the loan would go to the New Bank. This is of considerable importance in justifying the conclusion that the true intent of the parties was to make a loan and that the transaction in reality was a loan. We reach the conclusion that the appellant did not become the owner of the pledged securities by the note transaction of July 26, 1932, that it was a pledgee, and, consequently, it received no taxable gains in 1935 and 1936 on the sale of the securities pledged to it in 1932 by the Old Bank. The remaining question to decide is whether, within the provisions of Section 23(k) of the Revenue Acts of 1934 and 1936, 26 U.S.C.A. Int.Rev.Acts, pages 673 and 828, the taxpayer is entitled to a bad debt reduction in 1936 of $370,446.66, the difference between the face amount of the loan and the amount realized on the sale of securities pledged as collateral for the loan of $900,000 to the Old Bank. The government contends that even if the transaction of 1932 was a loan it was obvious that the debt should have been determined worthless in 1932, and, therefore, it suffered no deductible loss in 1936. We do not agree. The appellant did not deduct any part of the debt as partially worthless prior to 1936, although it may have believed it was partially worthless prior to 1936. True, when a debt is totally bad, it must be deducted in the year of ascertainment, which is the year it becomes wholly worthless, but a debt which is only partially bad may be, but need not be, charged off by the taxpayer. If no claim for partial worthlessness is made, the debt may be deducted in full, when it becomes entirely worthless. First Nat. Bank of Fort Worth v. Commissioner, 5 Cir., 140 F.2d 938, 939; Blair v. Commissioner, 2 Cir., 91 F.2d 992, 994; Mertens, Vol. 5, Sec. 30.23. It is plain here that the part of the note which was unrecovered could not have been ascertained to be uncollectible until the last of the pledged stocks had been sold in 1936, and the taxpayer is entitled to a deduction for the difference between the face value of the note and the sales price of the securities sold in 1934, 1935, and 1936, i.e., $370,446.66. In the view reached with respect to the questions involved, it is unnecessary to consider other grounds relied on. The judgment of the District Court is reversed and the case is remanded to that court with directions to enter judgment in accordance with this opinion; the appellant recovers costs of appeal. The eases in which these rulings were made were cases where corn and cotton producers signed notes agreeing to pay-certain amounts with interest, the commodities being pledged as security. The loan agreement provided that upon maturity the holder was authorized to sell the commodity and any excess of the sales price over the amount due on the note was payable to the producers. There was a provision that the producer (absent misrepresentation) was not personally liable for any deficiencies. It was held that the advances received by the producers should be treated as loans and not as proceeds from a sale of the com or cotton. 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_trialpro	B	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the 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". CORPORATION OF CHARLES TOWN v. LIGON et al. No. 3440. Circuit Court of Appeals, Fourth Circuit. Oct. 20, 1933. James M. Mason, Jr., of Charles Town, W. Va., and Harry H. Byrer, of Martinsburg, W. Va., for appellant. Clarence E. Martin, of Martinsburg, W. Va. (Martin & Seibert, of Martinsburg, W. Va., on the brief), for -appellees. Before PARKER and NORTHCOTT, Circuit Judges, and ERNEST P. COCHRAN, District Judge. PARKER, Circuit Judge. In 1926 .the town of Charles Town, W. Va, hereafter referred to as defendant, entered into a contract with Ligón & Ligón, hereafter referred to as plaintiffs, for the construction of sewer lines and an outfall sewer and disposal plant. The contract embraced two projects, one covering the outfall sewer and disposal plant, referred to by the parties as project A, and the other covering the sewer lines, referred to as project B. Various changes yrere made by the town engineer in the work as .covered by the two pro j eets; but both were eventually completed, claims of the contractors for changes in and additions to the work were submitted to and passed upon by the engineer, and the balance due under his estimate was tendered by the town and accepted by the plaintiffs. It is admitted that in this estimate there was an error of $113.08, but defendant consented that judgment be entered against it for this amount and same is not involved in the appeal. After accepting the amounts tendered by the town as the balance due under the estimate and award of the engineer, the plaintiffs instituted this action to recover on a quantum meruit additional compensation for the work done, claiming that the changes in the work weré so radical as to take it out of the contract and that for like reason they were not bound by the award of the engineer. The court below submitted the case to a jury; and as to most of the claims for additional compensation, the verdict was for the defendant. On three items, however, the jury found for plaintiffs, awarding $1,42.7.85 as additional compensation for constructing the outfall sewer, $1,200 as a return of liquidated damages for delay in project A, and $2,060 as a return of liquidated damages deducted for delay in project B. There was judgment on this verdict in favor of plaintiffs, and defendant has appealed, assigning as error the refusal of the court to direct a verdict in its favor on these items, as well as alleged error in various parts of the charge and in refusal to give requested instructions. As we are of opinion that defendant was entitled to a directed verdict, as to all the matters in dispute except the $1,200 item, we need consider only this feature of the case. The conclusion that defendant was entitled to a directed verdict as to all matters in dispute except the $1,200 item is based on the fact that the engineer in charge of the work passed upon all disputed matters, and under the terms of the contract his award was made binding upon the parties. The position of plaintiffs is (1) that, because of departure from its terms, the contract is not binding upon them and the award of the engineer has no binding effect; and (2) that, so far as the matter of liquidated damages is concerned, this was not covered by the submission clause of the contract. We think, however, that there was no such departure from the contract as relieved the parties from its terms; that under the contract they were bound by the decisions of the engineer as to liquidated damages as well as to other matters; and that all matters covered by the verdict of the jury except the $1,200 item were concluded by his award. The written contract, applicable to both projects, provided, among other things, that the engineer might make alterations in the line, grade, plan, form, dimensions, or materials of the work; that the contractors should bear all losses resulting on account of amount or character of the work, or because the nature of the land in or on which the work was to be done should be different from what was estimated or expected; that the contractors should do extra work when requested by the engineer, receiving cost plus 15 per cent, for such extra work; and that the decision of the engineer should be final upon all questions as to the amount and value of the extra work. It provided also that, for failure of the contractors to complete the work by the time stipulated, the town should deduct $10 per day as liquidated damages; that the engineer should make monthly estimates which should be paid by the town to the contractors, after deducting certain percentages authorized to be retained; that after the completion of the contract the engineer should make a final estimate of the amount due and the town should pay the entire sum so found less amounts previously paid and an authorized retainage; and that the acceptance by the contractors of the last payment thus made should operate to release the town from all claims of and liability to the contractors. The engineer was made arbitrator of all questions which might arise under the contract; and it was provided that his estimate and decision upon any question which might arise “touching the contract” should be a condition precedent to the right of the contractors to receive any money under same. The exact language of this provision is as follows: “Art. 2. To prevent dispute and litigation, the engineer shall in all eases determine the amount, quality, acceptability and fitness of the several kinds of work and materials which are to be paid for under this contract, shall determine all questions in relation to said work and the construction thereof, and shall in all eases decide every question which may arise relative to the fulfillment of this contract on the part of the contractor. His estimate and decision shall be final and conclusive upon both parties to this contract, and in case any question shall arise between the parties hereto, touching this contract such estimate and decision shall be a condition precedent to the right of the contractor, to receive any money under the contract.” Shortly after the contract was awarded but before work under it had commenced, the engineer changed the course of the 2,800-foot outfall sewer line of project A for a distance of about 1,800 feet, so that instead of running ova* a meadow on a concrete cradle it ran around & hillside under the ground. This eliminated some of the concrete work upon which bids had been submitted, but changed the character of excavation only to the extent that, whereas the original bid contemplated approximately 1,900 feet of the 15-inch pipe placed at a depth of 0 to 3 feet, 1,100 feet at a depth of 3 to 5 feet, and 200 feet at a depth of 5 to 7 feet, the line as constructed involved the placing of only 1,477 feet at a depth of 3 feet or less, 936 feet at a depth of 3 to 5 feet, and 380 feet at a depth of 5 to 7 feet. On project B it was found necessary to place the sanitary sewer line at a depth greater than originally contemplated and to make certain other minor changes, and these were ordered by the engineer. Plaintiffs proceeded under the contract, and at the conclusion of the work filed claims with the engineer for additional work done and additional expense incurred because of the changes. The engineer rejected some of the items of the claim and allowed others. On project A, plaintiffs asked $1,425 additional compensation for excavation for the disposal plant and were awarded $1,389. For change in the course of the outfall sewer they asked $3,728 and were allowed $637. On various claims under project B $1,421.55 was allowed. All of these amounts were carried into the final estimate for which payment was made to and accepted by plaintiffs. With respect to the claim for change in the outfall sewer, which is the only one of the claims for extra compensation involved in this appeal, the engineer in passing upon the claim of plaintiffs, said: “Item No. 2. The location of the 15-ineh outfall sewer through the Perry property was shifted from its location at the time that the bids were submitted. The shifting of the line caused the contractor to excavate a good deal more rock than he would have had to move had the line not been shifted. On the other hand by shifting the line the town saved about $400.00 in the cost of construction and damaged the property through which the line was constructed considerably less than if it had been left on the original location, as the original location contemplated for the line being out of the ground for a large part of the way. According to his strict interpretation of the specifications, the contractor has no basis for his claim for this item, as article 18 provides as follows: “ ‘Art. 18. The engineer may make alterations in the line, grade, plan, form, dimensions or materials of the work, or any part thereof, either before or after the commencement of construction; if such alterations diminish the quantity of work to be done, they shall not warrant any claim for damages or for anticipated profits on the work that may be dispensed with; if they increase the amount of work such increase shall be paid for according to the quantity actually done and at the price stipulated for such work under this contract.’ “However, I feel that we made the work more difficult than was contemplated at the time the work was bid on, and that regardless of article 18, the town is morally bound. By examining carefully the contractor’s unit bids we find that he figured his excavation at $2.97 per cu. yd., and I recommend that he be allowed the difference in price between $2.97 per cu. yd. and $5.00 per cu. yd., for that excavation between 3 feet and 7 feet which would make a total allowance of $637.42.” Upon failure of plaintiffs to complete the work as provided by contract by December 31, 1926, the engineer began deducting the liquidated damages provided by contract from the estimates, deducting $10 per day for delay in the estimate on each project, on the theory that there was a separate contract as to each. On project A, $590 was deducted in estimate No. 4, covering January and February, and $610 on estimate No. 5, covering March and April. On project B, deduction was made on account of liquidated damages totaling $2,060 in estimates 6 to 12, inclusive. On February 17,1927, plaintiffs in a letter to the engineer called attention to the fact that liquidated damages had been deducted from one of the current estimates and protested against the deduction, both on the ground that it was usual to postpone such matters until the end of the job and also on the ground that the progress of the work had been delayed by the defendant’s change in plans. The engineer in a letter of February 22d, in answer to the protesting letter of plaintiffs, called attention to the provisions of the contract regarding liquidated damages and to those requiring the engineer to arbitrate matters in dispute. He stated that, at the time of preparing the estimate, he liad heard of no reason why liquidated damages should not be retained and that the provisions of the contract had been carried out accordingly, but expressed willingness to rule on any question with regard to liquidated damages which might be raised. Plaintiffs in a letter to the engineer of February 23d, stated that later they would submit their claims with regard to the matter; but there is no evidence of their having done so, even at the time of presenting their claims in preparation for the final estimate, although the liquidated damages had been regularly deducted from current estimates, and although, as we have seen, the contract provided that a decision by the engineer should be a condition precedent to the right of the contractor to receive any money under the contract in case a question “touching” same should arise. Check was issued to plaintiffs in accordance with final estimate of the engineer and accepted and cashed by them, but it appears that they wrote defendant at the time that they were not waiving any claim by so doing, but were accepting the check as payment on account in accordance with an understanding with defendant, and that if this did not accord with defendant’s understanding, they would return the cheek. After some intervening correspondence, with respect to the arbitration of certain matters in difference, defendant wrote plaintiffs on October 24, 1928, that it would not arbitrate further but would adhere to the provisions of the contract which designated the engineer as final arbiter. The plaintiffs retained the moneys which they had collected, and something over two years later instituted this action for the purpose of recovering additional compensation. Upon these facts, we think that there is no ground for the contention that plaintiffs were absolved from tbe provisions of the contract. In the first place, there was no such radical change in the nature of the work as to take it from under the provisions of the contract. The changes made in the sewer lines in project B and the change of course in the outfall sewer in project A were changes of the character frequently made in construction contracts, and such changes were provided for in the terms of the contract itself, article 18 thereof providing for alteration in line, grade, plan, etc., and article 22 providing for extra work. They were not changes radically altering the nature and cost of the work, as in Henderson Bridge Co. v. McGrath, 134 U. S. 260, 10 S. Ct. 730, 33 L: Ed. 934, and Salt Lake City v. Smith (C. C. A. 8th) 104 F. 457; nor were they made under a separate and independent contract as in Teer v. George A. Fuller Co. (C. C. A. 4th) 30 F.(2d) 30. The project as originally contemplated was substantially carried out, the changes made not adding greatly to the cost or changing to any considerable extent the character of work to be done. The case clearly falls within the principle of such cases as Coal & Iron R. Co. v. Reherd (C. C. A. 4th) 204 F; 859, RajotteWinters, Inc., v. Whitney Co. (C. C. A. 9th) 2 F.(2d) 801, and City of Mobile v. Shea (C. C. A. 5th) 127 F. 521. In the second place, the parties proceeded under the contract throughout; and plaintiffs, having accepted its benefits, are not in position to repudiate its terms. The most radical change of which they complain is the change in the course of the outfall sewer, which was made before work was begun. They did not refuse to proceed with the work, nor did they treat this change as in any sense the requirement of work outside the contract; but they proceeded under a promise that their claim for additional compensation would be “ironed out” when the job was completed, and accepted payment of current estimates under the terms of the contract. When the work was finished, they filed claims with the engineer asking additional compensation under the contract and obtained thereby an award on their claims of several thousand dollars, which they accepted. They cannot approbate and reprobate in the same breath. Having accepted benefits under the contract, they will not be heard to contend that it is not binding upon them. See 10 R. C. L. 694; 21 C. J. 1209' and eases there cited. Since, therefore, the plaintiffs are bound by the terms of the contract, they are bound by the award of the engineer made pursuant to its terms. As we said in City of Lexington v. Pratt (C. C. A. 4th) 31 F.(2d) 820, 821, where, as in the ease at bar, the contract made the decision of the city- engineer binding as to questions which might arise thereunder: “The rule is well settled in the federal courts that, where parties to a construction contract' provide, as- in this case, that the estimates and decisions of an architect or engineer as to questions arising in the execution of the contract shall be final and conclusive, such estimates and decisions have the effect of the award of an arbitrator. In the absence of fraud or such gross mistakes as imply bad faith' or failure to exercise an honest judgment, they are conclusive and binding upon the parties. U. S. v. Gleason, 175 U. S. 588, 20 S. Ct. 228, 44 L. Ed. 284; Chicago, S. F. & C. R. Co. v. Price, 138 U. S. 185, 11 S. Ct. 290, 34 L. Ed. 917; Martinsburg & P. R. Co. v. March, 114 U. S. 549, 5 S. Ct. 1035, 29 L. Ed. 255; Omaha v. Hammond, 94 U. S. 98, 24 L. Ed. 70; Penn Bridge Co. v. Kershaw County (C. C. A. 4th) 226 F. 728; Cook v. Foley (C. C. A. 8th) 152 F. 41, 51; Elliott v. Missouri, K. & T. R. Co. (C. C. A. 8th) 74 F. 707; Ogden v. U. S. (C. C. A. 5th) 60 F. 725. And this is also the general rule. 9 C. J. 772 and eases cited; note 56 Am. St. Rep. 314 et seq.” There was no evidence in the ease of fraud on the part of the engineer or of such gross mistakes as would imply bad faith or failure to exercise an honest judgment. And there is no room for serious controversy as to the binding effect of his award on the claim of additional compensation for the construction of the outfall sewer. This was a question with relation to the work, it was submitted to him by the plaintiffs themselves, and we know of no principle upon which they can be relieved of the binding effect of his decision. And we think that the parties are bound also by the decision gf the engineer regarding liquidated damages. Whether or not there was delay in the completion of the work for which the town was entitled to liquidated damages, was certainly a question “in relation to the work” and a question which arose “relative to the fulfillment of the contract on the part of the contractor.” Not only did article 2 of the contract make his decision final and conclusive on such questions, but it provided also that such decision, on any question “touching” the contract, should be a condition precedent to the right of the contractor to receive money under- the contract. In other words, the contractor could not, under this, provision, be paid the current or final estimates until questions affecting his right to be paid for the work performed had been determined by the engineer. One of the questions affecting his right to be paid was whether damages for delay were not deductible under the terms of the contract from any sums payable. It is to be borne in mind that under article 10 of the contract it was provided that, if the contractor should fail to complete satisfactorily the entire work on or before the date stipulated, the town should deduct from payments due him the sum of $10 per day as liquidated damages, and that, if he should complete the work in advance of that date, he should be paid additional compensation of $10 per day for the time saved. The contract thus fixed the amount to be deducted from the contract price or added to it, all depending upon the completion.of the work, which was essentially a question relative to the fulfillment of the contract which it was necessary to decide before the stipulated amount could be deducted from or added to payments made the contractor, as the contract provided should be done. Not only, therefore, does the submission of the question as to such matters fall within the express language used, as. a question touching the contract and relating to its fulfillment, but it appears also that such submission was within the clear intendment of the parties, as without a determination of such matters it would be impossible to make the deductions or additional payments contemplated by the contract. The purpose of providing for arbitration by the engineer in construction contracts of this character is to avoid the expense and uncertainty of a very difficult sort of litigation. The engineer who supervises the work is better qualified than any judge or jury can possibly be to determine such questions as whether the contractor has fulfilled the contract, what is the value of extra work ordered, or what extensions of time are proper for the completion of the work. And for the same reason, he is better qualified than any one else to determine when the work under the contract should be completed 'and the provision as to damages for delay applied. It is well settled that questions as to damages arising from delay in the performance of such contracts or the right to liquidated damages on account of such delay may be referred to arbitration by a clause in the contracts themselves; and that in such ease the award of the arbitrator so named is binding upon the parties. Roberts, Johnson So Rand Shoe Co. v. Westinghouse Electric So Mfg. Co. (C. C. A. 8th) 143 F. 218; Weld v. First Nat. Bank of Englewood, 255 Ill. 43, 99 N. E. 72; Jonathan Clark So Sons Co. v. City of Pittsburgh, 217 Pa. 46, 66 A. 154, 156; Conneaut Lake Agr. Ass’n v. Pittsburg Surety Co., 225 Pa. 592, 74 A. 620; Ruch v. York City, 233 Pa. 36, 81 A. 891. As was well said by the Supreme Court of Pennsylvania in the Jonathan Clark So Sons Case, supra, which involved the binding effect of an award denying liquidated damages: “Another complaint of the appellant is that the director had no authority to pass upon the claim of the city for $100 per day for delay in completing the work. One of the provisions of the contract was that the city might retain from the contractor, as liquidated damages for the noneompletion of the work within the time stipulated for its completion, the sum of $100 per day for each day’s delay. The arbitrator found that neither Jonathan Clark So Sons Company nor the Mercantile Trust Company had unduly delayed the construction of the reservoir, and that neither of the said parties should be charged the sum of $100 per day, nor any sum whatsoever, as liquidated damages for delay in completing the work. The delay may have been caused by the extra work required by the city;' but, be this as it may, this claim was disputed by the appellee, and its settlement came within the very broad powers conferred upon the director, authorizing him to pass upon ‘any question or dispute * * * respecting any matter pertaining to’ the contract.” In some cases it has been held that, because of the wording of the arbitration clause involved, a submission of the question of damages arising from delay was not authorized. See Ruch v. York City, supra; Somerset Borough v. Ott, 207 Pa. 539, 56 A. 1079; Young v. Crescent Development Co., 240 N. Y. 244, 148 N. E. 510; Smith Fireproof Construction Co. v. Thompson-Starrett Co., 247 N. Y. 277, 160 N. E. 369. But for the reasons above stated, we think that the contract here clearly contemplated and required such submission. And we,think it equally clear.that the right of the defendant to liquidated damages was passed upon by the engineer. As shown above, he determined the question in passing upon the estimates; and, upon protest by the plaintiffs, he notified them that he was acting under the contract in doing so and expressed his willingness to pass upon any questions which they might raise in regard thereto. So far as the record shows, they raised no such question either then or in filing their claim at the completion of the work in preparation for the passing of the final estimate, but accepted payment of the estimates, although deductions had been made from them on account of the liquidated damages, and raised no question with regal'd thereto when the engineer was determining the final amount to which they were entitled. As to the $1,200' item, the right of defendant to deduct this depends upon whether as a matter of law $10 per day was deductible as to each project on account of delay or only $10 per day for delay in the entire work covered by the contract. Without deciding whether this is a matter which falls within the provisions of the arbitration clause, we think that the parties did not invoke the decision of the engineer with regard to it and that consequently the court below was not precluded from considering the claim of plaintiffs with regard thereto by reason of his award. We think, also, that the court correctly held that only $10 per day was properly deductible under the contract for delay in the entire work and not $10 for delay as to each project. It follows that the court was in error in not directing a verdict for defendant on the $1,427.85 and $2,060 items covered by the judgment, and that only as it relates to the $1,200 item should the verdict and judgment against defendant be allowed to stand. The judgment below will accordingly be reversed and the case remanded for a new trial in accordance with this opinion, unless the plaintiffs shall remit in writing on the judgment in the District Court all of that judgment in excess of $1,200. If the plaintiffs shall make such remittitur within sixty days, the judgment of the District Court shall stand as affirmed. The costs of this appeal shall be taxed against the plaintiffs, the appellees herein. Reversed nisi. 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_genresp1	E	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. 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. David T. MASON, Plaintiff-Appellee, v. Francis D. DeGEORGE et al., Defendants-Appellants. No. 73-1676. United States Court of Appeals, Fourth Circuit. Argued July 16, 1973. Decided Aug. 13, 1973. Joseph B. Scott, Atty., U. S. Dept, of Justice (Harlington Wood, Jr., Asst. Atty. Gen., George Beall, U. S. Atty., Leonard Schaitman, Atty., U. S Dept, of Justice, Joel Cohen, Sarah Wilcox, Attys., Dept, of Health, Education and Welfare, on brief), for defendants-appellants. Joel J. Rabin and Diana G. Motz, Asst. Attys. Gen. of Md. (Francis B. Burch, Atty. Gen. of Md., Henry R. Lord, Deputy Atty. Gen. of Md., Judson P. Garrett, Jr., Asst. Atty. Gen. of Md., oñ brief) for plaintiff-appellee. Before CRAVEN, BUTZNER and RUSSELL, Circuit Judges. PER CURIAM: This appeal challenges the granting by the District Court of Maryland of an interlocutory injunction, under which the responsible officers of the Department of Health, Education and Welfare (hereafter referred to as HEW) were enjoined “from failing to provide funds to the Maryland State Department of Employment and Social Services sufficient to fund the public assistance programs administered by the Department of Employment and Social Services under Titles IV and XVI of the Social Security Act as amended, for the fourth quarter of fiscal year 1973. In computing the amount of funds, the defendants shall proceed as if the $24,682,831.00 drawn by the State of Maryland on March 19, 1973, had been paid to cover the fourth quarter Fiscal Year 1972 and the first quarter Fiscal Year 1973 for certain social services and such amount will not be offset in any way against monies otherwise due Maryland in the fourth quarter Fiscal Year 1973 or any future quarter * * *» The action concerns the method established by HEW to make available to the States the federal grants available to participating States under the provisions of the co-operative federal-state welfare programs created under Titles IV and XVI of the Social Security Act. These federal grants are based on a percentage of state expenditures, as authorized under the Act. The procedure under which these grants are made available to the participating state is carefully spelt out both in Sections 603(b) and 1383(b), as supplemented or implemented in 45 C.F.R. § 201.5. Forty-five days before the beginning of each quarter, the state submits to HEW its estimate, supported by such data as may be appropriate, of the total sum to be expended by the state under the programs for that quarter. HEW reviews that estimate and then certifies to the Secretary of the Treasury the amount it estimates to be the federal share, based on (A) the State’s statement of its estimated expenditures and the amounts and sources of the State’s share of those expenditures, (B) records showing the number of recipients under the programs in the state and (C) “such other investigation as the Secretary may find necessary”, reduced or increased, however, to the extent that the estimate for any prior quarter was greater or lesser than the amount estimated to be proper for the quarter under review. The Secretary of the Treasury thereupon issues a letter of credit in the amount so certified to him by HEW, against which the state can draw funds as needed. The District Court, in reviewing this procedure, correctly emphasized that the letter of credit did “not itself constitute a grant, but merely constitute(s) the payment system.” Moreover, as the District Court properly construed the procedure a letter of credit may not be drawn against for any purpose not in the award grant against which the specific letter of credit was issued. At the end of the quarter for which an award has been made and a letter of credit is issued, the state reports to HEW its actual expenditures under the award and this provides the mechanism whereby HEW can adjust its award for the next quarter by either increasing or lessening to the extent there was either a deficit or surplus in the earlier amount awarded. The system thus established serves the interests both of the participating states and of the federal government. On the one hand, it provides a means whereby the federal government promptly makes available to the states the federal contribution and, on the other hand, it protects the federal government from over-funding state programs, an important consideration in the light of the present cost of federal borrowings. The dispute between the parties arises out of the grant award made by HEW in favor of the State of Maryland on account of estimated expenditures for the second quarter of fiscal year 1973 (i. e., October through December, 1972). Because of a considerable expansion expected in the State’s programs for that quarter, a grant award in the amount of $38 million was made for the State of Maryland and a letter of credit was duly issued in favor of the State for that amount. The expected expansion did not occur; and, following the established procedure, Maryland in February, 1973, submitted its statement of expenditures made during the second quarter of fiscal year 1973. This report indicated that the federal share of such expenditures was approximately $6 million. When HEW prepared its grant award for the fourth quarter of fiscal year 1973 (i. e., April through June, 1973), it proceeded in accordance with its statutory duty to “reduce” by the amount of the unused second-quarter award (i. e., $32 million) the estimated $6 million federal share of expenditures for the fourth quarter. This resulted in a “negative grant award” of $26 million. It is, however, the contention of the State of Maryland that, during the third quarter of fiscal year 1973, an official of the State telephoned an officer in HEW, requesting an increase in Maryland’s letter of credit to cover the federal share in additional expenditures in the approximate amount of $25 million, claimed by the State to have been made under its public assistance programs in the fourth quarter of fiscal year 1972 and first quarter 1973, for which there had been no awards theretofore requested, reviewed by HEW or granted by HEW. The officer of HEW, it seems, increased the letter of credit as requested, despite the absence of any award. Funds as covered by this increased letter of credit were received by the State. According to the contention of HEW, on the other hand, this payment made on account of expenditures for which it asserts no valid award had been made was improper. Until there had been an award made by HEW, on the basis of a review of the State’s application for a supplemental award for these additional expenditures in earlier quarters, the State, according to HEW’s argument, was never legally entitled to be reimbursed for such claimed expenditures, made in earlier quarters, out of funds awarded exclusively for expenditures incurred in the third quarter of fiscal year 1973. Accordingly, the “negative award,” which eliminated any right of the State to an award for fourth quarter 1973, was, in the view of HEW, entirely proper and in keeping both with statutory authority and with valid departmental regulation. The State, however, urges that the increase in the letter of credit, authorized by telephone by an employee of HEW, operated as a supplemental award, even though the expenditures had not been reviewed by the proper division of HEW. For this reason, the State takes the position the “negative award” was improper. In keeping with this contention, the State brought this action to void this “negative award” and to require HEW to make awards'for expenditures estimated for fourth quarter, fiscal year 1973, and subsequent quarters, without reduction on account of such “negative award.” And, asserting irreparable injury, the State requested interlocutory relief, contending that unless such relief was granted, the entire public assistance programs of the State would be put in jeopardy, a “fiscal crisis” could be generated, and “the needy residents of the State who are recipients of its public assistance programs are likely to suffer irreparable injury.” Applying the three-pronged test established by this Court in Long v. Robinson (4th Cir. 1970) 432 F.2d 977, 979, the District Court granted an interlocutory injunction and the defendants have appealed under the authority of Section 1292, 28 U.S.C. We reverse and vacate the order of the District Court granting an interlocutory injunction. An essential basis for a grant of an interlocutory injunction is a showing of irreparable harm. At the hearing in this Court, it was stated that the sums drawn by the State under the disputed letter of credit to meet expenditures made in the earlier quarters had not been paid out but were being kept in hand awaiting the disposition of this case. While this action is before the Court, such sums can be used by the State to cover any current or future awards, not covered by the issuance of contemporary letters of credit, until the “negative award” has been exhausted. In fact, that was the very purpose and effect of the “negative award.” Payment from such fund to meet, in whole or in part, future federal contribution is perfectly legitimate. The only inconvenience that the State may suffer from following such procedure is that it will be delayed in obtaining reimbursement for sums which it claims it was entitled to in fourth quarter of fiscal year 1972, April through June, 1972, and first quarter of fiscal year 1973, July through September, 1972, which it had previously not included in its statement of expenditures as filed by it in the regular course at the end of such quarters. This may be inconvenient but it represents no threat to either the current or future operations of its public assistance programs. But this inconvenience is attributable, in large part at least, to the fact that, when it submitted its statement of expenditures for the fourth quarter of fiscal year 1972 and the first quarter of fiscal year 1973, the State neglected to include such expenditures and is, therefore, in the position of being required to file a request for supplemental award to cover them. Clearly, the current operations of the State’s public assistance programs are not threatened by the failure of HEW to reimburse it for these past payments. The finding of irreparable harm was, in view of admissions made by the State in hearing before this Court, clearly erroneous. It is unnecessary for us to consider at this time the additional point made by HEW that the finding by the District Court that there is a reasonable likelihood that the State will prevail on the merits is likewise erroneous, though we might add that the issues between the parties seem more complex to us than apparently they did to the District Court. Interlocutory Injunction vacated and cause remanded to the District Court for further proceedings. . See 42 U.S.C. §§ 603(b), 1383(b) (1970). . It was stated in oral argument in this Court that the State has filed an application for a supplemental award on account of these earlier expenditures and such application for a supplemental award is apparently under review now in HEW. . HEW indicated during argument that the State’s application for a supplemental award was being reviewed. It is hoped that such review may be expedited and HEW may make whatever is a proper certification in favor of the State on account of this application promptly, thereby eliminating this controversy between state and federal government and relieving the courts of any responsibility in this situation. 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_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. DIESEL TANKER F. A. VERDON, INC., as owner of the tank vessel F. A. Verdon, Libellant-Appellant, v. STAKEBOAT NO. 2 and Bronx Towing Line, Inc., Claimant-Respondent-Appellee. BRONX TOWING LINE, INC., as owner of the Stakeboat No. 2, Libellant-Appellee, v. TANK VESSEL F. A. VERDON and Diesel Tanker P. A. Verdon, Inc., Claimant-Respondent-Appellant. No. 220, Docket 28549. United States Court of Appeals Second Circuit. Argued Dec. 4, 1964. Decided Jan. 19, 1965. Stephen J. Buck ley, New York City (Christopher E. Heckman, Foley & Martin, New Yoxit City, on the brief), for appellant. Herbert B. Halberg, New York City (Maurice A. Krisel and Krisel & Beck, New York City, on the brief), for appellee. Before FRIENDLY and SMITH, Circuit Judges, and BLUMENFELD, District Judge. Sitting by designation. BLUMENFELD, District Judge: These two appeals briefed and argued together present a problem of applying the same principles of admiralty law to opposing sides of the same controversy. The owners of two ships each brought a libel against the other and the two actions wex'e consolidated for trial below. The owners of the tanker F. A. Verdón and the Stakeboat No. 2 each contended that the other’s vessel was solely responsible for a collision which occurred in Red Hook Flats, New York Harbor, during the night of June 15, 1960. The District Judge concluded that the collision was caused by negligent operation of the Verdón. He was unable to determine whether or not the Stake-boat No. 2 was unlighted, as the Verdón claimed. He dismissed the Verdon’s libel and awarded Stakeboat No. 2 full damages against her. We affirm the dismissal of the Verdon’s libel and the conclusion that she was at fault and thus liable to Stakeboat No. 2, but disagree with the allowance of full damages to the latter. The significant facts as found by the court below are not complicated. A collision took place in a Fedex-al Anchorage in Red Hook Flats between anchored Stakeboat No. 2 and the tanker F. A. Verdón on the night of June 15, 1960. The collision occurred at 11:35 p. m. At that time, no one was aboard the stakeboat. Visibility was limited by haze, intermittent fog and smoke; but navigation and shore lights, a mile and a half away, could readily be seen. The Verdon’s captain and the deck hand, an able seaman, were in the wheelhouse. About 3 or 4 minutes before the collision, the wheel had been turned over to the deck hand with orders to hold the ship “steady as she goes.” Meanwhile, the captain was watching for traffic in the main ship channel, off his port side. There was no lookout on the tanker’s bow. The Verdón is a tank vessel 204.5 feet long with her wheelhouse located approximately 180 feet back from her bow. The Verdón was in a light condition and proceeding at a full speed of 8 to 9 knots, well in excess of the permissible speed of 6 knots. This raised the bow higher above the surface of the water than the stem and produced a “blind area” for 30 or 40 yards ahead of the bow for one in the wheelhouse. The radar was on, but the captain did not look at it. The stake-boat, 92 feet in length and constructed of steel, would have made a good radar target. Neither the captain nor the deck hand saw the stakeboat until after the collision. One of the strongly contested factual issues was whether the stakeboat carried forward a white light visible all around the horizon at the distance of at least one mile as she was required to do. 33 U.S.C. § 180. After a careful consideration of conflicting oral testimony in which credibility was, in some measure, a factor for the trier to weigh, and of circumstantial evidence from which the reasonableness of inferences to be drawn were also within the power of the trial judge to resolve, he found, “I cannot affirmatively find that, on the night of the collision, the white light was burning.” On the other hand, he stated, “I am not persuaded that the white light was not burning.” To leave no room for doubt as to what he found on this issue, he continued, “I freely confess my inability to make a definite finding one way, or the other.” When the owner of the Verdón brought its case into court it assumed the affirmative. With respect to the factual issue of whether the stake-boat was lighted, the burden of proof rested upon it. The general principle was stated in Commercial Molasses Corp. v. New York Tank Barge Corp., 314 U.S. 104, 112, 113, 62 S.Ct. 156, 161, 162, 86 L.Ed. 89 (1941): “Wherever the burden rests, he who undertakes to carry it must do more than create a doubt which the trier of facts is unable to resolve * * * ‘If the determination of this question is left in doubt, that doubt must be resolved against’ the shipowner.” Since the Verdón did not carry the burden of establishing fault on the part of the stakeboat, her libel was properly dismissed. “Where the fault is wholly on one side, the party in fault must bear his own loss, and compensate the other party, if such party have sustained any damage.” The Clara, 102 U.S. 200, 202, 26 L.Ed. 145 (1880). A somewhat more troublesome question is presented on the appeal from the judgment awarding full damages to the owner of the stakeboat. The court’s conclusions and findings that the tanker was grossly at fault in proceeding through the anchorage in excess of the speed limit with no lookout forward and no one paying any attention to the radar were amply supported. But its fault alone was not sufficient to support the award of full damages to the stakeboat. “In a cause of collision, the plaintiff, in order to recover entire damages, must prove both care on his own part and want of it on the part of the defendant.” The Clara, supra, 102 U.S. at 203. Bruce v. Debuse Barras Co., 169 F.Supp. 90, 92 (E.D. La.1958). Although the negligent navigation of the Verdón was clearly established, Stakeboat No. 2 did not affirmatively satisfy its burden of persuading the trier that it was lighted. Article 11 of the Inland Rules of the Road, 33 U.S.C. § 180, in force at the time of the collision, reads in part as follows; “A vessel under one hundred and fifty feet in length when at anchor shall carry forward, where it can best be seen, but at a height not exceeding twenty feet above the hull, a white light in a lantern so constructed as to show a clear, uniform, and unbroken light visible all around the horizon at a distance of at least one mile:” Despite the stakeboat’s failure to prove its compliance with the duty to display a light, the opinion below, after holding that there was no excuse for the Verdon’s faults, continued: “In comparison with them, the sin of the stakeboat, if any, was venial, and should be condoned [cited eases omitted]. Consequently, I conclude that the collision was caused solely through the faults of the Verdón, * * ” Although findings of fact in suits in admiralty must be accepted unless they are “clearly erroneous,” McAllister v. United States, 348 U.S. 19, 20, 75 S.Ct. 6, 8, 99 L.Ed. 20 (1954) ; Cunningham v. Rederiet Vindeggen A/S, 333 F.2d 308, 312 (2d Cir. 1964), we are not so limited as to erroneous views of the law. To the extent that conclusions may have been reached by the application of an erroneous rule of law to the facts found, they are open to full review. Castro v. Moore-McCormack Lines, Inc., 325 F.2d 72, 75-76 (2d Cir. 1963). Cf. American Technical Mach. Corp. v. Caparotta, 339 F.2d 557 (2d Cir. 1964). Even in the absence of any regulations, under established principles of admiralty law, the risks to other vessels created by a vessel lying at anchor at night without lights, even though in a permissible place, can hardly be regarded as trivial. The creation of undue risks of injury is negligence. The James Gray, 62 U.S. (21 How.) 184, 189, 16 L.Ed. 106 (1859). And, where the duty is imposed by statute, 33 U.S.C. § 180, compliance has been held to be imperative. American Dredging Co. v. Calmar S.S. Corp., 121 F.Supp. 255 (E.D.Pa.1954), aff’d per curiam, 218 F.2d 823 (3d Cir. 1955), held that the dredging company was under an absolute obligation to have proper anchor lights upon its anchored mudscows. And see Bruce v. Debuse Barras Co., supra, 169 F.Supp. 90, cases at 92, n. 8. As pointed out by Judge Learned Hand in Merritt-Chapman & Scott Corp. v. Cornell S.S. Co., 265 F.2d 537, 539 (2d Cir. 1959), “a different rule applies to the breach of a statutory duty from the breach of an ordinary duty. The doctrine of The Pennsylvania, 19 Wall. 125, 136, 22 L.Ed. 148, is that when the fault consists in the breach of a ‘statutory rule intended to prevent collisions * * * the burden rests upon the ship of showing, not merely that her fault might not have been one of the causes, or that it px'obably was not, but that it could not have been.’ ” It was held in Tide Water Associated Oil Co. v. The Syosset, 203 F.2d 264 (3d Cir. 1953), that there is no room for application of the major-minor fault rule where there is a violation of a statutory requirement intended to avoid collisions for the reasons given at pages 268-269, and more thoroxxghly explained by Judge Friendly in In re Kinsman Transit Co., 338 F.2d 708, 720 (2d Cir. 1964), where he revealed the court’s awareness of the view held by some that “results of the equal division principle which are sometimes quite as shocking as those of the common law bar for contributory negligence— especially in cases where xeliance by a relatively innocent plaintiff on the ‘major-minor fault’ exception has been thought to be barred by the rule of The Pennsylvania, 19 Wall. (86 U.S.) 125 [22 L.Ed. 148] (1874), that a party to a collision who has violated a statutory rule of navigation may not escape liability except on proof that the violation could not have contributed to the accident. See MacIntyre, supra [The Rationale of Last Clear Chance] 53 Harv.L. Rev. at 1236-41; Gilmore & Black, Admiralty, 403-407, 438-442.” Nevertheless, we have unequivocally adhered to the doctrine of The Pennsylvania, 86 U.S. (19 Wall.) 125, 22 L.Ed. 148 (1874). Topor-Taparek v. Socony Mobil Oil Co., 339 F.2d 792 (2d Cir. Dec. 29, 1964). Thus, where the breach of duty is statutory, it is the impossibility that it may have been one of the causes of the collision, not the forgivability of one which did, that affords relief fxom liability for that violation. No tour de force can transmute the minor fault among varying degrees of negligence into the non-existence of proximate cause. See In re Kinsman Transit Co., supra. The crucial omission in the stakeboat’s libel is the absence of a finding that its violation “could not have contributed to the accident.” Having found that Stake-boat No. 2 did not meet its burden of proving that it was lighted as required by the statute, under the rule administered in American admiralty the trial court ■should have required her to bear half her loss. The decree must, therefore, be reversed, and the case remitted to the court below for the purpose of carrying this .division into effect. . This section has been amended as of August 5,1963, Pub.L. 83-84 § 1, 77 Stat. 116. Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number. Answer:
songer_respond2_7_5	F	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the second listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine 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). SEAGRAVE CORP. v. MOUNT et al. SPAIN et al. v. MOUNT et al. Nos. 11914, 11915. United States Court of Appeals, Sixth Circuit. April 23, 1954. Walter M. Shohl, Cincinnati, Ohio (Allen I. Pretzman, Noel L. Greenlee, Columbus, Ohio, on the brief), for appellants. George E. Netter, New York City, Robert S. Marx, Cincinnati, Ohio (Robert N. Gorman, Cincinnati, Ohio, Robert Dow Hamilton, Columbus, Ohio, on the brief), for appellees. Before ALLEN, MARTIN and MILLER, Circuit Judges. MILLER, Circuit Judge. Appellees, minority stockholders in The Seagrave Corporation, hereinafter called Seagrave, brought a stockholders’ derivative suit against Seagrave and its officers to enjoin them from carrying out a proposed transaction between Seagrave and Herbert A. Post, Incorporated, hereinafter called Post, which provided for the purchase by Seagrave from Post of all the common stock of The Fyr-Fyter Company, hereinafter called Fyr-Fyter, on the ground that it was unfair to Sea-grave and its stockholders and in violation of the fiduciary duty of the officers and dominant stockholders to Seagrave and all its stockholders. The District Judge held the plan to be unfair and illegal, and enjoined the defendants from consummating the transaction. Separate appeals by Seagrave and by its officers were consolidated and heard together. The underlying facts, which are not in controversy, are as follows: Seagrave, a Michigan Corporation, has its principal place of business in Columbus, Ohio. Its principal product is motorized firefighting equipment. It has an authorized capital of 125,000 shares of common stock of the par value of $5 per share, of which there are issued and outstanding 122,700 shares. The ten plaintiffs own 800 shares. The Fyr-Fyter Company, an Ohio corporation, is engaged in the manufacture of portable fire extinguishers and other items of fire-fighting equipment. Its capital consists of 40,000 shares of common stock of the par value of $5 per share, owned by Herbert A. Post, Incorporated, and 20,000 shares of 5% cumulative preferred stock of the par value of $30 per share, of which William McKinley Wetzel owns at least 9,485 shares, and Mr. Marlier, a friend and business associate of Wetzel, owns 10,000 shares. Wetzel is the owner of all the issued and outstanding stock of Post. Fyr-Fyter owns the stock of the Wooster Brass Company, which it operates as a division of its business. Seagrave’s chief competitor is American-LaFrance Foamite Company, which not only manufactures motorized firefighting equipment, but also portable fire prevention equipment, such as is manufactured by Fyr-Fyter. Seagrave has no affiliation with any company manufacturing portable fire prevention equipment. The proposed transaction now under attack would join Seagrdve with Fyr-Fyter and its subsidiary the Wooster Brass Company for the purpose of enabling Seagrave to better meet the competition of American-LaFrance. The plan provides for the purchase by Sea-grave from Post of all of the common stock of Fyr-Fyter, in consideration of the issuance and delivery to Post of 146,084 shares of Seagrave common stock, and for the purchase by Seagrave •from the holders thereof of not less than 95% of the 20,000 shares of 5% cumulative preferred stock of Fyr-Fyter of the par value of $30 per share, in consideration of the issuance and delivery to such preferred shareholders of Fyr-Fyter shares of 5% cumulative preferred stock of Seagrave, of the par value of $30 per share, on a share for share basis. This required that Sea-grave increase its authorized common stock to 268,784 shares and create a new issue of 20,000 of 5% cumulative preferred stock of the par value of $30 per share. The plan provided for an increase in the authorized common stock to 368,784 shares, thus authorizing 100,-000 shares of unissued common stock. A written agreement of date August 26, 1952 was entered into between Seagrave and Post containing the foregoing provisions. As a part of the over-all plan, Wet-zel, who owns all of the outstanding stock of Post, entered into contracts with approximately thirty stockholders of Seagrave for the purchase of 35,000 shares of the Seagrave stock at a price of $20 per share. Of these 35,000 shares, Arthur A. Marcus and Charles B. Wilkes, two of the seven Seagrave directors, are selling 1700 shares and 15,700 shares respectively. This purchase is conditioned upon consummation of the contract between Seagrave and Post and its approval by a majority vote of all outstanding Seagrave stockholders, after deducting from the total outstanding shares the stock of those stockholders who were under contract to sell to Wet-zel. This contract provides that the selling stockholders deliver to Wetzel, on the closing date therein referred to, the written resignations of four directors of the Company. Following approval of the plan by the Board of Directors of Seagrave, it was submitted to a special meeting of the stockholders of Seagrave on September 29, 1952, at which 97,168 shares voted in favor of the purchase, and 6,673 shares voted against the purchase. This action was filed shortly prior to the stockholders’ meeting, but by agreement the meeting was permitted to be held, but completion of the transaction was stayed pending the final ruling of the Court upon the merits. The evidence showed that as of June 30, 1952, Seagrave had capital and surplus of $2,377,158.37, while Fyr-Fyter and its subsidiary had capital and surplus of $1,087,986.72. For the four and one-half years prior to June 30, 1952 Seagrave earned $1,661,681, while Fyr-Fyter and its subsidiary earned $842,-095. In the eleven and one-half years prior to June 30, 1952 Seagrave earned $2,160,804, while Fyr-Fyter and its subsidiary earned $2,810,396. The years 1943-1947 were poor years for Seagrave. Its net earnings in 1946 and 1947 dropped to $25,213 and $36,791 respectively from $130,053 in 1941 and $124,-609 in 1942. In 1948, they jumped to $322,567. On the other hand, Fyr-Fyter and its subsidiary had two of its best years in 1946 and 1947 with net earnings of $318,244 and $334,393 respectively. In 1948, its net earnings were $298,268. The book value of the shares of Sea-grave as of June 30, 1952 was $19.37 per share. Upon consummation of the plan it would be $10.29 per share. The high and low sales prices on the New York Stock Exchange on August 22, 1942 for Seagrave common stock was 15 and 14y2 respectively. The evidence also showed that a group of investors, headed by Charles B. Wilkes, Arthur A. Brown, and Morton Globus, of New York City or environs, had over a period of time accumulated sufficient stock of Seagrave to constitute by the spring of 1951 a working majority for the election of directors and to enable them to accomplish the replacement of a majority of four of the seven board members with directors of their own choosing at the annual meeting in March 1951. This stockholder group, referred to as the Wilkes group, are represented on the board by Charles B. Wilkes, Robert B. Wilkes, Arthur A. Marcus and John J. McCarthy. The other three directors are H. B. Spain, President, J. Lester Stevenson, Vice-President, and Allen Pretzman, Counsel and Chairman of the Board, who constitute the active management. Their connection with the corporation long antedates that of the Wilkes group. Spain, Stevenson and Pretzman have been in disagreement with the dominant Wilkes group. The Wilkes group was insistent upon a dividend in excess of the current earnings which was strongly opposed by the management group. This, together with other differences, made an unhappy situation for these three to the extent that their resignations were probable if the Wilkes group continued to dominate the Board. Under the plan, the four members of the Wilkes group would resign as directors, Wetzel would name their successors, and Spain, Stevenson and Pretzman would continue with the Company, with Pretzman becoming local counsel and director instead of Counsel and Chairman of the Board. The Proxy Statement, sent out in connection with the stockholders meeting, gave the details of the plan together with appropriate background and financial information about the two companies. It recited the purpose and advantages of the plan. It referred to the proposed purchase by Wetzel of 35,000 shares at $20 per share and contained the statement, “such price being approximately one-third higher than the current market on the New York Stock Exchange.” It stated the proposed change of directors effective upon the consummation of the plan, advising that it was the intention of the Board to elect as the four new directors Wetzel and three others to be nominated by Wetzel, who had “not yet been determined.” It stated that consummation of the plan would vest voting control in Wetzel, who “does not at present contemplate any substantial change in the operating management.” No reference was made to any existing differences among the present directors. It stated that the Board of Directors of Seagrave (Arthur A. Marcus opposing) had approved the plan. The reason for the negative vote of Marcus was not given. The District Judge found that the conflict between the members of the Board of Directors was so bitter and intense that if it continued the logical consequences appeared to be either the resignation or discharge of Pretzman, Spain and Stevenson from their respective positions as Counsel, President and Vice-President of Seagrave; that Wetzel, who would gain control of Seagrave if the plan was consummated, had promised to continue to employ Pretzman, Spain and Stevenson in their respective positions with the Corporation; that the proxy statement did not inform the stockholders of the conflict among the directors or of the fact that Pretzman, Spain and Stevenson had definite reasons to believe that their continued employment by the Corporation would be more certain if the plan was consummated; that the members of the Wilkes group who would sell 35,000 shares of common stock to Wetzel under the plan would receive approximately $6 per share in excess of the current market value, or a total of more than $200,000 in excess of the current market value of said common stock; that the invested capital of Seagrave was several times greater than that of Fyr-Fyter and its subsidiary Wooster Brass; that in the last four and one-half years Seagrave earned for its common stockholders $1,661,681 while during the same period Fyr-Fyter and its subsidiary Wooster Brass earned $842,095; that each of the Directors had a substantial personal interest in the consummation of the proposed plan; that in the case of the four Directors representing the so-called Wilkes group the interest of such Directors and of the group which they represented was clearly in conflict with the interest of the minority stockholders; that these four directors did not act in the unprejudiced exercise of their judgment for the benefit of Seagrave and all its stockholders, but acted primarily in the special interest of the controlling group of stockholders; that Directors Pretzman, Spain and Stevenson, in considering and approving the proposed plan, did not act in the unprejudiced exercise of their judgment for the benefit of Seagrave and all its stockholders, but acted primarily because of their desire to continue in their present positions ; that the plan was inequitable, unfair and illegal; that the Directors in considering and approving the proposed plan did not act in good faith or with reasonable care, but on the contrary violated their fiduciary duties as directors; that the proxy statement was inadequate, incomplete, misleading, unfair and did not fairly inform the stockholders of all the material facts; and that the approval by the majority of the stockholders of the proposed plan, which was in violation of the principles of equity, was not binding upon the stockholders or the Corporation. Appellees contend that these findings are supported by the evidence, are not clearly erroneous, and must be accepted on this review under Rule 52(a), Rules of Civil Procedure, 28 U.S.C.A. Appellants contend that since substantially all of the testimony was submitted to the Court in written form with the District Judge not seeing or hearing the witnesses, the District Judge had no better opportunity of judging the credibility of the witnesses than does this Court, and that the findings of the District Judge are not accorded the finality which would otherwise attach under Rule 52(a). This appears to be the prevailing view throughout the Circuits. Letcher County v. De Foe, 6 Cir., 151 F.2d 987, 990; Orvis v. Higgins, 2 Cir., 180 F.2d 537, 539; Bowles v. Beatrice Creamery Co., 10 Cir., 146 F.2d 774, 780; Equitable Life Assur. Soc. v. Irelan, 9 Cir., 123 F.2d 462, 464; State Farm Mut. Automobile Ins. Co. v. Bonacci, 8 Cir., 111 F.2d 412, 415; Himmel Bros. Co. v. Serrick Corp., 7 Cir., 122 F.2d 740, 742. Accordingly, we do not accept the findings as controlling. The documentary and statistical evidence, including the details of the plan, are not in dispute, but we will make our own evaluation of the conclusions to be drawn from them on this review. Letcher County v. De Foe, supra. Appellees successfully contended in the District Court, and renew the contention here, that the underlying provisions of the plan caused the proposed purchase to be unfair and equitable to the minority stockholders of Seagrave. They rely chiefly upon the material difference in the net assets of the two companies, the fact that the earnings of Sea-grave over the past four and one-half years were approximately double those of Fyr-Fyter and its subsidiary, and the decrease in book value of Seagrave stock from $19.37 per share to $10.29 a share upon consummation of the plan. Appellants urge upon us that the fairness of the plan involves numerous factors, including, in addition to the ones referred to, such intangible ones as good will, effect of existing patents, recent and prospective earning power, and the competitive situation in the industry. They point out that regardless of the difference in the net assets, the annual net profits of Fyr-Fyter have been more consistent than those of Seagrave, and over the period of the past eleven and one-half years, instead of the four and one-half considered by the District Judge, Fyr-Fyter’s net profits have exceeded those of Seagrave. They contend that the economic fairness of the plan is a matter of business judgment, in the exercise of which the action of the Board of Directors and the majority of the stockholders is controlling, and that majority stockholders are at liberty to dispose of their shares at any time and for any price to which they may agree without being liable to other stockholders. As a general proposition appellants are correct in this contention. United Milk Products Corp. v. Lovell, 6 Cir., 75 F.2d 923, 927, certiorari denied 295 U.S. 751, 55 S.Ct. 831, 79 L.Ed. 1696; Roby v. Dunnett, 10 Cir., 88 F.2d 68, 69. However, there are recognized exceptions to the general rule, such as where fraud is involved in the actions of the dominant directors and stockholders, where controlling stockholders turn over their shares to purchasers who mismanage the corporation or loot the corporate assets, where non-controlling stockholders are induced to sell their shares by concealment of the fact that a premium is to be paid to the controlling stockholders, where controlling stockholders or directors make a secret profit from a transaction, or where directors are dealing directly with the corporation to their own personal advantage, known or unknown. Ashman v. Miller, 6 Cir., 101 F.2d 85, 90; Oil Shares v. Kahn, 3 Cir., 94 F.2d 751, reversed on other grounds, Oil Shares v. Commercial Trust Co., 304 U.S. 551, 58 S.Ct. 1059, 82 L.Ed. 1522; Kroese v. General Castings Corp., 3 Cir., 179 F.2d 760, 763, 15 A.L.R.2d 1117; Moulton v. Field, 7 Cir., 179 F. 673; In-suranshares Corp. of Delaware v. Northern Fiscal Corp., D.C., 35 F.Supp. 22. A recognition of this general principle and the exceptions to it removes from the case a great deal of what has been argued to us by the parties on this appeal. The fairness of the plan to the stockholders of Seagrave is questionable, but its provisions are not so inequitable or so at variance with what sound business judgment would call for under existing business conditions, as to constitute actual fraud on the part of the directors. We find it unnecessary to discuss and compare the alleged inequities and the claimed advantages. It is a matter which addresses itself to the business judgment of the directors and those in control of the destinies of Seagrave. United Milk Products Corp. v. Lovell, supra, 75 F.2d at page 927. We also agree with appellants’ contention that the case does not fall within any of the other classifications referred to above, such as where directors are dealing directly with the corporation for their own personal advantage, or are making a secret profit for themselves in a corporate transaction. The profit from the sale of their stock to Wetzel at $20 per share was fully disclosed by the Proxy Statement. Appellees’ contention and the finding of the District Judge, that the Proxy Statement was incomplete, misleading, and did not fairly inform the stockholders of the material facts, are not, in our opinion, sustained by the evidence. The factual situation is explained in detail by the Proxy Statement, which contains a copy of the Plan and financial statements of the two companies giving the information hereinabove referred to. It appears to us to be a complete and fair statement of the Plan and the expected result of the merger. Appellees strongly stress its failure to refer to the existing differences between the two factions on the Board of Directors. As hereinafter pointed out, we think such dissention plays a part in the final ruling on this case. But it has little, if any, bearing on the intrinsic merits of the Plan, and is an intangible factor difficult to accurately portray, any statement of which is potentially misleading or prejudicial to at least some of the stockholders. What effect, if any, it would have had on the voting is not shown. In our opinion, a statement concerning it in the Proxy Statement, would have probably influenced votes in favor of the Plan, and would have been definitely prejudicial to appellees. We do not consider the omission prejudicial to appellees. We are of the opinion, however, that the case is controlled by the fundamental principle of equity governing the personal transactions of fiduciaries in matters involving the interests of those to whom the fiduciary duty runs. As expressed by then Chief Justice Cardozo of the Court of Appeals of New York in Meinhard v. Salmon, 249 N.Y. 458, 164 N.E. 545, 546, 62 A.L.R. 1: “Many forms of conduct permissible in a workaday world for those acting at arm’s length, are forbidden to those bound by fiduciary ties. A trustee is held to something stricter than the morals of the market place. Not honestly alone, but the punctilio of an honor the most sensitive, is then the standard of behavior. As to this there has developed a tradition that is unbending and inveterate. Uncompromising rigidity has been the attitude of courts of equity when petitioned to undermine the rule of undivided loyalty by the ‘disintegrating erosion’ of particular exceptions.” A director is a fiduciary. So is a dominant or controlling stockholder or group of stockholders. Pepper v. Litton, 308 U.S. 295, 306, 60 S.Ct. 238, 84 L.Ed. 281; Southern Pacific Co. v. Bogert, 250 U.S. 483, 491-492, 39 S.Ct. 633, 63 L.Ed. 1099; Wagner Elec. Corp. v. Hydraulic Brake Co., 269 Mich. 560, 566, 257 N.W. 884. When the dual relationship of individual and fiduciary creates a conflict of interest the fiduciary relationship must prevail. The Supreme Court said in United Copper Securities Co. v. Amalgamated Copper Co., 244 U.S. 261, at pages 263-264, 37 S.Ct. 509, at page 510, 61 L.Ed. 1119, that questions of internal management are ordinarily left to the discretion of the directors, and “Courts interfere seldom to control such discretion intra vires the corporation, except where the directors are guilty of misconduct equivalent to a breach of trust, or where they stand in a dual relation which prevents an unprejudiced exercise of judgment; * * * (Emphasis added.) This was repeated with approval by this Court in United Milk Products Corp. v. Lovell, supra, 75 F.2d 923, 927. In Ashman v. Miller, supra, 101 F.2d 85, 91, we again said: “It is too plain for citation of authority that a director of a corporation cannot barter or sell his official discretion or enter into any contract whatever that will in any way restrict or limit the free exercise of his judgment and discretion in his official capacity, nor can he place himself under any direct and powerful inducement to disregard his duty to the corporation and its stockholders in the management of corporate affairs.” See also: Thomas v. Matthews, 94 Ohio St. 32, 43, 60, 113 N.E. 669, L.R.A.1917A, 1068. In the present case, we are of the opinion that the personal interest of the directors representing the Wilkes group was involved to an extent which interferred with the unprejudiced exercise of judgment to which the minority stockholders were entitled. As part of their contract of purchase on behalf of Seagrave from Post (in practical effect Wetzel) they were at the same time selling for themselves and others to Wetzel 35,000 shares of Seagrave stock at a price of $5 or more per share than was available on the open market. This price was not available to the minority stockholders. Nor was the purchase of any of this stock by Wetzel necessary to give Wetzel a majority of the voting stock of Seagrave. Against the background of dissention in the Board of Directors, the possibility of such an advantageous sale of this stock interest necessarily injected into the picture a personal interest which could affect the exercise of unprejudiced judgment with respect to the interests of the corporation and the minority stockholders. . The desire of the three management directors to get rid of the Wilkes group, to end the dissention which threatened their positions with the Company, together with Wetzel’s ■stated intention to make no substantial change in operating management if the plan was consummated, likewise injected into the picture a personal interest on the part of these three directors in favor of consummating the plan. Whether conscious of the effect or not, the combination of such factors deprived the stockholders of that impartial, unprejudiced action which the fiduciary relationship required. Although good faith on the part of the Directors and the disclosure of the material facts eliminate the question of actual fraud, equity will still act to enforce the fiduciary obligation under circumstances amounting to constructive fraud. Constructive fraud refers to acts which may have been done in good faith, with no purpose to harm the corporation, but which are done by one who has placed himself in a position of conflict between a fiduciary obligation and his own private interests. In such a situation, by reason of the strict rule applicable to fiduciaries, equity will take appropriate action to prevent the harm resulting from such actions, regardless of the good intentions of the fiduciary. Levitan v. Stout, D.C.W.D.Ky., 97 F.Supp. 105, 117; Epstein v. United States, 6 Cir., 174 F.2d 754, 765-766; Hyams v. Calumet & Hecla Mining Co., 6 Cir., 221 F. 529, 542-543. Appellants contend that because a large majority of the shares voted at the stockholders’ meeting were in favor of the purchase, the action of the directors was ratified. We must take into consideration the influence of the Wilkes group, the solicitation and use of proxies by management, and the previous action of the directors in determining the effect of such an alleged ratification. Under the circumstances, we do not consider it a valid ratification. Hyams v. Calumet & Hecla Mining Co., 6 Cir., supra, 221 F. 529, 541-542; Kahn v. Schiff, D.C.S.D.Ohio, 105 F.Supp. 973, 976. See also Geddes v. Anacondo Mining Co., 254 U.S. 590, 591, 599, 41 S.Ct. 209, 65 L.Ed. 425. In any event, in order to amend the charter, as required by the Plan, it was necessary under the law of Michigan, the State of incorporation, to obtain the vote of the majority of the outstanding shares, which would require 61,351 shares. Not counting the vote of the 43,-000 shares of the Wilkes group, only 53,979 shares voted in favor of the proposed change. The judgment is affirmed. Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". 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_r_bus	99	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. ASSOCIATED MILK DEALERS, INC., et al., Plaintiffs-Appellees, v. MILK DRIVERS UNION, LOCAL 753, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA, Defendant-Appellant. No. 17577. United States Court of Appeals, Seventh Circuit. Feb. 6, 1970. Stephen A. Schiller, Solomon I. Hirsh, Joseph M. Jacobs, Albert Gore, Judith A. Lonnquist, Chicago, 111., for defendant-appellant; Jacobs & Gore, Chicago, 111., of counsel. Robert E. Cronin, William B. Hanley, Chicago, 111., for plaintiffs-appellees; MacDonald & Hanley, Chicago, 111., of counsel. Before DUFFY, Senior Circuit Judge, and SWYGERT and FAIRCHILD, Circuit Judges. SWYGERT, Circuit Judge. This appeal concerns a suit brought under section 301(a) of the Labor-Management Relations Act, 29 U.S.C. § 185(a), by the Associated Milk Dealers, Inc., (AMDI), a trade association of milk dealers, against the Milk Drivers Union, Local 753, International Brotherhood of Teamsters, Chauffeurs, Ware-housemen & Helpers of America. Various dairies, allegedly members of AMDI, intervened as plaintiffs. The suit alleged that the union breached its collective bargaining agreement, a standard Chicago area contract with individual dairies, by refusing to submit a dispute to arbitration. The district court granted plaintiffs’ motion for summary judgment and ordered the union to comply with the grievance and arbitration provisions of the agreement. Because genuine issues of material fact exist concerning the duty of the union to arbitrate the dispute in question and concerning the legality of the agreement under the antitrust laws, we reverse the district court’s grant of summary judgment and remand for trial. The appellant union represents delivery men employed by dairies and milk dealers in the Chicago area. The appellee, AMDI, is a nonprofit corporation which represents independently owned milk dealers in negotiating collective bargaining agreements with labor organizations. When a standard area contract is arrived at by the union and AMDI, individual milk dealers and not AMDI sign the agreement. In February 1967 the union entered into negotiations for a new standard area contract. AMDI and another employer association, Chicago Area Dairymen’s Association, (CADA), as well as a number of individual employers participated in the discussions. On August 29, 1967 AMDI, CADA, and the union signed a memorandum evidencing agreement to changes in the former contract. Copies signed by the union were sent to each employer for signature. The contract, effective from May 1967 to May 1970, was signed by the individual dealer plaintiffs in this action. The new contract, as set out in the memorandum, contained the following provision: The Union shall furnish the Dealers a letter of understanding that if certain conditions come into the market which would create an inequitable situation relative to store operations, they would meet with the dealers for the purpose of negotiating an appropriate adjustment of the situation. Pursuant to this provision, a memorandum of understanding was executed by AMDI, CADA, and the union on October 6, 1967. The memorandum reads in pertinent part: If certain conditions come into the market, which would create an inequitous (sic) situation relative to the store operations, or a similar situation effecting retail, the Union will meet with the Dealers upon written request for the purpose of negotiating an appropriate adjustment of the situation. Although the parties differ as to the effect to be given the contract provision and the memorandum of understanding, they seem to agree that both writings contemplated the entry of Jewel Food Stores into the milk processing market in Chicago. On July 11, 1968 the union entered into an agreement with Hillfarm Dairy of the Jewel Food Stores Division, Jewel Companies, Inc. Hillfarm is a milk processor wholly owned by Jewel and serves Jewel Food Stores exclusively. The union contract with Hillfarm differed substantially from the standard area contract entered into the year before with the independent milk dealers. On July 25, 1968 William B. Hanley, attorney for AMDI, stated in a letter to the union that many provisions of the Hillfarm contract were more advantageous than those in the standard area contract and that the milk dealers would adopt those terms pursuant to Article 20, the “most favored nation” clause, in their contract. Article 20 reads as follows: Should the Union hereafter enter into any agreement with any milk dealer upon terms and conditions more advantageous to such dealer than the terms and conditions of this Agreement, or should the Union sanction a course of conduct by any milk dealer who has signed this form of agreement enabling him to operate under more advantageous terms and conditions than those provided.for in this Agreement the Employer shall be entitled to adopt such terms and conditions in lieu of those contained in this Agreement. At a meeting on July 30 the union refused to accede to this demand, maintaining among other things that the memorandum of understanding governed any inconsistencies between the standard area contract and the Hillfarm contract and that it was prepared to negotiate as required by the memorandum. On August 2, AMDI and CADA requested that the union comply with Article 6 of the standard area contract which provides : Any matter in dispute, between-the Union and Employer [excepting wages, and hours, as set forth in Articles 4, 37 and 41, and contributions to all existing Funds, as set forth in Articles 45, 47 and 48 and questions of jurisdictional matters, as decided by Teamsters Joint Council No. 25, which cannot be settled], shall be referred by either party to an Industry Labor Committee consisting of three [3] representatives of Employers, parties to this Agreement, and three [3] representatives of the Union. It shall be the duty of this Committee to hear and dispose of all complaints raised by either party to this Agreement concerning violations thereof that cannot be settled amicably between the parties. If this Committee is equally divided on any such complaint the Chief Justice of the Circuit Court or his nominee shall be called in to act as the impartial member of said Committee, and his decision shall be final. No action shall be taken by either party to the Agreement pending the decision of this Committee. The union refused. On August 20, AMDI filed this suit. requesting that an arbitrator be appointed to determine whether Article 20 of the contract provided for adoption by its members of the more favorable terms contained in the Hillfarm contract. After various preliminary motions, the district court characterized the dispute between the parties as whether' Hillfarm was a “milk dealer” within the terms of Article 20 of the contract. At the court’s suggestion AMDI moved for summary judgment. On February 24, 1969 the district court granted the motion and ordered the union to comply with Article 6. We think the standard area contract and the memorandum of understanding issued pursuant to it present genuine issues of material fact concerning whether the parties agreed to arbitrate disputes arising out of the contract between Hill-farm and the union. The district court’s findings in support of its order, announced from the bench, did not mention the memorandum of understanding and instead relied only upon the broad language of Article 6, the arbitration clause. The court’s reliance upon Article 6 can be interpreted in two ways: (1) that under the broad language of Article 6, the question of arbitrability was for the arbitrator and not the court; or (2) that the memorandum of understanding and the similar contract clause were not sufficiently specific for the court to rule that these provisions were designed to exclude arbitration over the dispute concerning the contract between Hillfarm and the union. The language of Article 6 is not so broad as to make arbitrability a question for the arbitrator. Though strongly favoring arbitration, the Supreme Court in John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 547, 84 S.Ct. 909, 913, 11 L.Ed.2d 898 (1964), stated, “[t]he duty to arbitrate being of contractual origin, a compulsory submission to arbitration cannot precede judicial determination that the collective bargaining agreement does in fact create such a duty.” The district court must determine whether the dispute between the parties is arbitrable, United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960), unless the parties voluntarily submit arbitrability to the arbitrator. Metal Products Workers Union, Local 1645 v. Torrington Co., 358 F.2d 103, 105 (2d Cir.1966). The party claiming that arbitrability is for the arbitrator to decide bears the burden of proof and must show that the contract clearly manifests such an intention, United Steelworkers v. Warrior & Gulf Navigation Co., supra, 363 U.S. at 583 n. 7, 80 S.Ct. 1347. AMDI has not satisfied this burden. The reference in Article 6 to “[a]ny matter in dispute” is insufficient, without further evidence of intent or express mention of the question of arbitrability, to demonstrate that the parties intended the arbitrator to decide arbitrability. Strauss v. Silvercup Bakers, Inc., 353 F.2d 555, 557 (2d Cir. 1965); Torrington Co. v. Metal Products Workers Union, Local 1645, 347 F.2d 93, 96 (2d Cir.1965). See also Drake Bakeries, Inc. v. Local 50, American Bakery & Confectionery Workers, 370 U.S. 254, 82 S.Ct. 1346, 8 L.Ed.2d 474 (1962). The district court should have allowed the parties to submit evidence concerning the effect to be given to the memorandum of understanding and the similar contract provision. The Supreme Court has recognized that a contract clause or a written collateral agreement can exclude disputes from arbitration, United Steelworkers v. Warrior & Gulf Navigation Co., supra at 584, 80 S.Ct. 1347. We think the contract and the memorandum of understanding here contemplate just such an exclusion although its scope is uncertain. Reference in the contract to meetings “with the dealers for the purpose of negotiating an appropriate adjustment of the situation” and in the memorandum of understanding to a similar meeting at the request of the dealers suggest negotiation through collective bargaining and not arbitration. The fact that Jewel or Hillfarm was not specifically mentioned is immaterial since both parties agree that the provisions in some way pertain to Jewel. The Supreme Court has held, however, that language to exclude a dispute from arbitration must be specific, United Steelworkers v. Warrior & Gulf Navigation Co., supra at 585, 80 S.Ct. 1347; Sheet Metal Workers v. Barber-Colman Co., 379 F.2d 533, 536 (7th Cir. 1967). As the Second Circuit said when confronted with the same problem, “* * * it is not clear how specific the provision must be in order to have this effect.” Strauss v. Silvercup Bakers, Inc., supra 353 F.2d at 557. AMDI contends that the standard area contract and the memorandum of understanding issued pursuant thereto called for negotiations only if Hillfarm signed a contract with a different union. In contrast, the union maintains that the contract provision and the memorandum contemplated negotiations concerning all disputes arising out of the entry of Jewel into the Chicago milk processing market. Both interpretations of the contract and memorandum of understanding are reasonable and plausible. The fact that two interpretations exist, one which would permit and the other prevent arbitration, does not mean that the district court must order the parties to proceed to arbitration. Strauss v. Silvercup Bakers, Inc., supra at 558. Bargaining history is relevant in determining whether parties intended to submit a particular dispute to arbitration. We have previously held that such evidence is admissible in an action to compel arbitration under section 301(a), Local 483, International Brotherhood of Boilermakers v. Shell Oil Co., 369 F.2d 526, 528 (7th Cir.1966); General Teamsters, Local 782 v. Blue Cab Co., 353 F.2d 687, 690 (7th Cir.1965). Here the district court should have considered parol evidence in order to determine the extent of the contractual duty to arbitrate under the contract and the memorandum of understanding. In reaching this conclusion we are not unmindful of the broad caveat in Supreme Court decisions against court interpretation of substantive provisions of collective bargaining agreements and consideration of the merits of a dispute through the interpretation of an arbitration clause. United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960); United Steelworkers v. Warrior & Gulf Navigation Co., supra. The question which the district court must decide upon remand of this case does not concern the merits of the dispute between AMDI and the union. Bargaining history concerning the merits of the dispute need not be considered, Local 12298, United Mine Workers v. Bridgeport Gas Co., 328 F.2d 381 (2d Cir.1964). The district court will not be required to interpret a broad exclusionary clause, (e. g., concerning management’s right to contract out work or to discharge employees) which inevitably involves consideration of the merits of the dispute; rather the court is called upon only to determine whether the parties intended to exclude a limited and particular dispute from arbitration. Regardless of the district court’s ruling on arbitrability after evidence is presented, interpretation of Article 20 of the contract by an arbitrator in this or future cases will not be affected. The union has presented another contention on this appeal which should be considered on remand of this case. The union argues that the most favored nation clause in the standard area contract violates the Sherman Act under United Mine Workers v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965), and that the illegality of that clause constitutes a defense to its duty to arbitrate. The district court summarily dismissed this contention without stating reasons. In so doing we hold the district court erred. Illegality under the Sherman Act is a defense of very limited applicability in an action based on contract. Kelly v. Kosuga, 358 U.S. 516, 518, 79 S.Ct. 429, 3 L.Ed.2d 475 (1959); Wilder Manufacturing Co. v. Corn Products Refining Co., 236 U.S. 165, 35 S.Ct. 398, 59 L.Ed. 520 (1915). The same rule applies to labor contracts, Lewis v. Seanor Coal Co., 382 F.2d 437, 441 (3d Cir. 1967). A claim that the contract violates the Sherman Act is properly allowed as a defense to the enforcement of contractual duties only when the failure to do so would “make the courts a party to the carrying out of one of the very restraints forbidden by the Sherman Act.” Kelly v. Kosuga, supra 358 U.S. at 520, 79 S.Ct. at 432; Continental Wall Paper Co. v. Louis Voight & Sons Co., 212 U.S. 227, 261, 29 S.Ct. 280, 53 L.Ed. 486 (1909). Under this exception the illegality of a labor contract clause under the antitrust laws can be asserted as a defense to the duty to arbitrate concerning the interpretation to be given the provisions of the illegal clause. Although the court does not actually enforce the illegal provisions of the contract until the parties seek enforcement of the arbitrator’s award, the court, by ordering arbitration, gives significant practical effect to the illegal clause. Furthermore, to await the arbitrator’s award before allowing the defense of illegality to be raised would be contrary to sound policy. Illegality under the antitrust laws concerns broad public interests transcending the private objectives of the parties. To discourage private enforcement by requiring the parties to await the arbitrator’s decision would be contrary to the objectives of the Sherman Act. Cf. Perma Life Mufflers, Inc. v. International Parts Corp., 392 U.S. 134, 88 S.Ct. 1981, 20 L.Ed.2d 982 (1968). AMDI urges that violations of the antitrust laws could be considered by the arbitrator. We disagree. Arbitrators are ill-equipped to interpret the antitrust laws and their consideration of possible violations would add little. Indeed an agreement requiring arbitration of private antitrust claims would probably be unenforceable, Silvercup Bakers, Inc. v. Fink Baking Corp., 273 F.Supp. 159, 162 (S.D.N.Y.1967). Thus we hold that if the union can establish that Article 20, the most favored nation clause, is illegal under United Mine Workers v. Pennington, supra, arbitration of the dispute between the parties is not required. In asserting that Article 20 violates the Sherman Act under the Pennington case, the union makes two arguments: (1) that most favored nation clauses are per se invalid under Pennington; and (2) that the district court erred in refusing to allow the union to submit evidence concerning the similarity of a most favored nation clause to the agreement in the Pennington case and concerning the intent of the parties in negotiating Article 20. We hold that most favored nation clauses are not invalid per se, but remand to allow the union to present evidence concerning its second argument. In its per se argument the union relies heavily on the words of Mr. Justice White whose opinion represents the views of three Justices in the Pennington case. According to the union’s interpretation, a per se violation of the Sherman Act occurs whenever a union engaged in multiemployer bargaining agrees to impose the provisions of a contract between union and some employers upon other employers who are not parties to the contract. The union argues that this rule applies without regard to the purpose of the parties to the contract in imposing restrictions on the union’s freedom to deal with employers not parties to the contract. It further maintains that the rule also applies to most favored nation clauses even though the restriction on a union’s freedom to bargain is imposed indirectly rather than directly as in Pennington. We do not think the Pennington case stands for the broad rule advanced by the union. Although some of the language of Mr. Justice White’s opinion may lend support to the union’s position, the actual holding of Pennington requires proof of the predatory purpose of the agreement between a union and the employers. Much of Mr. Justice White’s opinion concerns itself with the scope of the labor exemption from the antitrust laws rather than with the elements required to make out a violation. In holding that a violation could be proved on the basis of the evidence presented to the district court, however, Mr. Justice White emphasized the anti-competitive purpose of the United Mine Workers and the large coal operators in entering into the National Bituminous Coal Agreement. Furthermore, he relied also upon various other devices employed by the defendants to injure the plaintiff. United Mine Workers v. Pennington, supra. Mr. Justice Douglas, whose opinion also represents the views of three Justices, interprets Mr. Justice White’s opinion as requiring proof of predatory purpose. Thus although collective bargaining agreements with extra-unit effects constitute prima facie evidence of illegality, the jury can find a violation only if it is proved that the agreement “* * * was made for the purpose of forcing some employers out of business.” United Mine Workers v. Pennington, supra, 381 U.S. at 673, 85 S.Ct. at 1595. According to Mr. Justice Goldberg, whose concurring opinion in Pennington represents the views of the remaining three Justices, any other interpretation would run directly counter to the Congressional policy in favor of uniform wages and working conditions which prompted the enactment of the National Labor Relations Act, 381 U.S. 657, 699, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965). Therefore, a majority of the Supreme Court in Pennington requires proof of predatory purpose as a prerequisite to finding that a most favored nation clause violates the antitrust laws. Cf. Allen Bradley Co. v. Local 3, International Brotherhood of Electrical Workers, 325 U.S. 797, 65 S.Ct. 1533, 89 L.Ed. 1939 (1945). We believe the holding of Pennington also requires demonstration that most favored nation clauses operate in the same restrictive fashion as the agreement in that case. Without such proof we hesitate to say that the effect on competition is the same. Furthermore in this difficult area of conflict between labor and antitrust policy, appropriate policy considerations are best developed in a particular factual context. Although the union has failed to demonstrate that most favored nation clauses are per se violations of the antitrust laws, the district court nevertheless erred in granting summary judgment on the union’s antitrust claim. As previously indicated, compelling proof concerning the purpose of the adoption of Article 20 and its anticompetitive effect would be sufficient to make out a violation. In the district court the union requested an opportunity to present such evidence but was refused. In antitrust cases where, as here, intent and purpose play important roles, summary procedures should be avoided. Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 473, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962). We remand to allow the union to present evidence on these questions. The union raises a final point which deserves only brief mention. Since AMDI was not a party to the agreement between the milk dealers and the union, the union urges that this suit should have been dismissed by the district court or in the alternative AMDI should have been dismissed as a plaintiff. We disagree. Assuming without deciding that AMDI was not a proper plaintiff to enforce the terms of the standard area contract, such a defect was cured by the addition of various milk dealers, all parties to the contract, as plaintiffs. The continued presence of AMDI as a plaintiff after that point was at most a harmless misjoinder of parties. The union further maintains, without citing authority, that a demand for arbitration is a precondition to commencement of a suit under section 301(a). The union presented affidavits to demonstrate that Mr. Hanley, attorney for AMDI, was without authority to represent milk dealers concerning disputes in the interpretation of the standard area contract and that at no time was he empowered to demand arbitration on behalf of individual milk dealers. We think the authority of Mr. Hanley is irrelevant. Assuming arguendo that a demand for arbitration is required, we hold that the presence of milk dealers as plaintiffs constitutes a sufficient demand for arbitration in this case. A demand for arbitration serves only to provide notice of the nature of the dispute and to allow the party to comply before the commencement of costly litigation. The demand for arbitration by AMDI served this purpose. To require individual milk dealers to make perfunctory demands upon the union before joining as plaintiffs would be an excessively technical and meaningless gesture. Thus on remand this argument need not be reconsidered. For these reasons the entry of summary judgment by the district court is reversed and this case is remanded for trial. . The demand was made in a letter sent jointly by Mr. Hanley, and Morgan F. Murphy, Jr., attorney for CADA, which read in pertinent part: We have now been informed through our meeting of July 30, and Mr. Jacob’s letter of July 29, that we are not in agreement either as to the interpretation and application of Article 20 of our contract or as to our understandings reached through the process of our last collective bargaining sessions. Therefore, we request compliance with Article 6 of our Agreement which provides a method of settling disputes over terms and conditions of our Agreement. . On August 23, 1968 CADA filed a similar suit against the union. On September 9 the CADA suit was consolidated with AMDI’s, but on January 23, 1969 CADA sought and obtained an order of voluntary nonsuit of its cause. . The fact that the terms of Article 20 were previously held to be arbitrable under Article 6, Sidney Wanzer & Sons, Inc. v. Milk Drivers Union, Local 753, 249 F.Supp. 664 (N.D.Ill.1966), is therefore not determinative of the issue before the district court. . In Torrington Co. v. Metal Products Workers Union, Local 1645, supra, the Second Circuit held that an oral collateral agreement was sufficient to exclude matters from arbitration. . See generally Comment, Labor’s Antitrust Exemption After Pennington and Jewel Tea, 66 Colum.L.Rev. 742 (1966); B. Meltzer, Labor Unions, Collective Bargaining and the Antitrust Laws, 32 U.Chi.L.Rev. 659 (1965). . Hr. Justice White described the scope of the labor exemption from the antitrust laws as follows: “We have said that a union may make wage agreements with a multi-employer bargaining unit and may in pursuance of its own union interests seek to obtain the same terms from other employers. * * * But we think a union forfeits its exemption from the antitrust laws when it is clearly shown that it has agreed with one set of employers to impose a certain wage scale on other bargaining units.” United Mine Workers v. Pennington, supra. . Remand of this case will allow AMDI also to present evidence. Evidence may be introduced concerning the relationship of Perma Life Mufflers, Inc. v. International Parts Corp., supra, to the union’s antitrust claim in this case. Cf. Jewel Tea Co. v. Associated Food Retailers of Greater Chicago, 331 F.2d 547, 550-551 (7th Cir. 1964), rev’d on other grounds, sub nom., Local 189, Amalgamated Meat Cutters, AFL-CIO v. Jewel Tea Co., 381 U.S. 676, 85 S.Ct. 1596, 14 L.Ed.2d 640 (1965). . Thus the conflict concerning Mr. Hanley’s authority which clearly appears when the affidavits of Anthony Christiano, Robert Sugarman, and Albert Gore are compared with the testimony of )Walter Hedin, John Linton, and Peter McCormick is not a material factual dispute requiring reversal under Fed.R.Civ.P. 56(c). Question: What is the total number of respondents in the case that fall into the category "private business and its executives"? Answer with a number. Answer:
songer_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. Don Camby LOWTHER, PlaintiffAppellee, v. UNITED STATES of America et al., Defendants-Appellants. No. 72-1807. United States Court of Appeals, Tenth Circuit. Argued and Submitted May 24, 1973. Decided June 20, 1973. James H. Harrod, Oklahoma, Okl., for plaintiff-appellee. O. B. Johnston III, Asst. U. S. Atty. (William R. Burkett, U. S. Atty., on the brief), for defendants-appellants. Before PICKETT, HILL and DOYLE, Circuit Judges. WILLIAM E. DOYLE, Circuit Judge. The government here appeals a judgment of the District Court for the Western District of Oklahoma in favor of plaintiff-appellee awarding him the sum of $892.50 representing the reasonable market value of certain weapons which the government had seized and forfeited. These consisted of two-9 mm German Lugers, a Winchester 30 caliber rifle, one-9 mm Luger-Drum Magazine and two boxes of miscellaneous rifle and sub-machine gun parts. The events leading up to the seizure are important to an understanding of the problem presented to this court. On March 8, 1970, officers of the Alcohol, Tobacco and Firearms Division of the Internal Revenue Service in the process of executing a search warrant seized the weapons in question from the residence of plaintiff-appellee. He was subsequently arrested and charged in a criminal case for possession of firearms contrary to 26 U.S.C. §§ 5861(d) and 5871. The seizure by the government was pursuant to 26 U.S.C. § 5872 as having been used illegally. On May 20, 1970, the plaintiff-appellee filed a petition to the Director of the Alcohol, Tobacco and Firearms Division of the Internal Revenue Service claiming the five items of property which had been seized and asking for remission or mitigation of forfeiture of the said items. On October 8, 1970, appellee was tried in the criminal case and was acquitted on all nine counts. Notwithstanding this, on January 29, 1971, notice was given that the application for remission or mitigation had been denied. On January 7, 1971, apparently without the knowledge of the appellee, the weapons and parts had been destroyed by Alcohol, Tobacco and Firearms Division agents. Subsequently, on February 23, 1971, plaintiff-appellee filed the present action in the United States District Court for the Western District of Oklahoma. This took the form of a request for review of the Director’s decision. However, at the trial it appeared that the five items had been destroyed and the trial court treated the case as an action for damages, disregarding the plaintiff’s prayer for return of the items. As noted, a money judgment was entered. The basis for the court’s decision was that plaintiff had been acquitted of illegal possession of firearms in a criminal prosecution and that this was in effect an adjudication of the legality of the property and the plaintiff’s right to possess the same. The court reasoned that since the plaintiff was entitled to the possession and was in lawful possession the seizure was necessarily invalid. A seizure to be valid must be pursued, according to the court, by showing that the possession of the items be contrary to Title 26 U.S.C., Chapter 53. Therefore, the court continued, the imposition of the forfeiture contrary to law constituted an unconstitutional deprivation of the plaintiff’s property. The government asserts that the trial court lacked jurisdiction to grant relief because first, the administrative ruling on the petition for remission or mitigation was final and conclusive and not reviewable either directly or indirectly; secondly, it is contended that a court hearing was available to the appellee only by posting a cost bond within the time requirement of 26 U.S.C. § 7325. Failure to post the bond resulted in a waiver. The question is then whether by applying for remission of the penalty pursuant to 26 U.S.C. § 7327 rather than filing a bond pursuant to 26 U.S.C. § 7325 gave rise to a consent or tacit approval of the action of the Secretary or' his delegate in denying the application. An important‘factor is that the property here is neither narcotics nor other contraband. On the contrary, it was determined by the trial court to have been innocently used and to have not been illegal per se. Furthermore, the appellee was adjudged by the jury in the criminal case to be not guilty. Thus, the government must justify a taking and forfeiture which was unrelated to any violation of the law and which concerned property which was validly in possession of the appellee. It boils down then to the government’s having destroyed appellee’s property without having any authority in law to do it. Consequently, the action of the Director of the Alcohol, Tobacco and Firearms Division constituted a disregard of the evidence and law in the case and was contrary to the due process clause of the Fifth Amendment. Prior to the decision of the Supreme Court in United States v. United States Coin & Currency, 401 U.S. 715, 91 S.Ct. 1041, 28 L.Ed.2d 434 (1971), there was confusion as to the authority of officers of the government to seize and forfeit property. There were early cases which have held that such authority was absolute. Some of the older cases, on the other hand, held that an acquittal in a criminal case was a bar to the forfeiture and still other cases held that the criminal case and the forfeiture proceedings were interrelated and that the forfeiture could not be validly carried out unless there had been a conviction in the criminal case. Coin & Currency brought about some degree of order. It held first, that the forfeiture is criminal in character; secondly, it recognized the necessity for the owner of the property to have been using it in a criminal activity. It said that the forfeiture penalty is to be imposed only upon those who are significantly involved in a criminal enterprise. See 401 U.S. at 722, 91 S. Ct. 1041. It also questioned whether the forfeiture is an in rem proceeding since it is interrelated with the wrongdoing of the owner. Also, since Coin & Currency, doubts as to the unlimited discretion of the Secretary have been removed. He may not arbitrarily deny remission in disregard of the evidence and the law and at the same time escape judicial inquiry and scrutiny. As shown above, the Supreme Court has said that if the situation is sufficiently extreme, there will be court intervention. The form of court intervention is not defined, but this is not entirely new. Even the early cases such as Coffey v. United States, 116 U.S. 436, 6 S.Ct. 437, 29 L.Ed. 684 (1886), have said that acquittal in the criminal case allows the defendant to assert this judgment as a defense in forfeiture proceedings. This court has, in relatively recent times, recognized the vitality of Coffey. In the case of United States v. One 1956 Ford Fairlane Tudor Sedan, 272 F.2d 704 (10th Cir. 1959), the defendant was prosecuted for the transportation of sugar intended for use in the unlawful manufacture of distilled spirits. The result of this was a verdict of not guilty. Notwithstanding the verdict, forfeiture proceedings were undertaken against the vehicle and the sugar. This court, applying the Coffey case, held that the acquittal in the criminal case barred forfeiture action. In the ease at bar the trial court did not specify a jurisdictional avenue. It simply ruled that the plaintiff was entitled to recover based on the taking of his property without due process of law. There is, however, a statutory remedy which is peculiarly adaptable to the present case and that is the Tucker Act which authorizes the district court to entertain an action against the United States founded upon the Constitution. We do not regard as significant the fact that the trial court did not cite the Tucker Act since it acted in accordance with it when it ruled that it had jurisdiction to remedy a taking of property contrary to the Fifth Amendment. While the Tucker Act would not be the appropriate remedy in every case, the peculiar facts here presented giving rise as they do to a palpable taking of property without due process of law render it peculiarly appropriate. In summary, then, we hold that the officers here acted contrary to law in seizing the property in question; that the Director acted contrary to law in disregarding the evidence and in acting without any tenable legal basis, since the property was innocent and was not being used illegally. Finally, we agree with the trial court that the appellee’s constitutional rights were violated; we hold that the taking without due process gave rise to a remedy under the Tucker Act. It follows that the judgment should be and the same is hereby affirmed. . The trial court’s conclusions are set forth as follows: The acquittal of the Plaintiff on criminal charges involving possession of firearms in violation of 26 U.S.C., §§ 5861(d), 5871, is in effect an adjudication of the legality of the property and the Plaintiff’s right to possess the same. The Plaintiff is the actual and rightful owner of the items of personal property set forth in his Petition for Remission or Mitigation of Forfeiture and has complied with all the laws, both state and federal, pertaining thereto. The Defendant’s contention that the property was rightfully forfeited according to the provisions and procedures prescribed in 26 U.S.C. § 7325, is in error since it is paramount to the invoking of that statute that the items of property involved be in violation of Chapter 53, Title 26, United States Code. This Court has determined that the items of personal property as described in the Plaintiff’s Petition for Remission or Mitigation of Forfeiture were not held in violation of law, and as such the Order of the Internal Revenue Service to have the property destroyed was in violation of the Constitution, the laws of the United States, and as such deprives the Plaintiff of his property without due process of law. The imposition of forfeiture on the Plaintiff is penal in nature and causes an unconstitutional deprivation of personal property without just compensation. Consequently, the Plaintiff is entitled to a judgment in his favor for the fair market value of the items of personal property as described in his Petition for Remission or Mitigation of Forfeiture that were seized and ordered destroyed by the Internal Revenue Service. . Early cases of this court, e. g. United States v. Kemp, 186 F.2d 808 (10th Cir. 1951), United States v. One 1941 Plymouth Tudor Sedan, 153 F.2d 19 (10th Cir. 1946), which state that the Secretary has uncontrollable discretion are wholly inconsistent with Coin & Currency. . Cf. Notes 3 A.L.R.2d 738; 27 A.L.R.2d 738. . The Court recognized the broad scope of the forfeiture proceedings, but that it is nevertheless subject to limitations of the Constitution. The Court stated: An express statutory provision permits the innocent owner to prove to the Secretary of the Treasury that the “forfeiture was incurred without willful negligence or without any intention on the part of the petitioner . . . to violate the law .... 19 U.S.C. § 1618. Upon this showing, the Secretary is authorized to return the seized property “upon such terms and conditions as he deems reasonable and just.” It is not to be presumed that the Secretary will not conscientiously fulfill this trust, and the coiirts have intervened when the innocent petitioner’s protests have gone unheeded. When the forfeiture statutes are viewed in their entirety, it is manifest that they are intended to impose a penalty only upon those who are significantly involved in a criminal enterprise. 401 U.S. at 721-722, 91 S.Ct. at 1044 (emphasis added) ■ (citations & footnote omitted). . The opinion of Judge Breitenstein declared : On the ground that the acquittal in the criminal case barred recovery in this case, the trial court directed a verdict in favor of the defendant. We are unable to distinguish this case from Coffey v. United States, 116 U.S. 436, 6 S.Ct. 437, 29 L.Ed. 684, wherein it was held that the acquittal of Coffey on various liquor tax charges barred forfeiture proceedings. iji SH # # Any departure from Coffey and its “uncritical language” must come from the Supreme Court. We are bound by the rule therein announced. 272 F.2d 70-4-705. . It provides that the district court has original jurisdiction, concurrent with the Court of Claims, of [a]ny . . . 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 any executive department, or upon any express or implied contract with the United States, or for liquidated damages in cases not sounding in tort. 28 U.S.C. § 1346(a)(2). . This remedy has been applied to forfeiture proceedings by federal courts on previous occasions. United States v. One 1961 Red Chevrolet Impala Sedan, 457 F.2d 1353 (5th Cir. 1972); Jaekel v. United States, 304 F.Supp. 993 (S.D. N.Y.1969). In JaeTcel the plaintiff’s vehicle was seized as a result of conduct of her daughter. Subsequently, it was sold and the proceeds were turned over to the bank to satisfy the mortgage. An action was brought by the plaintiff alleging that the forfeiture was void in that it deprived her of her property without due process of law. The United States District Court for the Southern District of New York (Judge Bonsai) held that the Tucker Act was a proper remedy. In United States v. One 1961 Red Chevrolet Impala Sedan, the Fifth Circuit rejected the government’s contention that the plaintiff had not followed the proper remedy and ruled that the owner of the property invalidly forfeited had a remedy under the Tucker Act. The court did not, however, give effect to the remedy, but due to the fact that the owner had sought to get relief under Rule 60(b) in the forfeiture proceedings, affirmed the action without prejudice to the owner to institute a new suit under the Tucker Act. Question: What type of court made the original decision? A. Federal district court (single judge) B. 3 judge district court C. State court D. Bankruptcy court, referee in bankruptcy, special master E. Federal magistrate F. Federal administrative agency G. Special DC court H. Other I. Not ascertained Answer:
songer_r_bus	1	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. In re BRASEA, INC., Petitioning for Exoneration from or limitation of liability. Petition of Roy Lewis C. WILLIAMS. No. 78-1516 Summary Calendar. United States Court of Appeals, Fifth Circuit. Nov. 8, 1978. Olney G. Wallis, Craig A. Washington, Houston, Tex., for petitioner. Jack G. Carinhas, Jr., P. T. Moore, Jr., Brownsville, Tex., for Brasea, Inc. Before THORNBERRY, GEE and FAY, Circuit Judges. Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I. PER CURIAM: We are once again visited with an appeal concerning the rights and liabilities of the parties to this unfortunate mishap. The claimant Williams was the master of the shrimp trawler Ciapesc I on December 10, 1969. Ho was seriously injured at sea when a winch was activated while his hands were entangled in the line. Suit was instituted against various parties, and, after a bench trial, damages in the amount of $527,500 wore assessed against three defendants. The award was reduced by 40% due to contributory negligence attributed to the plaintiff Williams. All parties appealed and this Court determined that two parties were not liable as a matter of law, and that remand for an additional factual finding was necessary to resolve the negligence issue. On remand, the trial court made the requisite factual determination, but incorrectly reduced the judgment to the extent of the contributory negligence attributed to Williams. On appeal, we remanded for entry of a final judgment in favor of Williams against Brasea, Inc., the owner of the vessel and the employer of the crew, in the full amount of $527,500. The final judgment was entered forthwith and no appeal was filed. Brasea, Inc., then pursued this action for limitation of liability pursuant to 46 U.S.C. § 183. The district court granted limitation of liability on Brasea’s motion for summary judgment. This appeal followed. The memorandum order granting summary judgment reveals the conclusion of the district court that summary judgment was proper because “all the issues necessary to the determination of the limitation question in this cause were finally adjudicated in the Corpus Christi case.” App. 99. We cannot agree. In ascertaining whether a shipowner is entitled to limitation, the Court must first determine which act or acts of negligence or conditions of unseaworthiness caused the injury. The Court then determines whether the shipowner had knowledge or privity of these specific acts or conditions. Farrell Lines, Inc. v. Jones, 530 F.2d 7 (5th Cir. 1976). It is equally as well settled that in the limitation proceeding below the initial burden of proving negligence or unseaworthiness rested with the injured seaman. Id. at 10. The injured seaman sought to meet this burden in two distinct ways. First, the seaman requested that the court take judicial notice of the proceedings before Judge Cox and the findings of fact and conclusions of law resulting therefrom. App. 94. The negligence of crewman Terry was established in those proceedings. Second, the seaman sought to establish that the vessel was rendered unseaworthy by the alleged failure of Brasea, the owner, to provide a competent crew. See, Empire Seafoods, Inc. v. Anderson, 398 F.2d 204 (5th Cir. 1968). We conclude that the trial court improperly granted summary judgment without first considering whatever testimony or evidence the injured seaman may have on the issue of the competency of crewman Terry. The doctrine of collateral estoppel or issue preclusion does not operate as a roadblock under the facts of this case. The proceedings before Judge Cox only established that Terry was negligent and that equipment aboard the vessel did not render it unseaworthy. Of course, these issues may not be relitigated in the limitation proceeding. However, the issue of whether crewman Terry was incompetent at the time the vessel departed was not actually litigated in the prior proceedings. We therefore conclude that at this stage of the limitation proceedings there is a genuine issue of material fact which precludes the granting of summary judgment. Because this case must be remanded in any event, we deem it judicially efficient to direct the district court to likewise hear and consider such testimony and evidence which the injured seaman may wish to present on the issue of knowledge and privity. The court must consider this issue as to the negligence of Terry, and, additionally, will necessarily be required to consider this issue as to the failure of the owner to provide a competent crew in the event that Terry is found to have been incompetent at the time the vessel departed. We express no opinion as to the merits of the contentions of the injured seaman but note that the prior finding that Terry was negligent on the occasion in question does not establish as a matter of law that he was an incompetent seaman. This is because a competent seaman can on occasion engage in negligent conduct. REVERSED AND REMANDED. . We held that under the facts of this case the defendants Bender Welding & Machine Co., Inc., and Construction Machinery Company could not be found liable under a products liability theory for the supply of equipment alleged to be defective. We also affirmed the ruling of the district court that these two defendants were not negligent. Williams v. Brasea, Inc., 497 F.2d 67 (5th Cir. 1974), opinion amended, 513 F.2d 301 (5th Cir. 1975), cert. denied, 423 U.S. 906, 96 S.Ct. 207, 46 L.Ed.2d 136 (1975). . We instructed the trial court to determine whether crewman Terry acted pursuant to instructions from Williams in starting the winch, and directed that if this question was answered in the negative, the negligence of Terry would constitute the sole proximate cause of the plaintiffs injuries. 497 F.2d at 74. . Williams v. Brasea, Inc., 549 F.2d 977 (5th Cir. 1977). . The liability and damages issues were heard by the Honorable Owen Cox, Corpus Christi Division, whereas the limitation proceeding was held before the Honorable Reynaldo Garza, Brownsville Division. . The court further concluded that because “the sole proximate cause of Williams’ injuries were the negligent acts of crewman Terry in operating the winch, it then follows that there is no basis upon which to charge petitioner Brasea, Inc., with any privity or knowledge with regard to Williams’ accident or injuries.” App. 99-100. . See, Kaspar Wire Works, Inc. v. Leco Engineering and Machine, Inc., 575 F.2d 530 (5th Cir. 1978) for a thorough discussion of res judicata or “claim preclusion”, and collateral estoppel or “issue preclusion.” . The burden of proof on the knowledge or privity issue, however, rests with the petitioner in limitation, Brasea, Inc. Farrell Lines, Inc. v. Jones, 530 F.2d 7, 10 (5th Cir. 1976). Question: What is the total number of respondents in the case that fall into the category "private business and its executives"? Answer with a number. Answer:
songer_counsel2	D	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party In re ALTON R. CO. GIBBONS v. GARDNER. Nos. 9251, 9252. Circuit Court of Appeals, Seventh Circuit. Jan. 24, 1947. Thomas Dodd Healy, of Chicago, Ill. (Louis Boehm, of New York City, of counsel), for appellants. Anan Raymond, Tappan Gregory, Robert L. Hunter, and Carl A. Waldron, all of Chicago, Ill., Fred N. Oliver, Willard P. Scott, and Delano Andrews, all of New York City, and Kenneth F. Burgess, Douglas F. Smith, George Ragland, Jr., and Luther M. Walter, all of Chicago, Ill. (Oliver & Donnally, of New York City, and Sidley, Austin, Burgess & Harper, of Chicago, Ill., of counsel), for appellees. Before MAJOR and KERNER, Circuit Judges, and LINDLEY, District Judge. MAJOR, Circuit Judge. This appeal involves five orders of the District Court entered in the Alton Railroad Company reorganization proceedings under. Sec. 77 of the Bankruptcy Act, Title 11 U.S.C.A. § 205 et seq. The orders were entered October 21, November 13,. November 15 (only a portion of this order is appealed from), November 22 and November 27, 1946. Appellants are a committee asserted to represent a substantial majority of all security holders participating in the Plan of Reorganization, who’ by permission, of the court intervened in the proceedings April 1, 1943. The Plan of Reorganization, after certification by the Interstate Commerce Commission and approval by the court, was submitted to and accepted by the requisite security holders and confirmed by the court on October 21, 1946. The essential purpose to be accomplished by the Plan is a sale of the debtor’s property to the Gulf, Mobile and Ohio Railroad Company (sometimes referred to as G. M. & O.), with that company issuing securities in exchange for distribution to the debtor’s bondholders. Other railroads were included in the reorganization setup, namely, the Kansas City, St. Louis and Chicago Railroad Company, the Joliet and Chicago Railroad Company, and the Louisiana and Missouri River Railroad Company. All the orders appealed from were entered subsequent to the confirmation of the Plan by the court and have to do with its consummation. It appears unnecessary, therefore, to describe the provisions of the Plan other than those directly relevant to and concerned with such orders. While the contested issues are stated by the respective parties in numerous ways, we think the overall issue, succinctly stated, is whether the court exceeded its authority in entering the orders complained of. The provisions of the Plan so far as material to the instant controversy may appropriately be noted at this point. Under the heading of “Reorganization Managers,” it provides: . “There shall be - three reorganization managers, one of whom shall be designated by the Stephen B. Gibbons protective committee for holders of refunding-mortgage 3-percent bonds due October 1, 1949, of The Chicago and Alton Railroad Company, one by the Mutual Savings Bank Group and The Equitable Life Assurance Society of the United States, jointly, and one by the Thorvald F. Hammer independent committee for holders of 6-percent guaranteed preferred stock of the Kansas City, St. Louis and Chicago Railroad Company, all subject to the approval of the court; provided, however, that if the court shall find that at the time of designation either of the committees named has ceased to hold or to represent a substantial interest in' the property, the court may in its discretion designate in lieu of such committee. Should any of the parties named fail to make such designation within such time after confirmation of the plan and notice as the court shall consider reasonable, the court shall appoint the reorganization manager whom such party was entitled to designate. If there be any vacancy, however, created, after the appointments are made, the successor reorganization manager shall be designated by the party who designated the reorganization manager whose position has become vacant, subject to the approval of the court. In case of failure of any party to designate any such successor within such time as the court shall consider reasonable, such successor shall be designated by the court.” At this point, we note that there is no finding by the court or any contention that those authorized by this provision to designate managers had “ceased to hold or to represent a substantial interest in the property,” or that they failed to make such designation within such time “as the court shall consider reasonable,” or that they failed in case of vacancy to designate any such successor “within such time as the court shall consider reasonable.” The Plan provides: “Subject to limitations of law, including the limitations of subsection 77(c) (12) of the Bankruptcy Act, the reorganization managers shall have full discretionary power (a) to take all such action and to enter into such arrangements, financial and otherwise, as they may deem necessary or advisable in order to consummate and carry into execution the plan; (b) to fix the compensation of trustees, depositaries, counsel, and others whose services they may employ in the execution of their powers, which, together with all reasonable expenses, including counsel fees, shall be paid by the Gulf, Mobile and Ohio Railroad Company; * * * (d) to provide the method by which creditors and other interested parties may participate in the plan, including the distribution of new securities of the reorganized Kansas City, St. Louis and Chicago Railroad Company and of the Gulf, Mobile and Ohio Railroad Company; * * * (f) to make subject to the approval of this court minor adjustments in details of the plan as they may deem advisable; and (g) to construe the plan.” The Plan further provides: “Any construction of the plan by the reorganization managers on advice of counsel shall, subject to the approval of the court, be conclusive. The reorganization managers shall, however, exercise only such powers as shall be necessary to carry out the plan in accordance with its provisions subject to the direction of the court * * . The reorganization managers * * may employ such agents, attorneys, and others as they may deem desirable to carry out the plan, and may delegate to others any powers or discretion conferred upon them, and no reorganization manager shall be liable for any action taken by him in good faith * * .” The Plan also provides “the carrying out of the plan shall be under the direction and supervision of the court,” and under a heading, “Construction of the plan,” provides : “The construction of the plan by the court, whether before or after submission of the plan to creditors and stockholders shall be final and conclusive. The court, whether before or after submission, may cure any defect, supply any omission, or reconcile any inconsistency, in such manner or to such extent as may be necessary or expedient in order to carry out the plan effectively.” Appellants in their brief enumerate at great length the “important functions, powers and discretions lodged in or to be exercised by the reorganization managers in carrying out and implementing the plan,” with which it is asserted appellants, on behalf of the security holders represented by them, are vitally concerned. On the other hand, appellees seek to minimize the importance of the duties and obligations with which the managers were vested. We are of the view that we need be little concerned with whether the duties and responsibilities which the Plan imposed upon the managers are as important as claimed by appellants or as insignificant as asserted by appellees. Whatever be the merits of the controversy in this respect, there is no escape from the fact that the manner of designating the reorganization managers, as well as their duties, rights and responsibilities, is definitely fixed by the Plan, certified by the Commission, assented to by the creditors, and confirmed by the court. This brings us to a consideration of the orders complained of. On October 21 (the same date the Plan was confirmed by the court), the court entered the first order complained of, as follows: “On the Court’s own motion, It Is Ordered That: “(1) Henry A. Gardner, Trustee of the properties of the Debtor, be, and he hereby is, authorized and directed, to put into effect and carry out the Plan of Reorganization heretofore approved and confirmed by this Court, under the direction and supervision of this Court; and “(2) The trustee be, and he hereby is, authorized and directed to employ Messrs. Sidley, Austin, Burgess & Harper as counsel to so put into éffect and carry out the Plan * On or prior to October 18, 1946, the names of the designees of the three groups authorized by the Plan to designate reorganization managers were submitted to the court. Immediately after, the entry of the order of October 21, the court announced from the bench its refusal to approve such designees for the reason that they were residents of New York, although they were “unquestionably men of high standing and men of ability.” The court at the same time announced: “Now, I have directed the Trustee to take the steps necessary to put the plan into execution. It is my desire that that be done forthwith. * * * Accordingly I take it it will be unnecessary for the reorganization managers to employ counsel unless some extraordinary situation may arise which makes that employment necessary * * * » Thus at the very inception the court authorized and directed the debtor’s trustee to carry out the Plan, in direct contravention of the provisions of the Plan which expressly and specifically vested such authority and power in reorganization managers. Also at the same time the court directed the trustee to employ certain designated counsel, in violation of Sec. 205, sub. c (2), which authorizes the trustee to select his own counsel subject to confirmation by the court. The parties authorized, by the-Plan to designate reorganization managers evidently for the purpose of avoiding delay acquiesced in the court’s refusal to approve nonresident managers. It is not necessary, therefore, to consider the action of the court in this respect. On October 24, October 29 and November 4, 1946, the Thorvald F. Hammer committee, the Mutual Savings Bank group and the Equitable Life Assurance Society jointly, and appellants, in conformity with their authority contained in the Plan, designated respectively John E. Gavin, Roy D. Keehn and A. Bradley Eben, all of Chicago, to act as reorganization managers. With these newly designated managers awaiting its approval, the court on November 13, 1946 entered the second order complained of. This order was entered upon the petition of Gardner as trustee and provided: “(1) That the Trustee be, and he hereby is authorized and directed to exercise all powers of the reorganization managers under the Plan, pending their designation and approval. “(2) That the Clerk of this Court be, and he hereby is authorized and directed to forward a copy of the said petition to the Interstate Commerce Commission, Washington, D. C., together with a copy of this order, for the fixing of the maximum limits of, allowance for said expenses and services in connection with carrying out and putting into effect the Plan of Reorganization herein.” On November 15, 1946, twenty-two days after the designation of Gavin, seventeen days after the designation of Keehn and eleven days after the designation of Eben. the court entered an order reciting their designation as reorganization managers and approved their appointment, “provided that their exercise of authority under the Plan shall at all times be subject to the direction of this Court.” This order further recited the court’s action of October 21, 1946, authorizing and directing that the trustee employ “Messrs. Sidley, Austin, Burgess & Harper as counsel to put into effect and carry out the Plan of Reorganization,” and without a scintilla of proof, so far as the record discloses, that “substantial progress has been made in effectuating said Plan.” The reorganization managers were speqifically directed not to “employ other counsel or in any manner limit or impair the direction heretofore given to the Trustee and his counsel above named.” The portion of this order which limits the authority of the managers as contained in the Plan is involved in this appeal. At this point it is pertinent to note that no question is raised on this record as to the honesty, integrity or ability of Eben, Keehn or Gavin to serve as reorganization managers. In fact, they are all well and favorably known members of the Chicago Bar. Why the court so long delayed the approval of their appointment is not disclosed. More than that, the court by its orders of November 13 and November 15 renewed the authority of the trustee and the court-appointed counsel to carry the Plan into effect. Moreover, the authority thus conferred upon the trustee and counsel was not withdrawn or diminished in any respect. In fact, the order of Noyember 15 approving the appointment of Eben, Keehn and Gavin was little more than a meaningless gesture for the reason that by the same order the court stripped them of all substance of power and authority which was theirs according to the provisions of the Plan. Furthermore, the reorganization managers were specifically forbidden to employ counsel, notwithstanding the fact that they were specifically authorized so to do by the Plan. On November 22, 1946, the court entered the fourth order involved in this appeal. This order also recites that it is on the court’s own motion and provides that the court’s order of November 15, 1946 “approving the designations of certain persons as reorganization managers be, and it hereby is, vacated and suspended pending the further order of this court.” Like the other orders, it was also entered without hearing and without any reason assigned as to why the approval of the reorganization managers theretofore made was “vacated and suspended.” They had been designated strictly in accordance with the provisions of the Plan, and we think the court was without authority to summarily remove them, especially without cause and without an opportunity to be heard. Notwithstanding the fact that the approval of these reorganization managers had been “vacated and suspended,” the court in the same order directed that they and the trustee file reports on or before November 26, 1946, “showing what each of them had done, is doing, and contemplates doing, to carry out and put into effect the plan of reorganization.” In conformity with this direction, such reports were filed and a hearing was had on November 26, 1946. These reports were considered and the testimony of one witness connected with the legal firm designated by the court to represent the trustee was heard. Much is said concerning these reports and the testimony of this witness, most of which we think is beside the point and immaterial to the issues raised on this appeal. At the conclusion of the hearing, on November 27, 1946, the fifth order involved in this appeal was entered, which in a large measure supersedes the prior orders. In this order it is recited that on October 21, 1946, when the Plan of Reorganization was confirmed, “it appeared that there would be delay in the designation and approval of Reorganization Managers, and properly to progress the consummation of the plan, notwithstanding that delay, the Court directed the Trustee to employ counsel experienced in railroad reorganization matters, named by the Court, and proceed at once to initiate the steps necessary to the consmmation of the plan.” The order further recites in effect that when the reorganization managers were approved by the court, the trustee and his counsel had made such progress in the effectuation of the Plan that the reorganization managers were “directed by the Court not to employ other counsel, and to proceed with the exercise of their authority under the plan.” The order recites as the reason for the order suspending the order approving the reorganization managers that “delay was being encountered in taking certain steps essential to an expeditious reorganization, and that further delay was threatened.” The order also states: “The plan of reorganization does not in terms deal with the particular circumstances and the emergency situation which has developed herein except by the provision that the Court may cure any defect and supply any omission necessary to carry out the plan effectively.” Thus it appears that the court by this order attempted to justify its previous orders upon two grounds, (1) a fear that there would be delay in the consummation of the Plan, and (2) that at the time the managers were approved (November 15, 1946), the trustee and his counsel had made such progress in the effectuation of the Plan that it was unnecessary for the reorganization managers to employ counsel, as they were authorized to do under the Plan. We think the first ground is wholly without merit and that the second ground is beside the point. Obviously, there was no reason on October 21, 1946 (the same day the Plan was confirmed) for thinking that reorganization managers designated as provided by the Plan would delay its execution, yet on that very day the court provided a means of its own for the execution of the Plan, contrary to its plain provisions. It would also appear that there was no basis for charging the reorganization managers designated under the Plan with delay during the time required by the court to make up its mind as to whether it would approve their appointment. It would appear equally certain that they cannot properly be charged with delay even after their approval, in view of the fact that the court stripped them of their prerogatives as set forth in the Plan. Thus with their authority impaired to the point where it was doubtful if they had a right to perform any function, it is difficult to discern how they could have been reasonably expected to make any progress in the execution and carrying out of the Plan. That the court was anxious to see the Plan expeditiously put into effect is to be commended, but speed cannot be indulged in at the expense of the rights of parties as fixed by a Plan. Therefore, we think that i't is 'immaterial' to the issues raised on this appeal that the trustee and his counsel had made progress,'if such be the fact, in the carrying out of the Plan. It is no answer to the charge that their appointment was unauthorized and illegal. Neither do we think there was an emergency situation which justified the course pursued by the court. If, .however, there was any emergency existing on November 27, it was of the court’s own making. . Neither do we agree that there' was any defect or omission in the Plan which justified the court’s action. In fact, the provisions of the Plan, so far as they relate to the issues before us are written in such plain, clear and unambiguous language as to leave no room for doubt as to their meaning. The court in its order of November 27 directed “that John E. Gavin, William T. Faricy and Claude A. Roth be, and they hereby are appointed by the Court as Reorganization Managers under the plan of reorganization herein.” (Gavin was one of the original designees.) These Court’s designated managers were not appointed under the Plan; in fact, they were appointed in contravention of its specific terms. Assuming that the removal of Gavin, Keehn and Eben was proper (which assumption we think is not tenable), and that a vacancy thereby existed, the court again ignored the Plan, which clearly provided the manner in which successor-managers were to be designated. It provides: “If there be any vacancy, however, created, after the appointments are made, the successor reorganization manager shall be designated by the party who designated the reorganization manager whose position has become vacant, subject to the approval of the court.” The court at the hearing on November 27 further demonstrated its displeasure for the provision in the Plan pertaining to the appointment of reorganization managers by stating: “* * * the reorganization ‘ managers are- sort of vermiform appendices, without any useful function. But we have them, and we will get along with them if we can.” Again we think that if the court entertained that view as to the reorganization managers, it should have been given effect at the time it considered the merits of the Plan, as a prerequisite to its approval. It is true, of course, that the court had the authority and -the duty, both under the Act and by the provisions of the Plan, to supervise its execution. Such authority, how-, ever, did not confer upon the court the right to substitute a means of execution of its own contrary to 'and- in derogation of the provisions of the Plan. The duties and responsibilities of the reorganization managers in the execution and carrying into effect its provisions were as definite and certain as those of the court in its supervisory capacity. And the fact that the court might have thought that its means was better or more advantageous to the interested parties than that provided by the Plan can furnish no excuse for depriving the reorganization managers of their duties and responsibilities. To think otherwise is to work an injustice upon the creditors whose required assent to the Plan was procured on its stated terms and conditions, including those for its execution. In this connection, it is pertinent to observe that the means for the execution of a Plan of Reorganization is a positive requirement of the Act. Sec. 77, sub. b (5). We desire to make it plain that nothing said in this opinion is intended to reflect upon the court’s appointed counsel for the trustee, Messrs. Sidley, Austin, Burgess and Harper. The court evidently had great confidence in their ability to promptly and expeditiously carry the Plan into effect. So have we. Again, however, this is no answer to the contention that the orders complained of were unauthorized. It may be well at this point to call attention to a few of the cases for the purpose of showing the limited authority which is given the court under Sec. 77, and particularly after a plan has been approved. In Palmer et al. v. Commonwealth of Massachusetts, 308 U.S. 79, 87, 60 S.Ct. 34, 38, 84 L.Ed. 93, the court stated: “But the whole scheme of § 77 leaves no doubt that Congress did not mean to grant to the district courts the same scope as to bankrupt roads that they may have in dealing with other bankrupt estates.” In Ecker et al. v. Western Pacific Railroad Corporation, 318 U.S. 448, 468, 63 S.Ct. 692, 705, 87 L.Ed. 892, the court stated: “When examined to learn the purpose •of its enactment, section 77 manifests the intention of Congress to place reorganization under the leadership of the Commission, subject to a degree of participation bv the court.” In Continental Illinois Nat. Bank & Trust Co. v. Chicago, Rock Island & Pacific Ry. Co., 294 U.S. 648, 672, 55 S.Ct. 595, 604, 79 L.Ed. 1110, the court in referring to Sec. 77 stated: “As outlined by that section, a plan of reorganization, when confirmed, cannot be distinguished in principle from the composition with creditors authorized by the act of 1867, as amended by the act of 1874.” While we find no case exactly in point, numerous courts have construed the court’s authority in connection with the execution of a plan under Sec. 77 (B). This court, for instance, in In re Corona Radio & Television Corporation, 7 Cir., 102 F.2d 959, 963, held that the court was without authority to direct the execution of a plan in a manner inconsistent with its terms. To the same effect is In re Pilsener Brewing Co., 9 Cir., 79 F.2d 63, 68, and In re Diversey Building Corporation, 7 Cir., 141 F.2d 65, 68. It has also been held that a plan of reorganization is, when certified, approved, accepted and confirmed, in effect a binding contract between a debtor, the security holders and all other parties concerned. Downtown Inv. Ass’n v. Boston Metropolitan Buildings, Inc., 1 Cir., 81 F.2d 314; American United Life Ins. Co. v. Haines City, Fla., 5 Cir., 117 F.2d 574. Counsel for appellees in their brief and argument in this court go even further than the court in attempting to justify the orders complained of. For instance, it is argued: “Particularly fresh in the Judge’s mind was the recent hearing on fees in connection with the approval of the Plan.” In this connection, it is pointed out that appellants filed with the Interstate Commerce Commission excessive claims for compensation and reimbursement of expenses. Assuming that such is the case, we think it is irrelevant to the orders under attack. If the purpose of such contention is to impugn appellants’ motive or integrity, it is sufficient answer to state that the application for fees referred to and the action of the Commission thereon took place long before October 21, 1946, when the Plan was approved by the court. Such activities certainly were as “fresh in the Judge’s mind” at that time as when he later entered the orders complained of. If there was anything in appellants’ previous conduct which indicated that it was undesirable that they be given the right under the Plan to designate the reorganization managers, it was a. matter for the court’s concern before the Plan was approved rather than subsequently. Furthermore, appellants appear to have played an important part in the formulation of the Reorganization Plan. The Commission in its report of April 25, 1946 stated : “Counsel and the committee and its advisers, on and after April 17, 1945, concluded the negotiations which led to agreement with the Gulf, Mobile & Ohio on the terms of the plan, and took the lead; in proceedings which thereafter culminated in approval of the plan by the. Commission and the. court * * Appellees further argue that the court properly exercised its discretion because appellants attempted to block the reorganization and circumvent Sec. 77, sub. c (12). At this point it is pertinent to recall that the court in its order of November 13, 1946 directed its clerk to forward to the Interstate Commerce Commission the petition of the trustee to prescribe maximum limits of 'expenses pursuant to Sec. 77, sub. c(12). The clerk complied with the direction of the court in this respect. Thereupon, New York counsel for the appellant Committee, under date of November 15, 1946, directed a letter to the Commission opposing the petition “on the ground that the Trustee has no power to put into effect and carry out the Plan.of Reorganization.” The letter also called attention to the provision of the Plan by which such power was lodged in the reorganization managers. On November 21, 1946, appellants by the same New York counsel filed with the Commission an answer to the trustee’s petition in which was set forth the provisions of the Plan as well as the orders complained of designed to show that the latter were entered without authority. It was asserted in such answer that the execution of the Plan by the trustee would be in violation of the Plan and would cast a serious doubt and cloud upon the title of the G. M. & O. and on other interested parties. 'It was also asserted that Sec. 77, sub. c(12), was without application because the Plan of Reorganization provided that the compensation and expenses of those employed in carrying out the Plan should be paid by the G. M. & O. Appellees assert that by this action the appellant Committee “immediately undertook to block the required proceeding before the Interstate Commerce Commission,” and that “It will be seen that while pretending to name a Reorganization Manager to participate in the consummation of the Plan, appellant was actually moving to defeat the consummation of the Plan under and pursuant to the vital limitations imposed by subsection c(12) * * Thus it will be observed that the attack which appellants sought to make before the Commission was substantially the same as that made here, that is, that the court was acting without authority and in contravention of the terms of the Plan. We are of the view that appellants were not only within their rights in attacking the orders of the court before the Commission but that they would have been derelict in their duty if they had failed to do so. We have heretofore quoted the provision of the Plan conferring broad and exclusive powers upon the reorganization managers in the execution of the Plan. We repeat this provision, so far as material to the instant discussion. It provides: “Subject to limitations of law, including the limitations of subsection 77 (c) (12) of the Bankruptcy Act, the reorganization managers shall have full discretionary power * * * to fix the compensation of trustees, depositaries, counsel, and others whose services they may employ in the execution of their powers, which, together with all reasonable expenses, including counsel fees, shall be paid by the Gulf, Mobile and Ohio Railroad Company * * Sec. 77, sub. c (12), provides, so far as here material: “Within such maximum limits as are fixed by the Commission, the judge * * * may make an allowance, to be paid out of the debtor’s estate, for the actual_ and reasonable expenses * * * incurred in connection with the proceedings ana plan and reasonable compensation for services in connection therewith by trustees under indentures, depositaries and such assistants as the Commission with the approval of the judge may especially employ.” It is true, as appellees assert, that the provision of the Plan imposing upon the railroad the obligation of paying the expenses incurred in the execution of the Plan is “subject to limitations of law, including the limitations of Sec. 77 (c) (12).” Obviously, this limitation in the Plan is of no consequence unless the statutory provision is controlling. We think it is not. The latter expressly limits the allowances to those payable “out of the debtor’s estate.” This fact is emphasized in Reconstruction Finance Corporation v. Bankers Trust Co., 316 U.S. 163, 166, 63 S.Ct. 515, 87 L.Ed. 680. In the instant case, the fees and expenses incurred are not to be paid out of the debtor’s estate. The Plan specifically provides that the compensation and expenses of those authorized to execute the Plan “shall be paid by the Gulf, Mobile & Ohio Railroad Company.” We must assume that there is nothing wrong with a plan containing such a provision; otherwise the Commission would not have certified and the court would not have approved it. We think the creditors and interested parties whose assents were necessary to the validity of the Plan are entitled to have this provision as well as others respected and put into effect. We might go further and state that even though it be assumed that appellants' action before the Commission, taken in response to the trustee’s petition, was ill-advised, still there would be no basis for properly charging them with blocking the execution of the Plan. It cannot be said that their action was frivolous or not taken in good faith. Certainly the very least that can he said is that they presented a meritorious legal question, which they were entitled to do before the Commission as they have before this court. Furthermore, as already pointed out, the court entered upon a course contrary to the provisions of the Plan prior to appellants’ action now asserted to have blocked consummation of the Plan. In conclusion, we regret to relate that the court below during the hearing on November 27, 1946, in discussing the provision of the Plan imposing upon the G. M. & O. the obligation of paying the compensation and expenses incurred in its execution, made inquiry as to whether the railroad was represented in court. Upon being informed that its general counsel was present, the court threatened it with contempt “if any engagement is made or if any payment is made by way of attorneys fees or expenses of attorneys or otherwise in and about this reorganization other than within maximum limits fixed by the Interstate Commerce Commission and approved within those limits by this Court.” In our opinion, this threat of contempt directed at the railroad was not only improper but without justification. After all, the G. M. & O. was merely taking over the assets of the debtor corporation; in effect it was the purchaser of those assets. It was solvent and we assume possessed of officials capable of attending to its business. It is doubtful if the court had any jurisdiction over its funds and certainly no authority over the railroad other than to supervise its part in the execution of the Plan. As already shown, the railroad was obligated to pay the expenses of carrying the Plan into effect. Even though there had been a serious legal question as to its obligation in this respect, which we think there was not, such a question could have been more appropriately decided in the traditional judicial manner than by threatened contempt. The orders appealed from are reversed, with the direction that they be vacated and set aside and that the Plan of Reorganization approved by the court be consummated according to its terms and provisions. Question: What is the nature of the counsel for the respondent? A. none (pro se) B. court appointed C. legal aid or public defender D. private E. government - US F. government - state or local G. interest group, union, professional group H. other or not ascertained Answer:
sc_issuearea	C	What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. BECKLEY NEWSPAPERS CORP. v. HANKS. No. 467. Decided November 6, 1967. Thurman Arnold and Jack A. Mann for petitioner. Harry O. Camper, Jr., for respondent. Per Curiam. The petition for certiorari is granted. Respondent Hanks is the elected Clerk of the Criminal and Circuit Courts of Raleigh County, West Virginia. He brought this libel action in the West Virginia Circuit Court, Wyoming County, alleging that during his reelection campaign he was libeled by three editorials, highly critical of his official conduct, which appeared in petitioner’s morning newspaper. The jury returned a verdict for respondent and awarded him $5,000 damages. The State Supreme Court of Appeals denied petitioner's application for appellate review. Although this action was tried subsequent to the decisions of this Court in New York Times Co. v. Sullivan, 376 U. S. 254 (1964); Garrison v. Louisiana, 379 U. S. 64 (1964); Henry v. Collins, 380 U. S. 356 (1965); and Rosenblatt v. Baer, 383 U. S. 75 (1966), and despite the fact that it was recognized at trial that the principles of New York Times were applicable, the case went to the jury on instructions which were clearly impermissible. The jury was instructed in part that it could find for the respondent if it were shown that petitioner had published the editorials “with bad or corrupt motive,” or “from personal spite, ill will or a desire to injure plaintiff.” Because petitioner failed to object to this erroneous interpretation of New York Times at trial, and in fact offered instructions which were themselves inadequate, the issue of these instructions is not before us. However, since it is clear that the jury verdict was rendered upon instructions which misstated the law and since petitioner has properly challenged the sufficiency of the evidence, we have undertaken an independent examination of the record as a whole “so as to assure ourselves that the judgment does not constitute a forbidden intrusion on the field of free expression.” New York Times Co. v. Sullivan, supra, at 285. See Curtis Publishing Co. v. Butts, 388 U. S. 130, 156-159 (1967) (opinion of Mb. Justice Harlan); id., at 168-170 (opinion of The Chief Justice). In New York Times we held that the Constitution forbids recovery of damages in a civil libel action by a public official, such as respondent, “for a defamatory falsehood relating to his offioial conduct unless he proves that the statement was made with 'actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” 376 TJ. S., at 279-280. Our examination of the whole record satisfies us that “the proof presented to show actual malice lacks the convincing clarity which the constitutional standard demands . . . .” 376 U. S., at 285-286. We put aside the question whether the proofs show that the allegedly libelous statements were false. If false, respondent did not and does not contend that petitioner published the statements with knowledge of their falsity. His contention was and is that the proofs were sufficient for the jury to find that petitioner published the statements with reckless disregard of whether they were false or not. However, virtually the only evidence we find bearing on that question relates to one of the editorials critical of the opposition of respondent and another public official, Mrs. Elinor Hurt, president of the county board of health, to fluoridation of the local water supply. That editorial, captioned “The Fluoridation Situation Remains Unchanged,” was directed primarily at Mrs. Hurt’s opposition but also included the following: “Here, again, [Mrs. Hurt] seems to want to follow in the footsteps of Hanks. For it was Hanks who ordered over the telephone once that he did not want his name to appear in the Beckley Post-Herald again. He backed up this order with an inexplicit threat — one merely intended to frighten those who are easily intimidated. “The only conclusion to which we can come is that either Hanks and Mrs. Hurt have been in league toward the fanatic end, believing all the wild-eyed ravings against fluoridation despite decades of experience to disprove them, or that perhaps his blustering threats were able to intimidate the lady.” (Emphasis added.) Respondent’s argument is that since both he and Mrs. Hurt testified and denied any threats or intimidation, the following testimony of petitioner’s president and general manager on cross-examination provides “convincing proof” of the absence of prior investigation which entitled the jury to find that the “offending charges” were published with reckless disregard of whether they were false or true: “Q. But you can’t tell this jury that any specific investigation was made before this man was attacked in any of these articles, can you? “A. We watch the activities of the public servant. You don’t have to make an investigation. His whole life is out in front of everybody. “Q. Those editorials were not written by anybody who wanted to find out whether or not he threatened Mrs. Hurt, were they? “A. There was cause on their part to feel there was that possibility. “Q. That possibility? “A. That’s right. ‘Perhaps,’ they said. “A. It was our opinion that that was as near the facts and truth as we could get.” (Tr. 121-122.) We reject respondent’s contention. Neither this passage nor anything else in the record reveals “the high degree of awareness of . . . probable falsity demanded by New York Times . . . .” Garrison v. Louisiana, 379 U. S. 64, 74; it cannot be said on this record that any failure of petitioner to make a prior investigation constituted proof sufficient to present a jury question whether the statements were published with reckless disregard of whether they were false or not. Cf. New York Times Co. v. Sullivan, supra, at 287-288; Time, Inc. v. Hill, 385 U. S. 374, 388-389 (1967). See also Curtis Publishing Co. v. Butts, supra, at 153-154 (opinion of Mr. Justice Harlan). The judgment is reversed, and the case remanded to the Circuit Court of West Virginia, Wyoming County, for further proceedings not inconsistent with this opinion. It is so ordered. When asked whether she had ever brought suit against petitioner for these or other statements, Mrs. Hurt replied, “No, sir, I have big broad shoulders.” (Tr. 49.) Question: What is the issue area of the decision? A. Criminal Procedure B. Civil Rights C. First Amendment D. Due Process E. Privacy F. Attorneys G. Unions H. Economic Activity I. Judicial Power J. Federalism K. Interstate Relations L. Federal Taxation M. Miscellaneous N. Private Action Answer:
sc_adminaction_is	B	What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether administrative action occurred in the context of the case prior to the onset of litigation. The activity may involve an administrative official as well as that of an agency. To determine whether administration action occurred in the context of the case, consider the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations. VLANDIS v. KLINE et al. No. 72-493. Argued March 20, 1973 Decided June 11, 1973 Stewart, J., delivered the opinion of the Court, in which Brennan, Marshall, Blacicmun, and Powell, JJ., joined. Marshall, J., filed a concurring opinion, in which Brennan, J., joined, post, p. 454. White, J., filed an opinion concurring in the judgment, post, p. 456. Burger, C. J., filed a dissenting opinion, in which Rehnquist, J., joined, post, p. 459. Rehnquist, J., filed a dissenting opinion, in which Burger, C. J., and Douglas, J., joined, post, p. 463. John G. Hill, Jr., Assistant Attorney General of Connecticut, argued the cause for appellant. With him on the brief was Robert K. Killian, Attorney General. John A. Dziamba argued the cause for appellees. With him on the brief was Douglas M. Crockett Leonard J. Schwartz filed a brief for the American Civil Liberties Union of Ohio, Inc., as amicus curiae urging affirmance. Slade Gorton, Attorney General, James B. Wilson, Senior Assistant Attorney General, and Gerald L. Coe, Assistant Attorney General, filed a brief for the State of Washington as amicus curiae. Mr. Justice Stewart delivered the opinion of the Court. Like many other States, Connecticut requires nonresidents of the State who are enrolled in the state university system to pay tuition and other fees at higher rates than residents of the State who are so enrolled. Conn. Gen. Stat. Rev. § 10-329 (b) (Supp. 1969), as amended by Public Act No. 5, § 122 (June Sess. 1971). The constitutional validity of that requirement is not at issue in the case before us. What is at issue here is Connecticut’s statutory definition of residents and nonresidents for purposes of the above provision. Section 126 (a) (2) of Public Act No. 5, amending § 10-329 (b), provides that an unmarried student shall be classified as a nonresident, or “out of state,” student if his “legal address for any part of the one-year period immediately prior to his application for admission at a constituent unit of the state system of higher education was outside of Connecticut.” With respect to married students, § 126 (a)(3) of the Act provides that such a student, if living with his spouse, shall be classified as “out of state” if his “legal address at the time of his application for admission to- such a unit was outside of Connecticut.” These classifications are permanent and irrebuttable for the whole time that the student remains at the university, since § 126 (a) (5) of the Act commands that: “The status of a student, as established at the time of his application for admission at a constituent unit of the state system of higher education under the provisions of this section, shall be his status for the entire period of his attendance at such constituent unit.” The present case concerns the constitutional validity of this conclusive and unchangeable presumption of nonresident status from the fact that, at the time of application for admission, the student, if married, was then living outside of Connecticut, or, if single, had lived outside the State at some point during the preceding year. One appellee, Margaret Marsh Kline, is an undergraduate student at the University of Connecticut. In May 1971, while attending college in California, she became engaged to Peter Kline, a lifelong Connecticut resident. Because the Klines wished to reside in Connecticut after their marriage, Mrs. Kline applied to the University of Connecticut from California. In late May, she was accepted and informed by the University that she would be considered an in-state student. On June 26, 1971, the appellee and Peter Kline were married in California, and soon thereafter took up residence in Storrs, Connecticut, where they have established a permanent home. Mrs. Kline has a Connecticut driver’s license, her car is registered in Connecticut, and she is registered as a Connecticut voter. In July 1971, Public Act No. 5 went into effect. Accordingly, the appellant, Director of Admissions at the University of Connecticut, irreversibly classified Mrs. Kline as an out-of-state student, pursuant to § 126 (a) (3) of that Act. As a consequence, she was required to pay $150 tuition and a $200 nonresident fee for the first semester, whereas a student classified as a Connecticut resident paid no tuition; and upon registration for the second semester, she was required to pay $425 tuition plus another $200 nonresident fee, while a student classified as a Connecticut resident paid only $175 tuition. The other appellee, Patricia Catapano, is an unmarried graduate student at the same University. She applied for admission from Ohio in January 1971, and was accepted in February of that year. In August 1971, she moved her residence from Ohio to Connecticut and registered as a full-time student at the University. Like Mrs. Kline, she has a Connecticut driver’s license, her car is registered in Connecticut, and she is registered as a Connecticut voter. Pursuant to § 126 (a) (2) of the 1971 Act, the appellant classified her permanently as an out-of-state student. Consequently, she, too, was required to pay $150 tuition and a $200 nonresident fee for her first semester, and $425 tuition plus a $200 nonresident fee for her second semester. Appellees then brought suit in the District Court pursuant to the Civil Rights Act of 1871, 42 U. S. C. § 1983, contending that they were bona fide residents of Connecticut, and that § 126 of Public Act No. 5, under which they were classified as nonresidents for purposes of their tuition and fees, infringed their rights to due process of law and equal protection of the laws, guaranteed by the Fourteenth Amendment to the Constitution. After the convening of a three-judge District Court, that court unanimously held §§ 126 (a)(2), (a)(3), and (a)(5) unconstitutional, as violative of the Fourteenth Amendment, and enjoined the appellant from enforcing those sections. 346 F. Supp. 526 (1972). The court also found that before the commencement of the spring semester in 1972, each appellee was a bona fide resident of Connecticut; and it accordingly ordered that the appellant refund to each of them the amount of tuition and fees paid in excess of the amount paid by resident students for that semester. On December 4, 1972, we noted probable jurisdiction of this appeal. 409 U. S. 1036. The appellees do not challenge, nor did the District Court invalidate, the option of the State to classify students as resident and nonresident students, thereby obligating nonresident students to pay higher tuition and fees than do bona fide residents. The State’s right to make such a classification is unquestioned here. Rather, the appellees attack Connecticut’s irreversible and irre-buttable statutory presumption that because a student’s legal address was outside the State at the time of his application for admission or at some point during the preceding year, he remains a nonresident for as long as he is a student there. This conclusive presumption, they say, is invalid in that it allows the State to classify as “out-of-state students” those who are, in fact, bona fide residents of the State. The appellees claim that they have a constitutional right to controvert that presumption of nonresidence by presenting evidence that they are bona fide residents of Connecticut. The District Court agreed: “Assuming that it is permissible for the state to impose a heavier burden of tuition and fees on non-resident than on resident students, the state may not classify as 'out of state students' those who do not belong in that class.” 346 F. Supp., at 528. We affirm the judgment of the District Court. Statutes creating permanent irrebuttable presumptions have long been disfavored under the Due Process Clauses of the Fifth and Fourteenth Amendments. In Heiner v. Donnan, 285 U. S. 312 (1932), the Court was faced with a constitutional challenge to a federal statute that created a conclusive presumption that gifts made within two years prior to the donor's death were made in contemplation of death, thus requiring payment by his estate of a higher tax. In holding that this irrefutable assumption was so arbitrary and unreasonable as to deprive the taxpayer of his property without due process of law, the Court stated that it had “held more than once that a statute creating a presumption which operates to deny a fair opportunity to rebut it violates the due process clause of the Fourteenth Amendment.” Id., at 329. See, e. g., Schlesinger v. Wisconsin, 270 U. S. 230 (1926); Hoeper v. Tax Comm’n, 284 U. S. 206 (1931). See also Tot v. United States, 319 U. S. 463, 468-469 (1943); Leary v. United States, 395 U. S. 6, 29-53 (1969). Cf. Turner v. United States, 396 U. S. 398, 418-419 (1970). The more recent case of Bell v. Burson, 402 U. S. 535 (1971), involved a Georgia statute which provided that if an uninsured motorist was involved in an accident and could not post security for the amount of damages claimed, his driver’s license must be suspended without any hearing on the question of fault or responsibility. The Court held that since the State purported to be concerned with fault in suspending a driver’s license, it could not, consistent with procedural due process, conclusively presume fault from the fact that the uninsured motorist was involved in an accident, and could not, therefore, suspend his driver’s license without a hearing on that crucial factor. Likewise, in Stanley v. Illinois, 405 U. S. 645 (1972), the Court struck down, as violative of the Due Process Clause of the Fourteenth Amendment, Illinois’ irrebut-table statutory presumption that all unmarried fathers are unqualified to raise their children. Because of that presumption, the statute required the State, upon the death of the mother, to take custody of all such illegitimate children, without providing any hearing on the father’s parental fitness. It may be, the Court said, “that most unmarried fathers are unsuitable and neglectful parents. . . . But all unmarried fathers are not in this category; some are wholly suited to have custody of their children.” Id., at 654. Hence, the Court held that the State could not conclusively presume that any individual unmarried father was unfit to raise his children; rather, it was required by the Due Process Clause to provide a hearing on that issue. According to the Court, Illinois “insists on presuming rather than proving Stanley’s unfitness solely because it is more convenient to presume than to prove. Under the Due Process Clause that advantage is insufficient to justify refusing a father a hearing . . . .” Id., at 658. The same considerations obtain here. It may be that most applicants to Connecticut’s university system who apply from outside the State or within a year of living out of State have no real intention of becoming Connecticut residents and will never do so. But it is clear that not all of the applicants from out of State inevitably fall in this category. Indeed, in the present case, both appellees possess many of the indicia of Connecticut residency, such as year-round Connecticut homes, Connecticut drivers’ licenses, car registrations, voter registrations, etc.; and both were found by the District Court to have become bona fide residents of Connecticut before the 1972 spring semester. Yet, under the State’s statutory scheme, neither was permitted any opportunity to demonstrate the bona fides of her Connecticut residency for tuition purposes, and neither will ever have such an opportunity in the future so long as she remains a student. The State proffers three reasons to justify that permanent irrebuttable presumption. The first is that the State has a valid interest in equalizing the cost of public higher education between Connecticut residents and nonresidents, and that by freezing a student’s residential status as of the time he applies, the State ensures that its bona fide in-state students will receive their full subsidy. The State’s objective of cost equalization between bona fide residents and nonresidents may well be legitimate, but basing the bona fides of residency solely on where a student lived when he applied for admission to the University is using a criterion wholly unrelated to that objective. As is evident from the situation of the appellees, a student may be a bona fide resident of Connecticut even though he applied to the University from out of State. Thus, Connecticut’s conclusive presumption of nonresidence, instead of ensuring that only its bona fide residents receive their full subsidy, ensures that certain of its bona fide residents, such as the ap-pellees, do not receive their full subsidy, and can never do so while they remain students. Second, the State argues that even if a student who applied to the University from out of State may at some point become a bona fide resident of Connecticut, the State can nonetheless reasonably decide to favor with the lower rates only its established residents, whose past tax contributions to the State have been higher. According to the State, the fact that established residents or their parents have supported the State in the past justifies the conclusion that applicants from out of State — who are presumed not to be such established residents — may be denied the lower rates, even if they have become bona fide residents. Connecticut’s statutory scheme, however, makes no distinction on its face between established residents and new residents. Rather, through § 122, the State purports to distinguish, for tuition purposes, between residents and nonresidents by granting the lower rates to the former and denying them to the latter. In these circumstances, the State cannot now seek to justify its classification of certain bona fide residents as nonresidents, on the basis that their Connecticut residency is “new.” Moreover, § 126 would not always operate to effectuate the State’s asserted interest. For it is not at all clear that the conclusive presumption required by that section prevents only “new” residents, rather than “established” residents, from obtaining the lower tuition rates. For example, a student whose parents were lifelong residents of Connecticut, but who went to college at Harvard, established a legal address there, and applied to the University of Connecticut’s graduate school during his senior year, would be permanently classified as an “out of state student,” despite his family’s status as “established” residents of Connecticut. Similarly, the appellee Kline may herself be a “new” resident of Connecticut; but her husband is an established, lifelong resident, whose past tax contribution to the State, under the State’s theory, should entitle his family to the lower rates. Conversely, the State makes no attempt to ensure that those students to whom it does grant in-state status are “established” residents of Connecticut. Any married person, for instance, who moves to Connecticut before applying to the University would be considered a Connecticut resident, even if he has lived there only one day. Thus, even in terms of the State’s own asserted interest in favoring established residents over new residents, the provisions of § 126 are so arbitrary as to constitute a denial of due process of law. The third ground advanced to justify § 126 is that it provides a degree of administrative certainty. The State points to its interest in preventing out-of-state students from coming to Connecticut solely to obtain an education and then claiming Connecticut residence in order to secure the lower tuition and fees. The irrebutta-ble presumption, the State contends, makes it easier to separate out students who come to the State solely for its educational facilities from true Connecticut residents, by eliminating the need for an individual determination of the bona fides of a person who lived out of State at the time of his application. Such an individual determination, it is said, would not only be an expensive administrative burden, but would also be very difficult to make, since it is hard to evaluate when bona fide residency exists. Without the conclusive presumption, the State argues, it would be almost impossible to prevent out-of-state students from claiming a Connecticut residence merely to obtain the lower rates. In Stanley v. Illinois, supra, however, the Court stated that “the Constitution recognizes higher values than speed and efficiency.” 405 U. S., at 656. The State’s interest in administrative ease and certainty cannot, in and of itself, save the conclusive presumption from invalidity under the Due Process Clause where there are other reasonable and practicable means of establishing the pertinent facts on which the State’s objective is premised. In the situation before us, reasonable alternative means for determining bona fide residence are available. Indeed, one such method has already been adopted by Connecticut; after § 126 was invalidated by the District Court, the State established reasonable criteria for evaluating bona fide residence for purposes of tuition and fees at its university system. These criteria, while perhaps more burdensome to apply than an irre-buttable presumption, are certainly sufficient to prevent abuse of the lower, in-state rates by students who come to Connecticut solely to obtain an education. In sum, since Connecticut purports to be concerned with residency in allocating the rates for tuition and fees in its university system, it is forbidden by the Due Process Clause to deny an individual the resident rates on the basis of a permanent and irrebuttable presumption of nonresidence, when that presumption is not necessarily or universally true in fact, and when the State has reasonable alternative means of making the crucial determination. Rather, standards of due process require that the State allow such an individual the opportunity to present evidence showing that he is a bona fide resident entitled to the in-state rates. Since § 126 precluded the appellees from ever rebutting the presumption that they were nonresidents of Connecticut, that statute operated to deprive them of a significant amount of their money without due process of law. We are aware, of course, of the special problems involved in determining the bona fide residence of college students who come from out of State to attend that State’s public university. Our holding today should in no wise be taken to mean that Connecticut must classify the students in its university system as residents, for purposes of tuition and fees, just because they go to school there. Nor should our decision be construed to deny a State the right to impose on a student, as one element in demonstrating bona fide residence, a reasonable durational residency requirement, which can be met while in student status. We fully recognize that a State has a legitimate interest in protecting and preserving the quality of its colleges and universities and the right of its own bona fide residents to attend such institutions on a preferential tuition basis. We hold only that a permanent irrebuttable presumption of nonresidence — the means adopted by Connecticut to preserve that legitimate interest — is violative of the Due Process Clause, because it provides no opportunity for students who applied from out of State to demonstrate that they have become bona fide Connecticut residents. The State can establish such reasonable criteria for in-state status as to make virtually certain that students who are not, in fact, bona fide residents of the State, but who have come there solely for educational purposes, cannot take advantage of the in-state rates. Indeed, as stated above, such criteria exist; and since § 126 was invalidated, Connecticut, through an official opinion of its Attorney General, has adopted one such reasonable standard for determining the residential status of a student. The Attorney General’s opinion states: “In reviewing a claim of in-state status, the issue becomes essentially one of domicile. In general, the domicile of an individual is his true, fixed and permanent home and place of habitation. It is the place to which, whenever he is absent, he has the intention of returning. This general statement, however, is difficult of application. Each individual case must be decided on its own particular facts. In reviewing a claim, relevant criteria include year-round residence, voter registration, place of filing tax returns, property ownership, driver’s license, car registration, marital status, vacation employment, etc.” Because we hold that the permanent irrebuttable presumption of nonresidence created by subsections (a)(2), (a) (3), and (a) (5) of Conn. Gen. Stat. Rev. § 10-329 (b) (Supp. 1969), as amended by Public Act No. 5, § 126 (June Sess. 1971), violates the Due Process Clause of the Fourteenth Amendment, the judgment of the District Court is affirmed. It is so ordered. Section 122 of that Act provides that “the board of trustees of The University of Connecticut shall fix fees for tuition of not less than three hundred fifty dollars for residents of this State and not less than eight hundred fifty dollars for nonresidents . . . .” Pursuant to this statute, the University promulgated regulations fixing the tuition per semester as follows: Fall semester Spring semester 1971-72 1972, and thereafter None $175.00 In-state student $150.00 $425.00 Out-of-state student In addition, out-of-state students must pay a $200 nonresident fee per semester. See n. 1, supra. While the case was pending in the District Court, the Connecticut Legislature passed a bill relating to tuition payments by nonresidents, House Bill No. 5302, which would have repealed the particular portions of the statute that were under constitutional attack. On May 18, 1972, however, the Governor of Connecticut vetoed that bill. Moreover, in Carrington v. Rash, 380 U. S. 89 (1965), the Court held that a permanent irrebuttable presumption of nonresidence violated the Equal Protection Clause of the Fourteenth Amendment. That case involved a provision of the Texas Constitution which prohibited any member of the Armed Forces who entered the service as a resident of another State and then moved his home to Texas during the course of his military duty, from ever satisfying the residence requirement for voting in Texas elections, so long as he remained a member of the Armed Forces. The effect of that provision was to create a conclusive presumption that all servicemen who moved to Texas during their military service, even if they became bona fide residents of Texas, nonetheless remained nonresidents for purposes of voting. The Court held that “[b]y forbidding a soldier ever to controvert the presumption of non-residence, the Texas Constit ution imposes an invidious discrimination in violation of the Fourteenth Amendment.” Id., at 96. See als o Dunn v. Blumstein, 405 U. S. 330, 349-352 (1972); Shapiro v. Thompson, 394 U. S. 618 (1969). See n. 1, supra. But even if we accepted the State’s argument that its statutory scheme operates to apportion tuition rates on the basis of old and new residency, that justification itself would give rise to grave problems under the Equal Protection Clause of the Fourteenth Amendment. For in Shapiro v. Thompson, supra, the Court rejected the contention that a challenged classification could be sustained as an attempt to distinguish between old and new residents on the basis of the contribution they have made to the community through past payment of taxes. That reasoning, the Court stated, “would logically permit the State to bar new residents from schools, parks, and libraries or deprive them of police and fire protection. Indeed it would permit the State to apportion all benefits and services according to the past tax contributions of its citizens. The Equal Protection Clause prohibits such an apportionment of state services.” 394 U. S., at 632-633. Cf. Carrington v. Rash, 380 U. S., at 96; Dunn v. Blumstein, 405 U. S., at 354. See infra, at 454. Cf. Carrington v. Rash, supra, at 95-96; Dunn v. Blumstein, supra, at 349-352; Shapiro v. Thompson, supra, at 636. In Starns v. Malkerson, 326 F. Supp. 234 (Minn. 1970), the District Court upheld a regulation of the University of Minnesota providing that no student could qualify as a resident for tuition purposes unless he had been a bona fide domiciliary of the State for at least a year immediately prior thereto. This Court affirmed summarily. 401 U. S. 985 (1971). Minnesota’s one-year durational residency requirement, however, differed in an important respect from the permanent irrebuttable presumption at issue in the present case. Under the regulation involved in Stams, a student who applied to the University from out of State could rebut the presumption of nonresidency, after having lived in the State for one year, by presenting sufficient other evidence to show bona fide domicile within Minnesota. In other words, residence within the State for one year, whether or not in student status, was merely one element which Minnesota required to demonstrate bona fide domicile. By contrast, the Connecticut statute prevents a student who applied to the University from out of State, or within a year of living out of State, from ever rebutting the presumption of nonresidence during the entire time that he remains a student, no matter how long he has been a bona fide resident of the State for other purposes. Under Minnesota’s durational residency requirement, a student could qualify for in-state rates by living within the State for a year in student status; whereas under Connecticut’s scheme, a person who applied from out of State can never so qualify so long as he remains in student status. See also Kirk v. Board of Regents of Univ. of California, 273 Cal. App. 2d 430, 78 Cal. Rptr. 260 (1969), appeal dismissed, 396 U. S. 554 (1970). Opinion of the Attorney General of the State of Connecticut Regarding Non-Resident Tuition, Sept. 6, 1972 (unreported). Question: Did administrative action occur in the context of the case? A. No B. Yes Answer:
songer_fedlaw	A	What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal statute, and if so, whether the resolution of the issue by the court favored the appellant. Fermin FONSECA Flores, Plaintiff, Appellant, v. Robert R. PRANN, Defendant, Appellee; Jaime FARDONK Vazquez, Plaintiff, Appellant, v. PORTO RICO LIGHTERAGE CO., Defendant, Appellee; Roberto GALINDO Ramos, Plaintiff, Appellant, v. SAN JUAN DREDGING CORPORATION, Defendant, Appellee. Nos. 5605, 5606, 5612. United States Court of Appeals First Circuit. Sept. 15, 1960. Harvey B. Nachman, San Juan, P. R., with whom Stanley L. Feldstein and Golenbock & Nachman, San Juan, P. R., were on brief, for appellants. “Walter L. Newsom, Jr., San Juan, P. R., with whom Enrique Cordova Diaz and Brown, Newsom & Cordova, San Juan, P. R., were on brief, for Robert R. Prann, appellee. Antonio M. Bird, San Juan, P. R., with whom Hartzell, Fernandez & Novas, San Juan, P. R., was on brief, for The Porto Rico Lighterage Co., appellee. Sarah Torres Peralta, San Juan, P. R., with whom Luis E. Garcia Benitez, San Juan, P. R., was on brief, for San Juan Dredging Corporation, appellee. Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges. WOODBURY, Chief Judge. These appeals present a common question. They were heard together and can be decided by one opinion. The appellants were seamen and members of the crews of vessels who were injured while at work on their respective vessels when afloat on navigable waters within the territorial limits of Puerto Rico. Their employers had insured their employees in accordance with, and hence were covered by, the Puerto Rico Workmen’s Accident Compensation Act, Act No. 45, Laws of 1935, as amended, 11 L.P.R.A. 1 et seq., and each appellant applied for and was awarded compensation under that Act. Following this each appellant brought suit in the court below against his employer to recover under the Jones Act for negligence and under the general maritime law for unseaworthiness. These appeals are from summary judgments dismissing each complaint on the ground that the plaintiffs’ only remedy was that afforded by the local workmen’s compensation act. In Southern Pacific Co. v. Jensen, 1917, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086, the Court ruled that the Constitution of the United States conferred exclusive power upon the federal government with respect to matters within the admiralty and maritime jurisdiction. Saying at page 215 of 244 U.S., at page 528 of 37 S.Ct. that it must now be accepted as settled doctrine that “ * * * Congress has paramount power to fix and determine the maritime law which shall prevail throughout the country,” the Court held that no State might validly apply its workmen’s compensation law to maritime injuries occurring on its territorial waters. Congress then amended the “saving to suitors” clause to provide not only that suitors in all cases should have the right to a common-law remedy when the common law was competent to give it, but also to give “ * * * to claimants the rights and remedies under the workmen’s compensation law of any state.” But the amendment was struck down as unconstitutional in Knickerbocker Ice Co. v. Stewart, 1920, 253 U.S. 149, 164, 40 S.Ct. 438, 441, 64 L.Ed. 834, on the ground that the constitutional power of Congress to legislate concerning rights and liabilities within the maritime jurisdiction, and remedies for their enforcement, could not be delegated to the States, for the reason that “Congress cannot transfer its legislative power to the states — by nature this is non-delegable.” Later Congress made a similar but more limited attempt but it met the same fate in State of Washington v. W. C. Dawson & Co., 1924, 264 U.S. 219, 44 S.Ct. 302, 68 L.Ed. 646. These decisions impose constitutional restrictions on the power of the States and on the power of Congress to delegate its legislative powers to the States. But, whatever the actual status of the Commonwealth of Puerto Rico may be in all its details, its present status is certainly not that of a State of the United States. Nor is it even that of a territory incorporated into the union preparatory to statehood. Guerrido v. Alcoa Steamship Co., Inc., 1 Cir., 1956, 234 F. 2d 349, 352. As such the Government of Puerto Rico has such powers as Congress from time to time has seen fit to give it. And the broad power of Congress under Article IY, § 3, If 2 to legislate for national territory is limited under the doctrine of the Insular Cases, so-called, only by fundamental constitutional principles. This court in Lastra v. New York & Porto Rico S. S. So., 1 Cir., 1924, 2 F.2d 812, 813, and in Guerrido v. Alcoa S. S. Co., supra, was not aware of any basic principle of the Constitution which prevented Congress from giving Puerto Rico jurisdiction over its own waters. Nor are we. Our problem, therefore, is not one of constitutional limitations. It is one of statutory interpretation. It is whether Congress in the exercise of its constitutional power under Article IV, § 3,1T 2, to legislate for national territory has in fact seen fit to confer on the Government of Puerto Rico power to make its workmen’s compensation law applicable to injuries sustained by employees while at work on its territorial waters. This court in the Lastra case cited above definitely answered this questioned in the affirmative. The basis for the court’s decision was that in 1917 by §§ 7, 8 and 37 of the Second Puerto Rico Organic Act, called the Jones Act, 39 Stat. 951, 954, 964, Congress conferred full power of control over local navigable waters upon the Government of Puerto Rico to the complete exclusion of the admiralty and maritime law of the United States. Later on in the Guerrido case we reaffirmed the result reached in Lastra but not on the broad basis on which this court rested its result in that case, saying in 234 F.2d at page 352 that we had “* * * reached the conclusion that the broad proposition that the admiralty and maritime law of the United States is not in force to any extent in the navigable waters of Puerto Rico which we laid down in the Lastra case cannot be sustained.” We rested this conclusion on a careful and thorough analysis of the applicable legislation, opinions and historical documents which need not be repeated here. It will suffice to say that as a result of our analysis we came to the conclusion “ * * * that almost from the day of the Spanish cession of Puerto Rico to the United States it was recognized that the navigable waters of the island were to be regarded as navigable waters of the United States subject to the federal jurisdiction.” We recognized that the statutes and opinions to which we referred to support this conclusion dealt primarily with the exercise of admiralty and maritime powers by the federal government in Puerto Rican waters. But at page 354 we said: “ * * * we find nothing in them to suggest that the rules of the maritime law of the United States were not equally applicable in those waters to determine the rights and liabilities of private persons.” Nevertheless, in Guerrido we adhered to the conclusion reached in Lastra on the ground that §§ 7, 8 and 37 of the Second Organic Act of 1917, which were continued in force and form a part of the Puerto Rican Federal Relations Act, gave the Legislature of Puerto Rico general legislative power over local waters. Therefore in the Guerrido case we came to the conclusion “ * * * that the rules of the admiralty and maritime law of the United States are presently in force in the navigable waters of the United States in and around the island of Puerto Rico to-the extent that they are not locally inapplicable either because they were not designed to apply to Puerto Rican waters or because they have been rendered inapplicable to these waters by inconsistent Puerto Rican legislation.” But we were very careful immediately to point out at page 355 that this was of course not to say “ * * * that Puerto Rican legislation could thus supplant a rule of maritime law which Congress in the exercise of its constitutional power has expressly made applicable to Puerto Rican waters.” It is certainly true that neither the Jones Act nor the general maritime law of unseaworthiness are inherently inapplicable in Puerto Rico. But on the other hand, there is nothing in the Jones Act specifically making its provisions applicable in the territorial waters of Puerto Rico and we are not aware that Congress has ever taken action to make the general maritime law of unseaworthiness apply in those waters. Instead in Lastra and Guerrido this court held and we agree that Congress in the valid exercise of powers conferred upon it by the Constitution gave the Legislature of Puerto Rico power to enact legislation inconsistent with the Jones Act and the general maritime law, and that the Legislature of Puerto Rico had exercised its power in its Workmen’s Accident Compensation Act. Of course if Congress sees'fit it may supplant the local legislation as it applies to local navigable waters by making the Jones Act and the general maritime law of unseaworthiness specifically applicable in Puerto Rican waters, but it is not our function to do so. We recognize that this holding creates an area of lack of uniformity in the maritime law. But it is clearly recognized in the Jensen case, supra, that absolute uniformity in things maritime is not a constitutional requirement nor is it even essential to the proper harmony of the maritime law in its interstate and international relations. For instances of lack of uniformity in the law of admiralty as applied in this country see the dissenting opinion of Mr. Justice Holmes in the Jensen case and the dissenting opinion of Mr. Justice Brandéis in the Knickerbocker Ice Co. case. If uniformity is desirable, it can be readily achieved by Congress. Until it specifically does so, we infer as this court did in the Lastra and Guerrido cases that in the sections of the Second Organic Act referred to above Congress intended to clothe the Government of Puerto Rico with power to provide for the application of its workmen’s compensation act to injuries suffered by employees on local navigable waters. And this inference is supported by the practically contemporaneous amendments of the “saving to suitors” clause held unconstitutional in the Knickerbocker Ice Co. and Washington cases, supra, for those amendments indicate that it was then the mood of Congress to permit application of local law to injuries suffered by employees on local navigable waters. If the mood of Congress has changed, means for expressing the change are readily at hand. Judgments will be entered affirming the judgments of the District Court. . At least, like the court below, we consider them to have been seamen and members of tbe crews of vessels although two of them worked on stationary dredges one of which was engaged in a highway construction project. See Senko v. La Crosse Dredging Corp., 1957, 352 U.S. 370, 77 S.Ct. 415, 1 L.Ed.2d 404; Grimes v. Raymond Concrete Pile Co., 1958, 356 U.S. 252, 78 S.Ct. 687, 2 L.Ed. 2d 737. . Section 21 of that act in material part provides: “When an employer insures his workmen or employees in accordance with this chapter, the right herein established to obtain compensation shall be the only remedy against the employer; * * . De Lima v. Bidwell, 1901, 182 U.S. 1, 21 S.Ct. 743, 45 L.Ed. 1041, and Downes v. Bidwell, 1901, 182 U.S. 244, 21 S.Ct. 770, 45 L.Ed. 1088, and subsequent cases confirming and applying their doctrine, see cases cited in People of Puerto Rico v. Tapia, 1918, 245 U.S. 639, 38 S.Ct. 192, 62 L.Ed. 525. . Law 600, 64 Stat. 319; 48 U.S.C.A. § 731 et seq. Question: Did the interpretation of federal statute by the court favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_usc1sect	1332	What follows is an opinion from a United States Court of Appeals. Your task is to identify the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 28. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA". John W. CARSON and Joanna Holland, Plaintiffs-Appellants, v. ALLIED NEWS CO., an Illinois Corporation, et al., Defendants-Appellees. No. 74-1258. United States Court of Appeals, Seventh Circuit. Argued Jan. 20, 1975. Decided Feb. 28, 1975. Paul M. Levy, Terry L. Engel and Earl A. Deutsch, Chicago, 111., for plain tiff s-appellants. Burton Joseph, Jack Joseph, Chicago, 111., for defendants-appellees. Before FAIRCHILD, Chief Judge, STEVENS, Circuit Judge, and MAR-KEY, Chief Judge. Chief Judge Howard T. Markey of the United States Court of Customs and Patent Appeals is sitting by designation. STEVENS, Circuit Judge. In their original complaint for libel, plaintiffs alleged that they were New York “residents”; in their amended complaint they alleged that they were California “residents.” Among the eight defendants are two distributors allegedly citizens, respectively, of New York and California. Presumably, though the pleadings are silent on the point, plaintiffs intended to invoke federal jurisdiction under 28 U.S.C. § 1332(a)(1). The absence of complete diversity was apparently unnoticed in the district court, where a summary judgment on the merits was entered for defendants. After we called the parties’ attention to the jurisdictional defect, both urged us to decide the merits and to dismiss the non-diverse defendants. The question is whether we have such power and, if. so, whether this is an appropriate case for its exercise. At best, our power is extremely doubtful. In a comparable situation in 1942, we held that we must “deal with the record as we find it” and “are powerless” to do anything other than to recognize the jurisdictional defect and remit the case to the district court. Alderman v. Elgin, Joliet & Eastern Ry., 125 F.2d 971, 973. Specifically, we held that we could not allow the plaintiff to amend his pleading by striking dispensable parties in order “to bring the case within federal jurisdiction.” Ibid. Logically, it might be argued that if the district court has the power to create jurisdiction retroactively by dismissing a nondiverse defendant, see Kerr v. Compagnie De Ultramar, 250 F.2d 860, 862— 864 (2d Cir. 1958), we should have like authority. Since the ability of the district court to perfect its jurisdiction in this manner may rest either on its inherent powers or on a liberal construction of Rule 15(a) of the Federal Rules of Civil Procedure, see Kerr, supra, at 864, it is conceivable that 28 U.S.C. § 1653, which was enacted subsequent to our Alderman decision, might be read to give us such jurisdiction. Even assuming that the jurisdictional argument is tenable, notwithstanding the unbroken line of authority to the contrary, we are satisfied that this is not an appropriate case in which the appellate court should dismiss a non-diverse party. There is some ambiguity as to whether both the New York and the California distributors, or just one of the two, should be dismissed. Moreover, though plaintiffs have alleged the principal places of business of the other defendants, they have not alleged such defendants’ places of incorporation, and, therefore, the allegations of citizenship are insufficient. 28 U.S.C. § 1332(c). Finally, if the case is remanded to the district court, and the pleadings are re-framed there, the district judge will have an opportunity to reexamine the merits in the light of an arguably relevant and important intervening decision of the United States Supreme Court. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). Accordingly, the judgment of the district court is vacated. On remand, the district court should allow amendments to cure the jurisdictional defects noted and, in the absence of such amendments, shall dismiss the case without prejudice. See Alderman, supra, 125 F.2d at 973. Vacated. . In paragraph 5 of Count III of their complaint, plaintiffs alleged that “defendant, Metropolitan News Co., is a corporation, and maintained and does maintain its principal place of business in the City of New York and State of New York.” In paragraph 6 they alleged that “defendant, Sunset News Co., is a corporation, and maintained and does maintain its principal place of business in the City of Los Angeles, County of Los Angeles and State of California.” See 28 U.S.C. § 1332(c). . We requested the parties to file supplemental memoranda discussing the jurisdictional problem. Neither party made any formal motion to amend the pleadings or to dismiss any of the defendants. In their memorandum, plaintiffs requested us to consider the appeal on its merits “and in the event that it determines such appeal to be meritorious as to the real and substantive parties defendant, then and in that case it may shape its remand order so that the motion to dismiss the unnecessary party defendant which destroyed the diversity may be made to the District Court prior to any further proceedings that may be appropriate in such court. Alternatively, plaintiffs-appellants urge us simply to ignore the nondiverse defendant(s)’ citizenship, arguing that they are merely “nominal,” “unnecessary” or “formal” parties within the meaning of Wormley v. Wormley, 21 U.S. (8 Wheat.) 421, 5 L.Ed. 651; Roth v. Davis, 231 F.2d 681, 683 (9th Cir. 1956); Hann v. City of Clinton, 131 F.2d 978, 981 (10th Cir. 1942); and the cases cited therein. It is clear, however, that these distributors are not “formal” or “unnecessary” parties within the meaning of these decisions; plaintiffs sought to recover $1 million in damages from each. While their presence in the suit is “unnecessary” in terms of recovering from National Insider, Inc., and from the other diverse distributors, we cannot ignore the absence of complete diversity created by their joinder in this cause of action. See Schuckman v. Rubenstein, 164 F.2d 952, 956 (6th Cir. 1947), cert. denied, 333 U.S. 875, 68 S.Ct. 905, 92 L.Ed. 1151. Defendants requested us to reach the merits by dismissing the nondiverse distributor or distributors. . See also Wells v. Universal Pictures Co., 166 F.2d 690, 692 (2d Cir. 1948); Schuckman v. Rubenstein, 164 F.2d 952, 956 (6th Cir. 1947), cert. denied, 333 U.S. 875, 68 S.Ct. 905, 92 L.Ed. 1151; International Ladies’ Garment Workers’ Union v. Donnelly Garment Co., 121 F.2d 561, 563 (8th Cir. 1941); Levering & Garrigues Co. v. Morrin, 61 F.2d 115, 121 (2d Cir. 1932), affd on other grounds, 289 U.S. 103, 53 S.Ct. 549, 77 L.Ed. 1062. . 28 U.S.C. § 1653 provides: “Defective allegations of jurisdiction may be amended, upon terms, in the trial or appellate courts.” Since it is settled that this statute permits an amendment to correct a jurisdictional allegation which was defective because it described the residence rather than the citizenship of a party, see Burnstein v. Columbia Broadcasting System, Inc., 291 F.2d 8, 9-10 (7th Cir. 1961), and since the rule forbidding the appellate court to allow an amendment to correct a defective jurisdictional allegation was developed in precisely that type of case, see Denny v. Pironi, 141 U.S. 121, 123-124, 11 S.Ct. 966, 35 L.Ed. 657; Continental Life Insurance Company v. Rhoads, 119 U.S. 237, 240, 7 S.Ct. 193, 30 L.Ed. 380; Morgan’s Executor v. Gay, 86 U.S. (19 Wall.) 81, 83, 22 L.Ed. 100, it is arguable that the statute has removed the predicate for our decision in Alderman, supra. On the other hand, the predecessor to § 1653, 28 U.S.C. § 399 (1940), provided, in relevant part: “Where, in any suit brought in . any district of the United States, the jurisdiction of the district court is based upon the diverse citizenship of the parties, and such diverse citizenship in fact existed at the time the suit was brought . though defectively alleged, either party may amend at any stage of the proceedings and in the appellate court upon such terms as the court may impose, so as to show on the record such diverse citizenship and jurisdiction, and thereupon such suit shall be proceeded with the same as though the diverse citizenship had been fully and correctly pleaded at the inception of the suit . ..” (Emphasis added). On two occasions, the courts construed § 399 not to permit amendments in the court of appeals striking nondiverse parties. International Ladies’ Garment Workers’ Union v. Donnelly Garment Co., supra, 121 F.2d at 563; Levering & Garrigues Co. v. Morrin, supra, 61 F.2d at 121. When § 399 was revised and recodified as § 1653 in 1948, the legislative history indicates that the “[s]ection was extended to permit amendment of all jurisdictional allegations instead of merely allegations of diversity of citizenship as provided by section 399 of title 28, U.S.C., 1940 ed.” H.R.Rep.No.308, 80th Cong., 1st Sess. A145 (1947). We need not in this case decide whether an amendment striking a nondiverse party is an amendment of a “jurisdictional allegation” within the meaning of § 1653. Question: What is the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 28? Answer with a number. Answer:
songer_respond1_1_3	D	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case. Hazel A. PARMER, Plaintiff-Appellant, v. The NATIONAL CASH REGISTER COMPANY et al., Defendants-Appellees. No. 74-1131. United States Court of Appeals, Sixth Circuit. Argued June 10, 1974. Decided Sept. 20, 1974. Milton A. Hayman, Steubenville, Ohio, for plaintiff-appellant. N. Victor Goodman, Columbus, Ohio, for International Brotherhood of Electrical Workers; Topper, Alloway, Goodman, DeLeone & Duffey, Columbus, Ohio, on brief. J. Mack Swigert, Cincinnati, Ohio, for National Cash Register Co.; Taft, Stet-tinius & Hollister, William K. Engeman, Lawrence J. Barty, Cincinnati, Ohio, Robert E. Signom, Dayton, Ohio, of counsel. Donald G. Logsdon, Charleston, W. Va., for Local 1854, International Brotherhood of Electrical Workers; Stanley M. Hostler, Hostler, Logsdon, Shinaber-ry & McHugh, Charleston, W. Va., on brief. Before EDWARDS, McCREE and ENGEL, Circuit Judges. PER CURIAM. We consider an appeal from a judgment entered upon dismissal of plaintiff-appellant’s suit brought under Section 301 of the Labor Management Relations Act of 1947, 29 U.S.C. § 185(a), and Section 706 of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(g), against National Cash Register Company (NCR), International Brotherhood of Electrical Workers, and Local 1854, International Brotherhood of Electrical Workers. Hazel Parmer alleged in her complaint that she was employed by NCR for more than three years until her discharge on August 19, 1969. During that period, she was a member in good standing of Local 1854. On that date, appellant was ordered to work in a lower job classification to fill in for absent employees whose production duties were deemed essential. She refused, claiming that only women were ordered to work temporarily in these lower job classifications, while men with less seniority were never requested to perform similar duties. She was then discharged, pursuant to the collective bargaining agreement, for insubordination. The Local processed her grievance to a step short of arbitration and carried it no further for want of merit. Appellant alleged that, because of her sex, she was discriminatorily harassed and ultimately discharged by the company in violation of her rights, and that the local and international unions, by failing to properly process her grievance, breached their duty of fair representation. On appeal, Parmer presents five issues in which she claims error on the part of the district court. First, she contends that she proved by a preponderance of the evidence that the International and Local jointly violated their duty of fair representation in processing the grievance relating to her discharge and that the court erred in not so finding; second, that the preponderance of evidence affirmatively established, contrary to the court’s determination, that she was discharged for discrimination because of sex within the meaning of 42 U.S.C. § 2000e-5(g); third, that the court should have held that the evidence clearly established that appellees had collectively violated Title VII of the Civil Rights Act of 1964; fourth, that the court erred in not granting her costs and attorney’s fees for pursuing her cause of action pursuant to 42 U.S.C. § 2000e-5(k); and, fifth, that the court erred in not permitting all issues against all defendants, as stipulated by the parties, to be presented at the same time for its full consideration. Rule 52(a) of the Federal Rules of Civil Procedure provides that “[f]indings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witness.” This means that a determination of fact will not be overturned unless “the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake was committed,” United States v. U. S. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948); Ash v. Hobart Mfg. Co., 483 F.2d 289 (6th Cir. 1973), viewing the evidence in the light most favorable to the prevailing party, Nathan Const. Co. v. Fenestra, Inc., 409 F.2d 134, 137-138 (8th Cir. 1969), see Strickler v. Pfister Associated Growers, Inc., 319 F.2d 788, 790 (6th Cir. 1963). The trial court found that appellant failed to establish her case by a preponderance of the evidence. Although the evidence in this case would permit the inferences that appellant was discharged because of sex, and that the Local and International breached their duty of fair representation, we cannot conclude that the lower court was clearly erroneous in its findings. Also appellant’s fourth assignment is unavailing since, by virtue of the language of Section 2000e-5(k), costs and attorney’s fees are awarded only to the prevailing party. The final assignment of error is that, since the claims against both the company and the unions, and the evidence relating to them, were so closely interrelated, failure to consider them at the same time was reversible error. The decision to sever issues is left to the sound discretion of the trial court and its determination should only be reversed for abuse of that discretion, Crummett v. Corbin, 475 F.2d 816, 817 (6th Cir. 1973). Here appellant has failed to show how she was prejudiced by any severance of the issues, and since she failed to object to the procedures of which she complains, we find no error in this respect. Affirmed. . There was a general practice of making temporary job assignments of this nature from appellant’s job classification, mechanical line inspector, which was an experimental classification that was being phased out in the ongoing collective bargaining negotiations. Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case? A. agriculture B. mining C. construction D. manufacturing E. transportation F. trade G. financial institution H. utilities I. other J. unclear Answer:
songer_district	A	What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable". NATIONAL LABOR RELATIONS BOARD, Petitioner, v. Samuel B. GASS et al., Respondents. No. 6793. United States Court of Appeals First Circuit. Heard March 7, 1967. Decided May 5, 1967. Allison W. Brown, Jr., Washington, D. C., Atty., with whom Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and William J. Avrutis, Atty., Washington, D. C., were on brief, for petitioner. Irving Isaacson, Lewiston, Me., for Samuel B. Gass, respondent. Courts Oulahan, Washington, D. C., with whom Charles S. Rhyne, Alfred J. Tighe, Jr., Washington, D. C., Benjamin P. Lamberton, III, and Rhyne & Rhyne, Washington, D. C., were on brief, for Lipman Bros., Inc., et al., respondents. Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges. McENTEE, Circuit Judge. This is a petition to enforce an order of the National Labor Relations Board issued against the respondents, Gass and Lipman, based on Board findings that these respondents engaged in certain unfair labor practices. The case arises out of the alleged unlawful discharge of a long time Gass employee. From this charge other issues developed upon which the Board made additional unfair labor practice findings, all of which are hereinafter discussed. The pertinent background facts are as follows. The Lipmans are in the poultry business with principal places of business in Augusta and Winslow, Maine. They raise, process and sell poultry on a large scale through the medium of seven corporations. These corporations are controlled by three brothers, Bernard, Frank and Harold Lipman. Respondent Samuel B. Gass, a Maine corporation (hereinafter Gass) is a trucker with a principal place of business in Augusta. It is a family corporation in which one Sam Gass is president and his wife is treasurer. Mrs. Gass is a sister of the Lip-man brothers. Actually Gass has only one customer — Lipman—and most of the time is engaged in hauling poultry feed from Lipman’s feed mill in Augusta to some 150 to 200 poultry farms within a general fifty mile radius where Lipman raises its chickens. Gass operates nine specially equipped delivery trucks and employs seven drivers, a mechanic and a mechanic-driver. From this business it grosses in excess of $100,000 a year. Miville, the discharged employee in question, was one of these seven drivers. In August 1964 he and another driver succeeded in getting all nine Gass employees to sign union authorization cards. On the day that the last of the drivers signed up, (August 19), one Morgan, the superintendent of the Lipman feed mill in Augusta, heard about this union activity. He contacted Sam Gass and immediately tried to discourage it. The next day (August 20) the following occurrences took place. Early that morning Harold Lipman discharged Miville, ostensibly for other than union reasons. When Miville remarked that he was really being fired on account of his union activities, Harold replied “You didn’t have to sign the papers,” meaning the union papers. Then Harold asked Mi-ville how many Gass drivers had signed up with the union and when Miville told him they had signed up “one hundred per cent,” Harold Lipman angrily remarked “I’m taking the trucking outfit over.” After rebuking Miville he ordered him off the Lipman property. Also on that day Gass received written notice from the union stating that it represented a majority of the employees and demanding collective bargaining rights. Shortly afterwards Sam Gass showed this notice to one of the Lipmans. On this same morning Miville brought one Hastings, the president and business agent of the union, to the truck terminal to see Sam Gass about Miville’s job. Sam was not available at the time but they were confronted by Mrs. Gass who, when she learned who Hastings was, subjected him to a strong outburst of anti-union animus and ordered him off the premises. An hour or so later Miville telephoned Sam Gass to try to arrange a conference between him and Hastings. At that time Mrs. Gass broke in on the telephone conversation and again expressed strong antiunion feelings. At the end of this conversation when Mi-ville asked Sam Gass whether he (Mi-ville) was “all through” Sam replied “Lipman don’t want you on the farm. I have no more work for you.” That afternoon Sam Gass informed his truck drivers he was losing his business and that their employment would end as of the following day. The next morning, Friday, August 21,' one of the Gass employees told Morgan he had heard that Sam was losing his business and asked what would happen if the drivers withdrew from the union. Shoirtly thereafter word came back through Morgan that if the drivers got together with Sam Gass before 5 o’clock that day and “get this straightened out” the Lipmans “would give him back his business.” Thereupon a hurried conference was called at which the truck drivers, Mr. and Mrs. Gass and Morgan, were present. As a result of this meeting the drivers agreed to withdraw from the union and Gass continued operating the business. That afternoon two drivers approached Sam Gass about Miville getting his job back now that they had withdrawn from the union. Sam stated he would do all in his power to have Mi-ville reinstated but added that he didn’t know if the Lipmans wanted Miville back. The following Monday, August 24, Sam Gass offered Miville his job back “under the old conditions” but Miville replied that he would come back to work only if he “could talk freely with the boys about a union.” Sam said “under those circumstances I have no work for you” and hired a new driver who was there seeking employment at the time. Some two weeks later Miville received a letter from Gass’ attorney stating he was authorized to offer him “immediate and unconditional reinstatement” to his job nothwithstanding he had twice refused reemployment. Upon receipt of this letter on Friday, September 10, Mi-ville went to the terminal and in the absence of Sam told Mrs. Gass he was reporting for work in accordance with the letter. She informed him that a truck would not be available until the following Monday, whereupon Miville left. In a matter of minutes Mrs. Gass appeared at the office doorway to the garage where Miville had stopped to visit and told him she wouldn’t have him or anyone else swearing or insulting her— and threatened to fire him then and there. Miville denied that he swore at or insulted Mrs. Gass. At any rate, the next day he received a telegram from Sam Gass discharging him for “insubordination and profanity to Mrs. Gass” on the previous day. At no time thereafter was Miville offered reinstatement in his job. On the basis of the above evidence the Board found that the Lipmans were engaged in a single integrated enterprise; that Lipman and Gass were joint employers of Miville and as such discriminatorily discharged and refused to reinstate him in violation of section 8(a) (3) and (1) of the Act; that through respondents’ coercive interrogation and threats of going out of business the Gass drivers were coerced into abandoning their union membership in violation of said section 8(a) (1); and finally the Board found that the respondents refused to bargain with the union in violation of section 8(a) (5) and (1) of the Act. It also rejected the respondents’ contention that the Gass drivers are agricultural laborers and hence exempt from the Act. Broadly, the respondents resist enforcement of the Board’s order because they contend that none of these findings are supported by substantial evidence. In particular, the respondents vehemently press their contentions that they did not employ and were not joint employers of Miville; that Lipman is not a single integrated enterprise and that the Gass drivers are agricultural laborers and by reason thereof are exempt under section 2(3) of the Act. It is now so well settled as not to require citation of authority that this court’s function on a petition to enforce an N.L.R.B. order is merely to determine whether on the record as a whole there is sufficient evidence to support the Board’s findings. We think there is substantial evidence to support the Board’s findings. To begin with, we ■call attention to the fact that on a previous petition to enforce an order of the Board against the Lipmans, decided by this court some fifteen months ago, the Lipman corporations admitted and this court found that this same poultry operation was a single integrated enterprise. N. L. R. B. v. Lipman Brothers, Inc., 355 F.2d 15, 21 (1st Cir. 1966). There is no evidence before us of any change in the corporate set-up or modus operandi of this business in the relatively short period since this admission was made. Although this finding does not bind the respondent Gass, it not being a party to the earlier case, we see no reason why we cannot take judicial notice of this admission and of our findings based on it, as far as the respondent Lipman is concerned; and we do so notice this earlier finding. Quite apart from this admission in the earlier case, there is substantial evidence in the record before us that Lipman is a single integrated business enterprise. As above stated, the three Lipman brothers are still the only officers and directors of all seven corporations in question. Together these three brothers own the controlling interest in each of them. From an examination of the part these corporations play in the overall operation of this business, and from the division of responsibilities between the three Lipman brothers — apportioned without regard to corporate lines, it is clear that this is but one large integrated poultry business — not several businesses.S. *** Also, we think there is substantial evidence in the record to support the Board’s finding that Lipman and Gass were joint employers of the Gass drivers and as such discriminatorily discharged and refused to reinstate Miville. It is evident that although Gass paid the drivers, Lipman held and exercised de facto control over Gass at least insofar as its drivers are concerned. The fact that Lipman could terminate its hauling agreement with Gass at will, plus the fact that Harold Lipman said he was going to take over the Gass trucking operation when he learned that all the Gass drivers had joined the union, demonstrates that Lipman was actually in complete control of the Gass trucking business. Furthermore, almost immediately after learning of the successful union effort led by Miville in signing up the drivers, Lipman embarked upon a campaign of harassment against them and against Miville in particular. This clearly showed antiunion animus on the part of Lipman. Morgan, the superintendent of its feed mill, was critical of the drivers’ actions in joining the union. Lip-man immediately declared the facilities of this mill “off limits” to Gass drivers, which restrictions were removed when the drivers renounced their recently acquired union membership. Finally, Gass and Lipman both “pulled the rug”, so to speak, on all the Gass drivers by threatening that Gass was then and there going to cease doing business, obviously because the Gass drivers joined the union. What better evidence is needed of anti-union animus and coercion? It is also significant, we think, that Harold Lipman — not Sam Gass — discharged Miville and it was primarily Lipman’s opposition that kept this discharged employee from being reinstated even when Sam manifested a desire to rehire him. Moreover, the events immediately preceding the August 21 meeting at which the drivers agreed to withdraw from the union, further show that in fact Lipman was in control of the Gass trucking operation and for all practical purposes was a joint employer of these drivers. Lipman also directed their daily operations from the feed mill. It was only after the Lipmans had sent word that they would give back the business to Gass on the condition that the matter was “straightened out” that the union withdrawal meeting took place. Obviously the “straightening out” meant renunciation by the drivers of their union membership. The Board could conclude very reasonably from the facts recited above that the renunciation demanded by Sam Gass and his wife was dictated by Lip-man. Such conduct is unlawful. N. L. R. B. v. Yale Manufacturing Company, 356 F.2d 69, 72 (1st Cir. 1966). Without repeating the evidence previously mentioned, suffice it to say that we are also of the opinion there was ample evidence that Miville’s discharge was motivated by the fact that he was the prime mover in getting the drivers to join the union. We are convinced that his alleged use of vulgar or abusive language to Frank Lipman and to Mrs. Gass were mere pretexts and not the real cause for his discharge or for his failure to be reinstated. The substantial evidence points to Miville’s union interest and activity as the real reason behind both. Furthermore, we think that from her conduct, the Board could reasonably conclude that Mrs. Gass’ opposition to Mi-ville’s reemployment stemmed from her fear of renewed union activity. As we said in Lipman, supra “In evaluating these discharge situations the pivotal factor is motive” and “the mere existence of a valid ground for discharge is no defense to an unfair charge if such ground was a pretext and not the moving cause.” Sam Gass’ refusal to talk with the union, Gass’ failure to acknowledge receipt of the union’s demand for collective bargaining and its refusal to contact or talk with the union, as well as the part both Lipman and Gass played in bringing about the drivers’ withdrawal from the union, certainly is sufficient to support a finding that the respondents refused to bargain in violation of section 8(a) (5) and (1) of the Act. The respondents attack the credibility of some of the General Counsels’ witnesses. In this connection we point to what we said in N. L. R. B. v. Universal Packaging Corporation, 361 F.2d 384, 388 (1st Cir. 1966) “that questions of credibility are for the Board, subject to judicial review only when the Board oversteps the bounds of reason. We shall not substitute our judgment for that of the trial examiner who heard the testimony and observed the witnesses, nor for that of the Board with its vast experience in dealing with labor disputes.” The contention that the Gass drivers were “agricultural laborers”— and hence not subject to the Act does not impress us. The Supreme Court has held that the definition of agriculture has two distinct branches. Primarily, it includes farming in all its branches, i. e., cultivation, tillage of the soil, dairying, etc. But it also has a broader meaning which “includes any practices, whether or not themselves farming practices, which are performed either by a farmer or on a farm, incidentally to or in conjunction with ‘such’ farming operations.” Farmers Reservoir & Irrigation Co. v. McComb, 337 U.S. 755, 763, 69 S.Ct. 1274, 1278, 93 L.Ed. 1672 (1949). Respondents do not contend that the work performed by the Gass drivers in this case is farming. They do insist, however, that the delivery of the poultry feed is in large part work performed on farms and is incidental to the raising of poultry. In disposing of this contention we need only to point out that in Bowie v. Gonzalez, 117 F.2d 11 (1st Cir. 1941), and later in Calaf v. Gonzalez, 127 F.2d 934 (1st Cir. 1942), we held that the transporting of sugar cane from farms to a sugar mill was incidental to the work of the mill. Similarly, we think the delivery of the poultry feed in this case is incidental to the work of the feed mill — rather than the farms. The mere fact that the success of raising the chickens depends to a great extent upon trucking poultry feed to these farms, or the further fact that this work is sometimes done by farm laborers, does not make these drivers agricultural laborers. It is significant that these drivers are not employed or paid by the farms nor are they under the control of the farmers. It would also seem that the delivery of poultry feed here is much like the delivery of water or electricity to farms. See Farmers Reservoir & Irrigation Co. v. McComb, supra. Surely no one would seriously contend that this makes employees of these companies, who go on the farms in connection with their jobs, agricultural laborers — however long they work there. Consequently, in our opinion the Board was amply justified in finding that the work of the Gass drivers was incidental to the operation of the feed mill rather than to the operation of any farmer or farm. Moreover, although we do not decide the question, even if these deliveries were incidental to farming we doubt that the physical presence of the drivers on the farm premises, while such deliveries are being made, is the kind of activity that Congress intended would qualify them for this exemption. Finally, on the record before us, we find no error in the scope of the Board’s order. The evidence was sufficient to warrant the finding that Gass and Lip-man were joint employers and therefore the order covering both is justified. We do not interpret this order as imposing any unwarranted hardship on the respondent Lipman. All other points raised by the respondents have been considered and found to be without merit. A decree will be entered enforcing the order of the Board. . Lipman owns ten of these farms. The rest are leased from farmers who are engaged by Lipman to raise the chickens as part of their lease arrangement. Lipman retains title to the chickens, supplies the feed, etc. . Following the conversation with Sam Gass, Morgan told two of the drivers that Sam Gass knew what the employees were up to; that he (Morgan) thought they had jumped into the union too quickly and should have first talked it over with Sam Gass. Later that day signs were posted at the feed mill where the Gass drivers loaded up their trucks daily and while there used the rest room facilities and vending machines, that the mill facilities were now “off limits” to them. . As Miville was about to start work, Sam Gass told him that Frank Lipman wanted him off the Lipman property and also wanted to see him that morning at the feed mill for using vulgar language to him a few days before in the presence of others. When Miville went to the mill looking for Frank, his brother Harold replied that he would take care of him and told him he was “all through.” The reason given to Miville for this action was “You’ve been shooting your mouth off at my chicken farmers and been fooling [with] women on the farms.” . Truck Drivers Warehousemen and Helpers Union Local No. 340 affiliated with the International Brotherhood of Teamsters, etc. . She stated “We don’t want to talk to no union man. We don’t want no union man around here.” . Tlie business arrangement between Gass and Lipman was oral and could be can-celled at the will of the latter. . At this meeting the employees told Mr. and Mrs. Gass that they had talked with Morgan and indicated they would like to straighten things out and get back to normal. Mr. and Mrs. Gass said that the drivers had to send the union a registered letter and a telegram signed by all of them, withdrawing from the union. A letter was then composed by one of the drivers with the help of Sam Gass and was signed by all the drivers and taken to the post office where it was registered and mailed. From there the drivers went to the telegraph office where each driver signed and sent a telegram to the union. This whole affair took about three hours working time but this loss of time was not deducted from the drivers’ pay. . Later Morgan told one of the drivers that if they had not withdrawn from the union when they did, they would have been working for him the following Monday under far more restrictive rules relating to coffee breaks and other privileges previously extended to the Gass drivers at the feed mill. . Five of the Lipman controlled corporations are engaged in the following activities which contribute directly to the final poultry product. Pinecrest Poultry Farms, Inc. hatches chickens and sells them to Lipman Poultry Farms, Inc., which grows these chickens and then sells them to Lipman Bros., Inc. The latter kills, dresses and sells the dressed poultry on the market and sells the byproducts to By-Products, Inc. This corporation processes these by-products and sells them to Samuel Lipman Sons, which uses them in making poultry feed which it sells to Lipman Poultry Farms, Inc., that in turn feeds it to the chickens being raised on the various farms. Also, all three Lipman brothers are actively engaged in the day to day Lipman operations which are divided between them, as follows: Bernard has charge of sales; Frank supervises the feed mill and the raising of chickens and Harold looks after the rolling stock, plant maintenance and the production of the dressed poultry. . Section 2(3) of the Act, 29 U.S.O. § 152(3) provides in pertinent part “The term ‘employee’ * * * shall not include any individual employed as an agricultural laborer * * . The record shows that at the farms it takes the drivers from an hour to an hour and a half to discharge the load of feed into the poultry house storage bins. . Respondents call our attention to Nix v. Farmers Mutual Exchange of Calhoun, 218 F.2d 642 (5th Cir. 1955) and Mitchell v. Georgia Broiler Supply, Incorporated, 186 F.Supp. 341 (N.D.Ga.1960). These cases are clearly distinguishable from the instant one on their facts and to the extent that Mitchell supports Gass we do not follow it. 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_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. BUCHER v. VANCE et al. Circuit Court of Appeals, Seventh Circuit. December 13, 1929. No. 4230. A. D. Gash, of Chicago, 111., for appellant. Allan Healy, of Chicago, 111., for appellees. Before ALSCHULER, EVANS, and PAGE, Circuit Judges. ALSCHULER, Circuit Judge. The appeal is from a decree of the District Court dismissing as to appellee Bates a creditors’ bill, to which Bates was a party defendant, brought in the circuit court of Cook county, 111.,' and removed to the federal court by Bates. Bueher had recovered in the state court a judgment for $1,301.75 against L. F. Vance, and execution thereon was returned unsatisfied. In the United States District Court for the Northern District of Illinois there was pending a suit brought by Vance, in which, rmder order of the court, there had been paid to Bates, as the clerk of said District Court, a sum of money, of which the court ordered its clerk, Bates, to pay Vance the sum of $5,626.44. Pursuant to the order, Bates, as clerk, made and sent to Vance a check for that amount, which cheek Vance declined to accept, and returned it to Bates, leaving the possession of the fund unchanged. Bucher filed his creditors’ bill in the state court, making Bates a party, seeking thus to subject the fund to the payment of his judgment against Vance. The single issue here is whether funds so paid into and remaining under the control of the District Court can be reached by a creditors’ bill upon a judgment in another court. Section 851, 28 USCA, makes provision for the payment of money into court and its deposit. Section 852 provides: “No money deposited as aforesaid shall be withdrawn except by order of the judge or judges of said court, respectively, in term or in vacation, to be signed by such judge or judges, and» to be entered and certified of record by the clerk; and every such order shall state the cause in or on account of which it is drawn.” In Wayman v. Southard, 10 Wheat. (23 U. S.) 1, 23, 6 L. Ed. 253, it was said: “The jurisdiction of a court is not exhausted by the rendition of its judgment, but continues until that judgment shall be satisfied.” In Osborn v. United States, 91 U. S. 474, 479, 23 L. Ed. 388, it was said: “The power of the court over moneys belonging to its registry continues until they are distributed pursuant to final decrees in the eases in which the moneys are paid. If from any cause they are previously withdrawn from the registry without authority of law, the court can, by summary proceedings, compel their restitution.” Notwithstanding the issuance ' of the check, the money thus paid into court was not distributed until it reached the hand of the party to whom the court ordered it paid. The making of the order and the issuing of the cheek were not of themselves a distribution. They were steps which would lead to ultimate distribution by actual payment of the fund pursuant to the court’s order. The trend of federal decisions has long been quite strongly against the right to subject such a fund to control by the process of another court, or through other proceedings. In Re Lottawanna, 20 Wall. (87 U. S.) 201, 224, 22 L. Ed. 259, it was sought by an independent proceeding to reach a fund in the registry of the court. The court refused to subject the fund to seizure for the satisfaction of a judgment against its owner, giving as reasons for its conclusion: “1. Because the fund, from its very nature, is not subject to attachment either, by the process of foreign attachment or of garnishment, as it is held in trust by the court to be delivered to whom it may belong, after hearing and adjudication by the court. “2. Because the proceeds in such a case are not by law in the hands of the clerk nor of the judge, nor is the fund subject to the control of the clerk. Moneys in the registry of the Federal courts are required by the act of Congress to be deposited with the Treasurer of the United States, or an assistant treasurer or designated depositary, in the name or to the credit of such court, and the provision is that no money deposited as aforesaid shall be withdrawn except by the order of the judge or judges of said-. eourts respectively, in term time or vacation, to be signed by such judge or judges and to be entered and certified of record by the clerk. Regulations substantially to the same effect have existed in the acts of Congress for more than half a century, and within that period it is presumed that no proceeding to attach such a fund by a creditor of the owner has ever been sustained.” In Jones v. Merchants’ Nat. Bank et al. (1 C. C. A.) 76 F. 683, 687, 35 L. R. A. 698, it was held that bills would not lie to reach funds in the hands of a United States District Court or other depositaries of the court. In the opinion it was said: “The futility of all such- bills is sufficient to defeat them, because, notwithstanding the pendency of one of them, the court having control of a fund may order the entire disposition of it summarily, thus leaving nothing for the bill to act on. A bill which can reach no result except by staying the ordinary and rightful exercise of the essential functions of the court is, by its character, so futile that it ought to be dismissed for that reason alone; but it is enough to say that the ruie that bills of this sort will not be tolerated is so fundamental, and so necessary to the full exercise of judicial functions, that the reasons on which it rests need not be further stated.” To like effect may be cited In re Forsyth (D. C.) 78 F. 296; United States v. Eisenbeis et al. (D. C.) 88 F. 4, and Martin Co. v. Shannonhouse (D. C.) 203 F. 517. In 5 Pomeroy Eq. Jur., 2d Ed. 1919, § 2304 (881), it is stated that: “Money in custodia legis, iu the hands of a clerk of court in his official capacity, cannot be made the subject of a creditors’ bill.” Upon authority, therefore, as well as upon principle, we are satisfied that, in the absence of federal statutory authorization, this fund, in the registry of the District Court, and under its control, could not be subjected to seizure on behalf of creditors of the owner. The District Court properly dismissed the creditors’ hill as to'Clerk Bates, and its decree is 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_timely	D	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the trial court level. These issues are only considered to be present if the court of appeals is reviewing whether or not the litigants should properly have been allowed to get a trial court decision on the merits. That is, the issue is whether or not the issue crossed properly the threshhold to get on the district court agenda. The issue is: "Did the court conclude that it could not reach the merits of the case because the litigants had not complied with some rule relating to timeliness, a filing fee, or because a statute of limitations had expired?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". Willa Dean WHETSTONE, Appellant, v. The ORION INSURANCE COMPANY, Limited, and Lloyd’s, London, Appellees. No. 6827. United States Court of Appeals Tenth Circuit. March 20, 1962. Gus Rinehart, Oklahoma City, Okl. (Richard E. Romang, Enid, Okl., on brief), for appellant. Clayton B. Pierce, Oklahoma City, Okl., for appellees. Before Murrah, Chief Judge, and BRATTON and BREITENSTEIN, Circuit Judges. MURRAH, Chief Judge. This appeal is from the dismissal of a garnishment proceeding brought to recover the unpaid balance of a judgment. Appellant had obtained the judgment against one John Bennett for damages resulting from an automobile accident. Bennett was employed as a land man by the McAlester Fuel Company and appellees are the insurers of McAlester under a general liability policy bearing an endorsement indemnifying such Company and its employees “when * * * liability is incurred by reason of, or in connection with, the assured’s operations.” McAlester furnished Bennett an automobile to use in the performance of his company duties, and allowed its use on personal trips under an arrangement whereby Bennett reimbursed the Company at the rate of per mile. The record shows that Bennett left his place of employment in Midland, Texas and drove, with his family, to Roswell, New Mexico, where he transacted company business. He then drove, with his family, to Enid, Oklahoma to visit his wife’s relatives. On the return trip to Midland, the accident giving rise to the judgment occurred. Appellant contends that Bennett was traveling “in connection with” the operations of McAlester at the time of the accident. Appellees contend that the terms “by reason of” and “in connection with,” as used in the contract, are synonomous and that a causal connection between the work or business of McAlester and the act of the employee which created his liability is necessary to bring that act within the coverage of the policy. The first portion of the endorsement in question insured McAlester and its employees and agents “ * * * for any and all sums which (they) shall be legally liable to pay * * * by reason of the assured’s operations.” Clearly, this language required that the insurer respond only to liability incurred by its employees or agents in the course of their employment—i. e., while performing some function within the scope of their agency relationship. The remaining portion of the endorsement, however, restates the coverage when liability is incurred “by reason of * * * the assured’s operations” and alternatively provides that the same coverage shall obtain when liability results “in connection with” the assured’s operations. The law will not presume that the parties used tautological words to express their contract. Rather, it will presume that every word has a distinct meaning and purpose within the context in which it is found. See Utex Exploration Co. v. Garwood (10 C.A.) 246 F.2d 547, 550; First National Insurance Co. of America v. Norton (10 C.A.) 238 F.2d 949; Basler v. Warren (10 C.A.) 159 F.2d 41, 43. The words “by reason of or in connection with” were obviously used as words of art to delineate coverage under the insurance contract. Clearly, these terms were not intended to be used synonomously. Rather, we think the term “in connection with” was intended to provide coverage in addition to that already stated in the contract. This additional coverage would seem to apply not only to acts within the doctrine of respondeat superior, but to acts which are in any way connected with the operations of the employer. It is not conditioned on the exercise of an agency relationship, nor does it require that the employee be acting within the scope of his employment. Had such been the intent, it would have been a simple matter to so state. Here, the business purposes of Bennett’s trip undoubtedly ceased at Roswell. Even so, the record shows that it was within Bennett’s personal discretion to perform additional work for McAlester during the entire trip if he thought it advisable, and he was subject to call at any time. Indeed, he had left word where he might be reached during the trip. In addition, he carried a briefcase containing notes about company business and he was required to return the automobile to Midland, Texas. Each of these factors are tangibly associated and related to the “operations” of Mc-Alester and although merely incidental to Bennett’s return trip from Enid, they were sufficiently “connected” to McAlester’s operations to satisfy the plain terms of the endorsed coverage and to render Bennett an “assured” within the meaning of the policy. Reversed and remanded for further proceedings not inconsistent with this opinion. Question: Did the court conclude that it could not reach the merits of the case because the litigants had not complied with some rule relating to timeliness, a filing fee, or because a statute of limitations had expired? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_appel1_3_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 first listed appellant. The nature of this litigant falls into the category "federal government (including DC)", specifically "other, not listed, not able to classify". Your task is to determine which specific federal government agency best describes this litigant. BALLOU CONSTRUCTION COMPANY, INC., as Transferee of Salina Sand Company, Inc., Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant. No. 81-2155. United States Court of Appeals, Tenth Circuit. April 29, 1983. Before SETH, Chief Judge, and LOGAN and SEYMOUR, Circuit Judges. ORDER AND JUDGMENT In accordance with 10th Cir.R. 9(e) and Fed.R.App.P. 34(a), this appeal came on for consideration on the briefs and record on appeal. The judgment of the United States District Court for the District of Kansas, 526 F.Supp. 403, is vacated and the matter remanded for further consideration in light of the Supreme Court’s decision in United States v. Bliss Dairy, Inc.,-U.S.--, 103 S.Ct. 1134, 75 L.Ed.2d 130 (1983). The mandate shall issue forthwith. Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "federal government (including DC)", specifically "other, not listed, not able to classify". Which specific federal government agency best describes this litigant? A. United States - in corporate capacity (i.e., as representative of "the people") - in criminal cases B. United States - in corporate capacity - civil cases C. special wartime agency D. Other unlisted federal agency (includes the President of the US) E. Unclear or nature not ascertainable 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. COMMUNITY TELEVISION OF SOUTHERN CALIFORNIA v. GOTTFRIED et al. No. 81-298. Argued October 12, 1982 Decided February 22, 1983 Stevens, J., delivered the opinion of the Court, in which BURGER, C. J., and White, Blackmun, Powell, Rehnquist, and O’Connor, JJ., joined. Marshall, J., filed a dissenting opinion, in which Brennan, J., joined, post, p. 513. Edgar F. Czarra, Jr., argued the cause for petitioner in No. 81-298. With him on the briefs were Mark D. Nozette and Richard A. Meserve. Samuel A. Alito, Jr., argued the cause for petitioner in No. 81-799. With him on the briefs were Solicitor General Lee, Deputy Solicitor General Shapiro, Stephen A. Sharp, and C. Grey Pash, Jr. Charles M. Firestone argued the cause for respondents Gottfried et al. in both cases. With him on the brief were Abraham Gottfried and Stanley Fleishman. J. Roger Wollenberg, Timothy B. Dyk, Ralph E. Goldberg, and Eleanor S. Applewhaite filed a brief for CBS Inc., respondent under this Court’s Rule 19.6. Together with No. 81-799, Federal Communications Commission v. Gottfried et al., also on certiorari to the same court. Harry R. Sheppard filed a brief for Deaf Counseling, Advocacy and Referral Agency, Inc., et al. as amici curiae urging affirmance. Justice Stevens delivered the opinion of the Court. The question presented is whether § 504 of the Rehabilitation Act of 1973 requires the Federal Communications Commission to review a public television station’s license renewal application under a different standard than it applies to a commercial licensee’s renewal application. Contrary to the holding of the Court of Appeals for the District of Columbia Circuit, 210 U. S. App. D. C. 184, 655 F. 2d 297 (1981), we conclude that it does not. I On October 28, 1977, respondent Sue Gottfried filed a formal petition with the Federal Communications Commission requesting it to deny renewal of the television license of station KCET-TV in Los Angeles. She advanced two principal grounds for denial: First, that the licensee had failed to discharge its obligation to ascertain the problems, needs, and interests of the deaf and hearing-impaired population within its service area; and second, that the licensee had violated, and remained in violation of, § 504 of the Rehabilitation Act. Correspondence attached to Gottfried’s petition included complaints about KCET-TV’s failure to carry enough programming with special captioning or other aids to benefit the hearing-impaired members of the audience. The exhibits emphasized the station’s failure to broadcast the ABC evening news in captioned form prior to May 23, 1977, and its subsequent failure to broadcast the captioned program during prime time. In a verified opposition to the petition, the licensee recounted in some detail its efforts to ascertain the problems of the community it served, including the deaf and the hearing impaired, by a community leader survey and by a general public survey. App. in No. 79-1722 (CADC), pp. 102-105. The licensee also described its programming efforts to respond to the special needs of the hearing impaired, and explained why its two daily broadcasts of the ABC captioned news had usually been scheduled for 11:30 p. m. and 6:30 a. m. The licensee specifically denied that it had violated § 504 and averred that the Commission is not an appropriate forum for the adjudication of Rehabilitation Act claims. Id., at 113. On December 22, 1977, Gottfried filed a verified response, criticizing the station’s public survey, and commenting further on the station’s failure to rebroadcast ABC captioned news programs before May 23, 1977. The response renewed the charge that the station had violated § 504, and asserted that the Federal Communications Commission was indeed the proper forum to evaluate that charge. Gottfried also filed separate formal objections to the renewal of seven commercial television station licenses in the Los Angeles area. E. g., id,., at 199. The Commission consolidated all eight proceedings and ruled on Gottfried’s objections in a single memorandum opinion adopted on August 8, 1978. 69 F. C. C. 2d 451. The Commission first reviewed its own efforts to encourage the industry to serve the needs of the hearing impaired. In 1970, the Commission had issued a Public Notice to all licensees, advising them of the special needs of the deaf in responding to emergency situations as well as in appreciating general television programming. In 1972, the Commission had granted authority to the Public Broadcasting System to begin experimentation with a “closed” captioning system, which would enable hearing-impaired persons with specially equipped television sets to receive captioned information that could not be seen by the remainder of the viewing audience. In 1976, the Commission had adopted a rule requiring television licensees to broadcast emergency information visually. In that year, however, the Commission had also concluded that there were so many unanswered questions — both technical and financial — concerning the most effective means of improving television service for the hearing impaired, that it remained “the responsibility of each licensee to determine how it [could] most effectively meet those needs.” The Commission summarized its views concerning mandated forms of technology by noting that “there is no requirement that any television licensee — commercial or noncommercial— provide open or closed captioning or any other form of special visual program material other than for broadcasting emergency information.” Id., at 455. The Commission then turned to Gottfried’s objections to the eight license renewals. It approached the question whether the renewals would serve the public interest, convenience, and necessity from three different perspectives: ascertainment, programming, and § 504 of the Rehabilitation Act. It first found that the licensees’ efforts to ascertain the special needs of the community were adequate. Next, it held that the facts alleged by Gottfried did not give rise to a substantial and material question whether any of the eight stations had abused its discretion in its selection of programming matter. The Commission explained that it is more difficult to provide special programming for the hearing impaired than for other segments of the community; in the absence of any Commission requirement for specialized programming techniques, it found “no basis to fault a licensee for failure to provide these options for the deaf and hearing impaired in the station service area.” Id., at 458. The Commission held that § 504 of the Rehabilitation Act had no application to the seven commercial licensees because they were not alleged to have received any federal financial assistance. The Commission agreed that KCET-TV might be governed by § 504, and that a violation of the Act would need to be considered in a license renewal proceeding, but it saw no reason to consider § 504 in the absence of an adverse finding by the Department of Health, Education, and Welfare — “the proper governmental agency to consider such matters.” Id., at 459. On May 29,1979, the Commission adopted a second memorandum opinion and order denying Gottfried’s petition for reconsideration. 72 F. C. C. 2d 273. The Commission again reviewed Gottfried’s §504 charge and again concluded that the Rehabilitation Act does not apply to commercial stations and that the allegations against KCET-TV under that Act were premature unless and until the agency with authority to enforce compliance determined that the station had violated its provisions. The Commission also rejected Gottfried’s additional argument that it had a duty to adopt regulations to implement §504. Finally, the Commission refused to hold that either its omission of a rule requiring “captioning or other techniques to enable the deaf and hearing impaired to have full access to television broadcasts,” or the failure of the licensees to provide such services, was a violation of the “public interest” standard embodied in § 309 of the Communications Act of 1934, as amended. The Commission held: “We find no error and nothing inconsistent in concluding that licensees are serving the public interest although they are not currently providing captioning, in view of the fact that we have not required licensees to undertake such an activity. Furthermore, to judge a licensee’s qualifications on the basis of the retroactive application of such a requirement would, in our opinion, raise serious questions of fundamental fairness. Thus, there is no inconsistency or error in our finding that the subject licensees had met their public interest burden even though they did not caption their programming.” Id., at 279. Gottfried appealed the decision of the Commission to the Court of Appeals for the District of Columbia Circuit, pursuant to 47 U. S. C. § 402. The Court of Appeals affirmed the portion of the Commission’s order that related to the commercial stations but vacated the renewal of the KCET-TV license and remanded for further proceedings. 210 U. S. App. D. C. 184, 655 F. 2d 297 (1981). The court held that Congress did not intend the Commission’s renewal of a broadcast license to be considered a form of “financial assistance” within the meaning of §504 and therefore that the Rehabilitation Act did not directly apply to the seven commercial stations. The court was persuaded, however, that the Act reflected a national policy of extending increased opportunities to the hearing impaired and that commercial stations must therefore make some accommodation for the hard of hearing, given the Communications Act’s general requirement that licensees serve the “public interest, convenience, and necessity.” 47 U. S. C. §§307(d), 309(a), 309(d). In the absence of a more specific statutory directive than that contained in the public interest standard, however, the court accepted the Commission’s judgment that the commercial licenses should be renewed. “Recognizing that the Commission possesses special competence in weighing the factors of technological feasibility and economic viability that the concept of the public interest must embrace, we defer today to its judgment.” 210 U. S. App. D. C., at 202-203, 655 F. 2d, at 315-316 (footnote omitted). The majority of the Court of Appeals reached a different conclusion with respect to KCET-TV. As a recipient of federal financial assistance, the public station was admittedly under a duty to comply with § 504. The Court of Appeals did not hold that KCET-TV had violated § 504, or that its efforts to provide programming for the hearing impaired were less satisfactory than the efforts of the commercial licensees; nevertheless, it held that a stricter “public interest” standard should be applied to a licensee covered by § 504 than to a commercial licensee. Its narrow holding was that the Commission could not find the service of public stations “to be adequate to justify renewal without at least inquiring specifically into their efforts to meet the programming needs of the hearing impaired.” Id., at 188, 655 F. 2d, at 301. Judge McGowan dissented in part. He agreed with the majority’s view concerning commercial stations that rule-making would be “a better, fairer, and more effective vehicle for considering how the broadcast industry is required to provide the enjoyment and educational benefits of television to persons with impaired hearing,” id., at 188, 203, 655 F. 2d, at 301, 316, than case-by-case adjudication in license renewal proceedings. He felt, however, that the same standard should be applied to public stations until regulations had been issued by the Department of Education dealing specifically with the rights of access of the hearing impaired to television programs. Judge McGowan stated; “[F]orm is favored over substance when commercial stations are, for this reason, spared the expense and uncertainty of renewal hearings, and a noncommercial station is not. Neither, on the record before us, had advance notice during their expired license terms of what was, and therefore could reasonably be, expected of them with respect to the wholly laudable, but technically complex, objective of providing access for the hearing impaired.” Id., at 204, 655 F. 2d, at 317. Both the Commission and the licensee petitioned for certio-rari. Because of the serious implications of the Court of Appeals’ holding on the status of licenses of public broadcasting stations, we granted both petitions. 454 U. S. 1141 (1982). II All parties agree that the public interest would be served by making television broadcasting more available and more understandable to the substantial portion of our population that is handicapped by impaired hearing. The Commission recognized this component of the public interest even before the enactment of the Rehabilitation Act of 1973, see The Use of Telecasts to Inform and Alert Viewers with Impaired Hearing, 26 F. C. C. 2d 917 (1970), and that statute confirms the federal interest in developing the opportunities for all individuals with handicaps to live full and independent lives. No party suggests that a licensee, whether commercial or public, may simply ignore the needs of the hearing impaired in discharging its responsibilities to the community which it serves. We are not persuaded, however, that Congress intended the Rehabilitation Act of 1973 to impose any new enforcement obligation on the Federal Communications Commission. As originally enacted, the Act did not expressly allocate enforcement responsibility. See Pub. L. 93-112, Tit. V, §504, 87 Stat. 394. Nevertheless, since §504 was patterned after Title VI of the Civil Rights Act of 1964, it was understood that responsibility for enforcing it, insofar as it regulated private recipients of federal funds, would lie with those agencies administering the federal financial assistance programs. See S. Rep. No. 93-1297, pp. 39-40 (1974). When the Act was amended in 1978, that understanding was made explicit. See Pub. L. 95-602, Tit. I, §119, 92 Stat. 2982; n. 1, swpra. It is clear that the Commission is not a funding agency and has never been thought to have responsibility for enforcing §504. Furthermore, there is not a word in the legislative history of the Act suggesting that it was intended to alter the Commission’s standard for reviewing the programming decisions of public television licensees. If a licensee should be found guilty of violating the Rehabilitation Act, or indeed of violating any other federal statute, the Commission would certainly be obligated to consider the possible relevance of such a violation in determining whether or not to renew the lawbreaker’s license. But in the absence of a direction in the Rehabilitation Act itself, and without any expression of such intent in the legislative history, we are unwilling to assume that Congress has instructed the Federal Communications Commission to take original jurisdiction over the processing of charges that its regulatees have violated that Act. The fact that a public television station has a duty to comply with the Rehabilitation Act does not support the quite different conclusion that the Commission must evaluate a public station’s service to the handicapped community by a more stringent standard than that applicable to commercial stations. The interest in having all television stations — public and commercial — consider and serve their handicapped viewers is equally strong. By the same token, it is equally unfair to criticize a licensee — whether public or commercial— for failing to comply with a requirement of which it had no notice. As both the majority and the dissenting judge in the Court of Appeals observed, rulemaking is generally a “better, fairer, and more effective” method of implementing a new industrywide policy than is the uneven application of conditions in isolated license renewal proceedings. That observation should be as determinative in relicensing a public station as it is in relicensing a commercial station. A federal agency providing financial assistance to a public television station may, of course, attach conditions to its subsidy that will have the effect of subjecting such a licensee to more stringent requirements than must be met by a commercial licensee. Or regulations may be promulgated under the Rehabilitation Act that impose special obligations on the subsidized licensee. Conceivably, the Federal Communications Commission might determine that the policies underlying the Communications Act require extraordinary efforts to make certain types of programming universally accessible, thereby placing heightened responsibility on certain stations. But unless and until such a differential standard has been promulgated, the Federal Communications Commission does not abuse its discretion in interpreting the public interest standard, see FCC v. WNCN Listeners Guild, 450 U. S. 582 (1981), when it declines to impose a greater obligation to provide special programming for the hearing impaired on a public licensee than on a commercial licensee. The Court of Appeals was unanimous in its holding that the renewal of the seven commercial licensees was consistent with the public interest requirement in § 309 of the Federal Communications Act. Neither that court nor the Commission suggested that there was anything in the record that would justify treating the public licensee differently from the commercial licensees if both classes were to be judged under the same standard. The Court of Appeals’ affirmance of the Commission’s rejection of Gottfried’s objection to the renewal of the commercial licenses therefore requires a like disposition of the objections to the renewal of the KCET-TV license. Accordingly, the judgment of the Court of Appeals is reversed insofar as it vacated the order of the Commission. It is so ordered. Section 504 of the Rehabilitation Act of 1973, 87 Stat. 394, as amended, and as set forth in 29 U. S. C. § 794 (1976 ed., Supp. V), provides: “§ 794. Nondiscrimination under Federal grants and programs; promulgation of rules and regulations “No otherwise qualified handicapped individual in the United States, as defined in section 706(7) of this title, shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service. The head of each such agency shall promulgate such regulations as may be necessary to carry out the amendments to this section made by the Rehabilitation, Comprehensive Services, and Developmental Disabilities Act of 1978. Copies of any proposed regulation shall be submitted to appropriate authorizing committees of the Congress, and such regulation may take effect no earlier than the thirtieth day after the date on which such regulation is so submitted to such committees.” In her petition, Gottfried alleged, in part: “That the Licensee has violated, and remains in violation of Section 504 of the Rehabilitation Act of 1973, and the regulations promulgated thereunder, in that the Licensee has received and is receiving Federal financial assistance and has discriminated and is discriminating against the Petitioners ‘solely by reason of [their] handicap’, and said Petitioners have been and are ‘excluded from participation in [and have been and are denied] the benefits of, [and have been and are being] subjected to discrimination’ under the television services in connection with which Licensee has been and is receiving Federal financial assistance.” App. in No. 79-1722 (CADC), p. 26 (brackets in original). “Captioning” refers to any of several technologies, see Captioning for the Deaf, 63 F. C. C. 2d 378 (1976), that project written text onto a television image so that deaf viewers receive information that is communicated to others by the soundtrack. See also n. 8, infra. “Contrary to Petitioners’ unsupported charges (Petition, p. 3), KCET has responded to the needs of deaf and hearing-impaired persons in its service area. It has done so with three different types of programming: (a) Captioned ABC Evening News; (b) a variety of other programs, including children’s programs, which were captioned or signed so as to be understandable to the deaf and hearing-impaired; and (c) special programs which have directly addressed needs and concerns of the deaf and hearing-impaired. “Over the past three years, KCET has presented more than 960 programs which were either captioned, signed or, in rare instances, which had no spoken words in them at all. All of these programs were understandable to the deaf and hearing-impaired. In many instances, KCET has promoted these programs by listing them as designed for the hearing-impaired audience. During the past three years, in addition to ABC Captioned News, these broadcasts have included such programs as ‘Zoom’, ‘Once Upon a Classic’, ‘Nova’, films of Ingmar Bergman, ‘The Tribal Eye’, ‘Masterpiece Theatre’, ‘Adams Chronicles’, ‘President Carter’s Clinton, Massachusetts Town Meeting', and many others. “In addition to programs designed to be understood by the deaf and hearing-impaired, KCET has devoted several special programs to substantive issues affecting those groups.” App. in No. 79-1722 (CADC), pp. 106, 109. The response stated: “[T]he station has not been responsive to the needs of the deaf and hearing impaired. In the station’s viewing area, the deaf 20% of the population are not getting 20% of broadcast time; they were not even getting what other deaf in other viewing areas were receiving.” Id., at 148. The response continued: “The Commission is a proper forum for the adjudication of claims of discrimination in broadcasting, as it is the Commission’s obligation — even apart from the Act — to determine how the station has discharged its public trust obligations. The Act and the regulations thereunder, merely give further statutory and regulatory emphasis to that which the Commission is already charged to do under the law.” Id., at 150. The Use of Telecasts to Inform and Alert Viewers with Impaired Hearing, 26 F. C. C. 2d 917 (1970). The Commission described the effect of its 1970 action as follows: “[I]t was suggested that television stations could make use of visual as well as oral announcements of emergencies, utilize the fac[e] of newscasters wherever possible so as to permit lip reading, and feature visualization of materials in news, weather, and sports programs. The Commission hoped that the notice would alert licensees to our concern for the needs of the hearing impaired citizen and make television a truly valuable medium for that segment of the population — estimated by the Department of Health, Education, and Welfare to include 13.4 million persons. We observed, however, that ‘it may be necessary to begin rule making looking toward the adoption of minimum requirements.’” 69 F. C. C. 2d, at 454. “Through the use of an encoder at the transmitting end and a decoder at the receiving end, this closed captioning system could supply visual information — captioning—of the aural portion of the television program to those hearing impaired persons whose television sets were equipped to receive the captioned information while the rest of the viewing public would receive the normal visual and aural transmission. This differs from ‘open’ captioning utilized, for example, by PBS in its rebroadcast of the ABC Evening News. Open captioning is transmitted to all viewers who see a printed display of the text of the aural transmission at the bottom of the visual transmission.” Ibid. Captioning for the Deaf, 63 F. C. C 2d, at 389. “Generally speaking, [special programming for other segments of the community] can be achieved without any additional production techniques other than those utilized for regular programming. Obviously, that is not the situation confronting a licensee who might wish to program for the aurally handicapped. For such programming to be effective, it must offer some specific form of visual communication: sign language interpretations, captioning, or extensive utilization of charts, signs, and facial closeups to permit lip reading. Even sign language and lip reading efforts, according to Gottfried, serve to limit the number of deaf and hearing impaired since many do not effectively understand these methods.” 69 F. C. C. 2d, at 458. Judge McGowan pointed out that on January 19,1981, the Department of Education had issued a notice of intent to develop such regulations, and invited comments by March 5,1981. 210 U. S. App. D. C., at 204, 655 F. 2d, at 317. See 46 Fed. Reg. 4954. “Estimates of the number of citizens who have impaired hearing and therefore have need for the receipt of news and entertainment material through appropriate television programming range from 8.5 million to 20 million. Many of these persons, it appears, live alone and oftentimes do not receive important new information unless advised by neighbors or friends.” The Use of Telecasts to Inform and Alert Viewers with Impaired Hearing, 26 F. C. C. 2d 917 (1970). As the Commission has observed: “In the fulfillment of his obligation the broadcaster should consider the tastes, needs and desires of the public he is licensed to serve .... He should reasonably attempt to meet all such needs and interests on an equitable basis.” Report and Statement on Policy Re: Commission’s En Banc Programming Inquiry, 25 Fed. Reg. 7291, 7295 (1960). Accord, In re Applications of Alabama Educational Television Comm’n, 50 F. C. C. 2d 461, 472 (1975); In re Applications of Capitol Broadcasting Co., 38 F. C. C. 1135, 1139 (1965). If such an enforcement obligation existed, it would have to derive from the Rehabilitation Act itself, since the general words “public interest” in the Communications Act are not sufficient to create it. In McLean Trucking Co. v. United States, 321 U. S. 67 (1944), we observed that an agency charged with promoting the “public interest” in a particular substantive area may not simply “ignore” the policies underlying other federal statutes. Id., at 80. But we also emphasized that such an agency is not auto-. matically given “either the duty or the authority to execute numerous other laws.” Id., at 79. Thus, in McLean Trucking the Interstate Commerce Commission had an administrative duty to consider the effect of a motor carrier merger on competing motor carriers in determining whether the merger would effectuate overall transportation policy, id., at 87, yet was “not to measure proposals for all-rail or all-motor consolidations by the standards of the anti-trust laws,” id., at 85. Here, the FCC has an administrative duty to consider the needs of handicapped citizens in determining whether a license renewal would effectuate the policies behind the Communications Act but is by no means required to measure proposals for public television license renewals by the standards of § 504 of the Rehabilitation Act. In 1976, the President designated the Department of Health, Education, and Welfare as the agency responsible for coordinating the implementation of § 504. See Exec. Order No. 11914, 3 CFR 117 (1977). In 1980 that Executive Order was revoked and replaced by Exec. Order No. 12250, 3 CFR 298 (1981), which transferred the coordination and enforcement of authority for § 504 from HEW to the Department of Justice. Regulations previously adopted by HEW remain in effect pending the adoption of new regulations by the Department of Justice. See 28 CFR pt. 41 (1982). The Commission has explained its policy as follows: “Normally, we have declined to explore matters currently being litigated before the courts or to duplicate the ongoing investigative efforts of other government agencies charged with the responsibility of interpreting and enforcing the laws in question. Our restraint in this respect has not been predicated upon the unlikelihood of proving the violation of law. Indeed, conduct which does not contravene law may still run afoul of the public interest standard. ... By our forbearance we have sought to maintain a proper working relationship with the judiciary and other governmental agencies and to avoid burdening applicants with unnecessary, costly multiple proceedings.” FCC Form 803, 59 F. C. C. 2d 750, 763 (1976). This is not to say that the Commission may permit a licensee to ignore the needs of particular groups within the viewing public. The point is that the Commission’s duties derive from the Communications Act, not from other federal statutes. In NAACP v. FPC, 425 U. S. 662, 670, n. 7 (1976), for example, this Court noted that the Commission’s equal opportunity regulations could be regarded as “necessary ... to ensure that its licensees’ programming fairly reflects the tastes and viewpoints of minority groups.” We then reiterated, however, that an agency’s general duty to enforce the public interest does not require it to assume responsibility for enforcing legislation that is not directed at the agency: “It is useful again to draw on the analogy of federal labor law. No less than in the federal legislation defining the national interest in ending employment discrimination, Congress in its earlier labor legislation unmistakably defined the national interest in free collective bargaining. Yet it could hardly be supposed that in directing the Federal Power Commission to be guided by the ‘public interest,’ Congress thereby instructed it to take original jurisdiction over the processing of charges of unfair labor practices on the part of its regulatees.” Id., at 671. We have previously emphasized the desirability of making changes in licensing policies prospective. In FCC v. National Citizens Committee for Broadcasting, 436 U. S. 775, 811 (1978), we wrote: “One of the most significant advantages of the administrative process is its ability to adapt to new circumstances in a flexible manner, see FCC v. Pottsville Broadcasting Co., 309 U. S., at 137-138, and we are unwilling to presume that the Commission acts unreasonably when it decides to try out a change in licensing policy primarily on a prospective basis.” We note the Commission’s argument that, if a differential standard were appropriate, commercial stations would be better able to afford the costs associated with special programming than public television stations, which cannot sell advertising and which serve the public in large part by airing programs of specialized interest that lack the mass appeal required for broadcast on network affiliates. Question: What 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_civproc1	0	What follows is an opinion from a United States Court of Appeals. Your task is to identify the most frequently cited federal rule of civil procedure in the headnotes to this case. Answer "0" if no federal rules of civil procedure are cited. For ties, code the first rule cited. Robert G. COX, Appellant, v. UNITED STATES of America, Appellee. No. 17033. United States Court of Appeals Eighth Circuit. Nov. 5, 1962. Robert G. Cox, appellant, pro se. F. Russell Millin, U. S. Atty., Kansas City, Mo., and John Harry Wiggins, Asst. U. S. Atty., Kansas City, Mo., for appel-lee. Before VOGEL and VAN OOSTER-HOUT, Circuit Judges, and VAN PELT, District Judge. VAN PELT, District Judge. This case, brought under Title 28 U.S. C.A. § 2255,- raises the claim that appellant, who appears pro se, is being unlawfully incarcerated. Appellant asks the vacation and reversal of the conviction under which sentence was imposed. Appellant Cox and five others were indicted upon three counts in the Western District of Missouri. Following a trial and conviction, Cox appealed to this court. The affirmance is reported as Cox v. United States, 8 Cir., 284 F.2d 704. The opinion sets forth the contents of the indictment, a brief recital as to the evidence, and fully discusses the claimed errors. Thereafter, a motion to vacate and set aside judgment and sentence was filed which began the proceedings now in this court. Appellant claimed in the trial court that: 1) during the original trial testimony was received in the judge’s chambers in his absence; and 2) the trial judge was aware before the verdict was reached of the contents of a probation report relating to appellant’s prior criminal record and his so-called “ill name among his neighbors,” in violation of his rights under Rule 32 (c) of the Federal Rules of Criminal Procedure. In this court he claims violation of his constitutional rights under both the Fifth and Sixth Amendments to the Constitution, by the trial judge’s receipt of testimony of government witnesses and a co-defendant in the court’s chambers in his absence. Appellant alleges that he was denied permission to go into the court’s chambers in violation of Rule 43, Federal Rules of Criminal Procedure. With reference to the second point he now claims that the trial judge was so prejudiced that a fair trial with due process of law was impossible and that the trial judge had been his “bitter enemy” for the last sixteen years. The trial court denied relief. We affirm. The transcript of the testimony at the trial shows that on the first afternoon, after an objection by appellant’s counsel that the government counsel was trying to impeach a government witness, the court announced a ten minute recess. The presiding judge then said: “Come into chambers, gentlemen.” The official transcript then recites : “(Whereupon, the following proceedings were had in court chambers, out of the presence and hearing of the jury:)”. The trial judge then asked the Assistant United States Attorney what he was trying to do and whether he was surprised. Upon hearing the answer he then asked the attorney to read into the record the grand jury testimony to which he was referring. The questions and answers read are set forth in the transcript as is the objection of counsel for appellant Cox, the objection being: “My only objection was that he is impeaching his own witness.” This objection was overruled. This was assigned as error and is discussed in this court's prior opinion in this case. Objection was not made at any time that the appellant Cox was not present. Error was not assigned in the former appeal raising the objection that the appellant Cox had not been present. The record nowhere gives support for appellant’s contention that he was denied the right to be present. It does not appear that he asked to be present. It is clear from reading the record that this was a conference with the attorneys and was not a part of the actual trial before the jury. It was held at the Court’s invitation to permit the trial judge to find out what government counsel was trying to do by his questioning, and, as it developed, to acquaint the trial judge with the nature of the testimony the government intended to offer. After returning to the courtroom, in the presence of the appellant and the jury, the questions and answers read to the court in chambers, were read. The recess and the proceeding in chambers were to protect the rights of the appellant Cox by not allowing a witness to be questioned in the jury’s presence about matters which did not affect his testimony and which did not refresh his recollection. Such conferences are usual trial court procedure. Frequently, a trial judge will ask for an exhibit such as the grand jury transcript, take it to his chambers and alone and out of the presence of counsel, will read it and prepare for a ruling. The proceeding here was no different except that the judge had counsel present and instead of reading the transcript himself had counsel read it. As stated, the record does not bear out appellant’s claim that he was denied the right to be present. No request to be present is shown and objection was not made as to his absence when the trial resumed. He was not deprived of any of his rights in the trial before the jury. This court, in Glouser v. United States, 296 F.2d 853, had before it in a Section 2255 appeal, a claimed violation of Rule 43, Federal Rules of Criminal Procedure, and held that the right to be present could be waived and further that the test “under a § 2255 proceeding is whether the appellant was deprived of the substance of a fair trial.” We conclude that the proceedings which occurred in chambers were not in the nature of a trial at which, under Rule 43, the defendant is entitled to be present. It is not unusual for a judge to call counsel into chambers and discuss matters of evidence, the form of questions, instructions proposed, and other matters looking to a more orderly trial, without having a defendant present. Appellant’s help was not needed by the judge in order to make a ruling. His presence could hinder an orderly discussion. This conference was not a part of the trial within the meaning of Rule 43. We hold that appellant was not deprived of the substance of a fair trial in the holding of this conference in his absence. Other courts have reached similar conclusions. In Snyder v. Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674, the United States Supreme Court held, Mr. Justice Cardozo speaking for the G'ourt, that the defendant in a murder trial was not assured, under the Fourteenth Amendment, the right to be present when the jury inspected the scene of the alleged crime. This was true even though at the view “the essential features may be pointed out by the counsel.” It was there said: “ * * * The Fourteenth Amendment has not said in so many words that he must be present every second or minute or even every hour of the trial. If words so inflexible are to be taken as implied, it is only because they are put there by a court, and not because they are there already, in advance of the decision. Due process of law requires that the proceedings shall be fair, but fairness is a relative, not an absolute concept. It is fairness with reference to particular conditions or particular results. ‘The due process clause does not impose upon the States a duty to establish ideal systems for the administration of justice, with every modern improvement and with provision against every possible hardship that may befall.’ Ownbey v. Morgan, [256 U.S. 94] supra, p. 110 [41 S.Ct. 433, 65 L.Ed. 837], What is fair in one set of circumstances may be an act of tyranny in others. This court has not yet held that even upon a trial in court the absence of a defendant for a few moments while formal documents are marked in evidence will vitiate a judgment. * Cf. Commonwealth v. Kelly, 292 Pa. 418, 141 Atl. 246.” 291 U.S. at pages 116, 117, 54 S.Ct. at page 336. The footnote which appears at this point refers to two cases relied upon by appellant, namely, Hopt v. Utah, 110 U.S. 574, 4 S.Ct. 202, 28 L.Ed. 262, and Lewis v. United States, 146 U.S. 370, 13 S.Ct. 136, 36 L.Ed. 1011 as follows: “"What was said in Hopt v. Utah, supra, and Schwab v. Berggren, supra [143 U.S. 442, 12 S.Ct. 525, 36 L.Ed. 218] on the subject of the presence of a defendant was dictum, and no more. See this opinion, ante, p. 106 [54 S.Ct. 332, 78 L.Ed. 678]. We may say the same of Lewis v. United States, supra, with the added observation that it deals with the rule at common law and not with constitutional restraints.” The Snyder case was followed by Johnson v. United States, 318 U.S. 189, 201, 63 S.Ct. 549, 555, 87 L.Ed. 704, where Mr. Justice Douglas, speaking for the Court, stated: “It is claimed that the expulsion of petitioner from the court room while counsel were arguing the question of the propriety of the cross-examination on his 1938 income deprived him of his right to be present during the trial. Cf. Snyder v. Massachusetts, 291 U.S. 97 [54 S.Ct. 330, 78 L.Ed. 674]. It is also urged that petitioner was denied the advice of counsel in that the court directed that when he resumed the stand he do so without having an opportunity to confer with his counsel about claiming the privilege. But there is a simple answer to these objections. Not only were no exceptions taken to these rulings; it also appears that they did not result in a loss of the privilege which the court had indicated it would recognize.” There is no difference of substance between objections relating to the propriety of cross-examination, and objections dealing with the propriety of impeachment or refreshment of recollection, so far as the right of a defendant to be present is concerned. The Court of Appeals for the Tenth Circuit has said: “The final question is whether conferences of the court and counsel on questions of law at the bench or in chambers, out of hearing of the appellant and the jury, denied appellant his constitutional right to be present at every stage of the trial. In the first place, neither appellant nor his counsel made a specific request for appellant to be present at these conferences, and no complaint or objection was lodged to the practice. He therefore cannot complain of any possible prejudice. Steiner v. United States, 5 Cir., 134 F.2d 931, certiorari denied 319 U.S. 774, 63 S.Ct. 1439, 87 L.Ed. 1721. Moreover, it is settled law that the exclusion of a defendant and a jury from the courtroom .during argument on a question of law does not violate defendant’s constitutional right to be present at every step of the proceedings. United States v. Johnson, 3 Cir., 129 F.2d 954, 144 A.L.R. 182, affirmed on other grounds, 318 U.S. 189, 63 S.Ct. 549, 87 L.Ed. 704.” Deschenes v. United States, 10 Cir., 224 F.2d 688, 693. The Court of Appeals for the Fourth Circuit discussed the right of the defendant to be present at all steps of the trial in Parker v. United States, 184 F.2d 488, 490, and said: « * * * The right to be pi'esent at all stages of the trial is no more sacred than the right to be confronted by accusing witnesses or to have a common law jury of twelve try the case; and there can be no question but that these may be waived. Grove v. United States, 4 Cir., 3 F.2d 965; Eury v. Huff, 4 Cir., 141 F.2d 554. Proceeding with the trial without objection and with full knowledge of the facts constitutes such waiver as clearly as anything could. As said by Mr. Justice Douglas in Johnson v. United States, 318 U.S. 189, 201, 63 S.Ct. 549, 555, 87 L.Ed. 704: ‘Any other coúrse would not comport with the standards for the administration of criminal justicé.,, We'cannot permit an' accused to' elect to pursue one course at the trial and then, when that has proved to be unprofitable, to insist olí' appeal that the course which he rejected at thé trial be reopened to him. ' However unwise the first choice may have been, the range of waiver' is, wide. Since the protection which could have been obtained was plainly waived, the accused cannot now be heard to charge the court with depriving him of a fair trial. The court only followed the course which he himself helped to chart and in which he acquiesced until the case was argued on appeal. The fact that the objection did not appear in the motion for new trial or in the assignments of error makes clear that the point now is a “mere afterthought.” ’ ” The Parker case was relied upon by the Court of Appeals for the Second Circuit in United States ex rel. Shapiro v. Jackson, 263 F.2d 282, 283, where it is said: “It is relator’s claim, albeit thus belated, that, after the jury had retired at the close of his trial, they returned to the courtroom while he was not present and at their request the testimony of three witnesses was read to them. We are unable to discover any injustice or prejudice in this claimed defect; the reading of the testimony on the jury’s request was quite proper, and relator was present and represented by counsel throughout the testimony at the trial. Even in the federal courts limited exceptions to an accused’s absolute right to be present throughout his trial are permitted. See United States v. Switzer, 2 Cir., 252 F.2d 139,143-144; Parker v. United States, 4 Cir., 184 F.2d 488.” Further citation of authority would seem unnecessary. Competent counsel did not raise the point now relied upon in the previous appeal. Language of the Parker case, supra, is in point. “Applicable also is what was said by, us in Crowe v. United States, 4 Cir., 175 F.2d 799, 801, as follows: ‘This is not the case of an accused who has been denied counsel and who has failed to assert his constitutional rights at the proper time because of ignorance, but of one who has had the assistance of able counsel who knew how to raise and would have raised upon the original trial the questions that he is now raising, if there had been any substance to them.’ ” 184 F.2d 488, 490. Appellant’s claim on this point is without merit. Appellant’s second contention, as above outlined, is that the trial judge was prejudiced against him. In his brief in this court he enlarges upon the claim made in the trial court as to the judge’s knowledge of the contents of the probation report, and suggests that the trial judge for sixteen years had been a “bitter enemy” of the appellant. We note that no attempt was made to disqualify the trial judge and the claim of bias or prejudice was not mentioned in the prior appeal to this court. We shall not give credence to the arguments and complaints of appellant relating to the claimed bias and prejudice of the trial judge by repeating them here. A brief filed by a lawyer containing such ill founded charges would be stricken and he could properly be cited for contempt. See Barnes v. United States, 9 Cir., 241 F.2d 252. It has been well said by Circuit Judge Frank of the Second Circuit in the case of In re J. P. Linahan, Inc., 138 F.2d 650: “Democracy must, indeed, fail unless our courts try cases fairly, and there can be no fair trial before a judge lacking in impartiality and disinterestedness. If, however, ‘bias’ and ‘partiality’ be defined to mean the total absence of preconceptions in the mind of the judge, then no one has ever had a fair trial and no one ever will. The human mind, even at infancy, is no blank ■ piece of paper. We are born with predispositions; and the process of education, formal and informal, . creates attitudes in all men which . affect them in judging situations, : attitudes which precede reasoning in particular instances and which, ■ therefore, by definition, are prej-.. udices. Without acquired ‘slants,’ pre-conceptions, life could not go on. Every habit constitutes a pre-judgment; were those pre-judgments which we call habits absent in any person, were he obliged to treat every event as an unprecedented crisis presenting a wholly new problem he would go mad. Interests, points of view, preferences, are the essence of living. Only death yields complete dispassionateness, for such dispassionateness signifies utter indifference. * * * An ‘open mind,’ in the sense of a mind containing no pre-conceptions whatever, would be a mind incapable of learning anything, would be that of an utterly emotionless human being, corresponding roughly to the psychiatrist’s descriptions of the feeble-minded. ■•• “ * * * Much harm is done by the myth that merely by putting on a black robe and taking the oath of office as a judge, a man ceases to be human and strips himself of all predilections, becomes a passionless thinking machine. The concealment of the human element in the judicial process allows that element to operate in an exaggerated manner; the sunlight of awareness has an antiseptic effect on prejudices. Freely avowing that he is a human being, the judge can and should, through self-scrutiny, prevent the operation of this class of biases.” 138 F.2d 651, 652, 653. Judge Gibson, who was not the trial judge, in ruling on this application, stated that there was no indication that the judge who sentenced Cox had had a ■presentence ■ report before him prior to receiving the verdict. We agree with ■this finding. • Thus, there was nothing to indicate that Rule' 32(c), Federal Rules of Criminal Procedure, had been violated. .The fact that the trial judge, when a judge in the state courts of Missouri .some'-sixteen or eighteen years before, :had sentenced appellant on a criminal •charge t and that he still remembered appellant’s prior criminal record, or, as appellant says, his “ill name among his neighbors” in no way disqualified him. We agree with the statement in Barnes v. United States, 241 F.2d 252, 254, as follows: “ * * * The conduct of the trial judge and his rulings in a former case are not the basis for disqualification here. All of the rulings in former cases, as well as the attitude of the judge, could have been raised upon appeal in such cases. Because a judge has decided one case against a litigant is no reason why he cannot sit in another.” . The complaints against the distinguished judge who heard the original case and sentenced appellant upon his conviction following the jury’s verdict of guilty, are entirely without merit. We affirm the trial court. Question: What is the most frequently cited federal rule of civil procedure in the headnotes to this case? Answer with a number. Answer:
songer_appfed	1	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. FEDERAL COMMUNICATIONS COMMISSION, Appellant-Cross-Appellee, v. Taft B. SCHREIBER and MCA, Inc., Appellees-Cross-Appellants. No. 17990. United States Court of Appeals Ninth Circuit. Feb. 17, 1964. Rehearing Denied May 4, 1964. Joseph D. Guilfoyle, Acting Asst. Atty. Gen., Sherman Cohn, Attorney, Department of Justice, Max D. Paglin, General Counsel, John J. O’Malley, Jr., Upton K. Guthery, and Barbara B. O’Malley, Attorneys, Federal Communications Commission, Washington, D. C., and Francis C. Whelan, U. S. Atty., Los Angeles, Cal., for appellant-cross-appellee. Beilenson, Meyer, Rosenfeld & Susman, Allen E. Susman, and Jeffrey L. Nagin, Beverly Hills, Cal., for appellees-cross-appellants. Before JERTBERG and BROWNING, Circuit Judges, and FOLEY, Jr., District Judge. FOLEY, Jr., District Judge. Appellant-Cross-Appellee will be referred to as the Commission and Appellees-Cross-Appellants jointly as Appellees and separately as MCA and Schreiber. On February 26, 1959, by authority of 47 U.S.C. § 403, the Commission published in the Federal Register (FR 1605) its order that an investigatory proceeding be instituted “ * * * to determine the policies and practices pursued by the networks and others in the acquisition, ownership, production, distribution, selection, sale and licensing of programs for television exhibition, and the reasons and necessity in the public interest for said policies and practices * * ." In the order, the hearing examiner designated to conduct the investigatory proceedings was authorized to receive evidence and make a record thereof, to administer oaths, subpoena witnesses, to compel their attendance, and compel the production of documentary evidence. The order closed with this paragraph: “IT IS FURTHER ORDERED, That the said investigatory proceeding shall be a public proceeding except that the said presiding officer may order non-public sessions of the said investigatory proceeding where and to the extent that the public interest, the proper dispatch of the business of said proceeding, or the ends of justice will be served thereby.” The record reflects that while public sessions were being held in Los Angeles, California, the examiner issued a subpoena duces tecum to Schreiber, MCA’s Vice President, commanding him to appear to testify and to produce documentary evidence described in the margin as Annex A and B. At the time and place appointed, Schreiber appeared with counsel and produced the list in Annex A, but refused to submit the material subpoenaed in Annex B, although then and there in his possession, unless the Commission would accept said material on a confidential basis, contending that if the material was revealed at a public hearing, trade secrets would be disclosed. Schreiber further refused to testify while the hearing was public and unless his counsel be given the right to object and to state grounds of objection on the record. The examiner refused to close the hearing and to accept the subpoenaed material as confidential and directed that Sehreiber’s counsel not participate in the proceedings other than by being present and advising Schreiber. Appellees petitioned the full Commission for review. The examiner was affirmed on all points and Schreiber was ordered by the Commission to produce Annex B and to testify publicly regarding the same. When Schreiber maintained the same position, the Commission sought enforcement in the court below pursuant to 47 U.S.C. §§ 401(a), 401(b), 409(f), and 409(g). The learned trial Judge filed an opinion January 22, 1962, F. C. C. v. Schrei-ber, D.C., 201 F.Supp. 421, and on March 2, 1962, filed his Findings of Fact, Conclusions of Law and Order. The Conclusions of Law and Order are printed in the margin. APPEAL BY COMMISSION We will first deal with the appeal by the Commission and will state the questions and errors specified in the language of the Commission set forth in its opening brief. Questions Presented 1. Whether the District Court erred in finding and concluding that any further interrogation of appellees and any documents produced by them shall be taken in a private, non-public proceeding and held by the Commission on a confidential basis; that the Commission must move the District Court for an order allowing the documents and testimony to be made public; and that appellees shall have the right to oppose such a motion. 2. Whether the District Court erred in concluding that under Section 6(a) of the Administrative Procedure Act, 5 U.S.C. § 1005(a), appellees have the following rights: (a) The right to have their counsel object to any questioning by the Commission, its counsel, or the presiding officer deemed improper by appellees’ counsel. (b) The right to have appellees’ counsel present, on the record, concise grounds and reasons for any such objection. Specification of Errors 1. The District Court erred in its Finding of Fact XI. 2. The District Court erred in its Conclusion of Law VII(b) and VII(e). We will consider these questions and specifications of error in the order set forth above. First Question and Specification of Error In his decision (pp. 425-426 of 201 F.Supp.), the Trial Judge stated: “However, I am of the opinion that in view of the well-grounded fears of the respondents that the testimony to be given might result in disclosure of trade-secrets, of which competitors might take advantage, it is ordered that the Examiner confine attendance at the hearing to the persons directly involved in the proceedings, their counsel, experts and witnesses and exclude the general public.” “The respondents, MCA, Inc. and Taft B. Schreiber, are hereby ordered to appear before a Hearing Examiner duly appointed by the Commission at a time and place to be fixed by the Commission, to testify and to produce books, papers and documents in accordance with the above mentioned subpoena and orders issued by the Commission and duly served upon the respondents. Jurisdiction will be retained by the Court for any subsequent proceedings consequent upon the order. (Hunt Food & Industries, Inc. v. Federal Trade Commission, 9 Cir., 1960, 286 F.2d 803, 813).” The Trial Court’s Finding of Fact No. XI reads: “The record herein, including but not limited to, the testimony in the extensive hearings held by the Commission in its network programming inquiry, make it necessary that in protection of respondents’ rights and to preclude disclosure of trade secrets of which competitors might take advantage, all further interrogation of, and all further testimony given by, respondents shall be given in non-public sessions, and shall be retained and maintained in confidence by the Commission.” The Commission does not question that the Trial Court had the authority to impose safeguards to prevent the possible disclosure of trade secrets, while ordering that appellees appear, testify and disclose the material sought by the Commission, but contends that the District Court abused its discretion and therefore erred. In Chapman v. Maren Elwood College, 9th Cir., 1955, 225 F.2d 230, at Page 231, we stated: “The key question in enforcement of the demand to produce records is whether it is reasonable or arbitrary. * * The question of reasonableness is one for consideration and adjudication by the courts. The mere fact that a demand has been made by an administrative agency does not establish the demand as reasonable.” In Goldberg v. Truck Drivers Local Union No. 299, 6th Cir., 1961, 293 F.2d 807, at Page 814, the Court states: “In our opinion, it was not unreasonable to compel production of records which the law required to be kept and from which the reports filed with the Secretary were made. * * * The District Court, however, had the power to impose protective restraints on the conduct of the investigation to relieve against oppression or other illegal conduct. Hunt Foods & Industries, Inc. v. Federal Trade Commission, 9 Cir., 286 F.2d 803, 811, certiorari denied 365 U.S. 877, 81 S.Ct. 1027, 6 L.Ed.2d 190.” In F. C. C. v. Cohn, S.D.N.Y.1957, 154 F.Supp. 899, at Page 908, the Court held: “Of course the subpoena power must at all times be confined to ‘the rudimentary principles of justice,’ and the courts will plainly refuse to enforce an administrative subpoena which is not within the bounds of reasonableness. Hale v. Henkel, 201 U.S. 43, 26 S.Ct. 370, 50 L.Ed. 652; Chapman v. Maren Elwood College, 9 Cir., 225 F.2d 230; N. L. R. B. v. Anchor Rome Mills, 5 Cir., 197 F.2d 447, 449-450. There is a delicate balance between the necessity of obtaining information required in the public interest in furtherance of a lawful inquiry, and the onerous burdens which the furnishing of this information may place on these respondents. But in the case at bar the scales are tipped on the side of the public interest so as to outweigh the burden and inconvenience to the respondents.” and at Page 911 of 154 F.Supp., “Subpoenas of an administrative agency, though validly issued, need not be enforced precisely according to their terms or without modification. Whenever it is made to appear that a subpoena is so broadly drawn as to be oppressive and unreasonable it is the duty of the court to prevent abuse of its process and to place such limitations upon the subpoena as is just and right under all the circumstances. N. L. R. B. v. Anchor Rome Mills, 5 Cir., supra, 197 F.2d at page 449; see Kilgore National Bank v. Federal Petroleum Board, 5 Cir., 209 F.2d 557, 560; cf. Chapman v. Maren Elwood College, 9 Cir., 225 F.2d 230, supra; Walling v. American Rolbal Corp., 2 Cir., 135 F.2d [1003] at page 1005, supra.' These matters are in the court’s discretion.” In Delno v. Market St. Ry. Co., 9th Cir., 1942, 124 F.2d 965, at Page 967, this Court said: “Discretion, in this sense, is abused when the judicial action is arbitrary, fanciful or unreasonable, which is another way of saying that discretion is abused only where no reasonable man would take the view adopted by the trial court. If reasonable men could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.” In a recent case, Weller v. Dickson, 9th Cir., 1963, 314 F.2d 598, beginning on Page 600, we said, in part: “ * * * we must consider for a moment what is meant by the exercise and abuse of discretion. The judicial efforts to give these expressions some legal stability are legion. It was held in Hartford-Empire Co. v. Obear-Nester Co., 95 F.2d 414, 417 (8th Cir. 1938) that where an appellate court has power to review the exercise of a judicial discretion governed by situation and circumstances affecting exercise of discretion, inquiry is confined to the question whether the situation and circumstances clearly show an ‘abuse of discretion’, that is, arbitrary action not justified in view of the situation and circumstances. “The Court in N. L. R. B. v. Gurn-sey-Muskingum Elect. Co-op. [Inc.], 285 F.2d 8, 11 (6th Cir. 1960) pointed out that there is no exact measure of what constitutes an abuse of discretion, and it is more than the substitution of judgment of one tribunal for that of another, discretion being governed by situation and circumstances affecting each individual case, and even where an appellate court has power to review exercise of such discretion, inquiry is confined to whether such situation and circumstances clearly show an abuse of discretion, that is, arbitrary action not justifiable in view of such situation and circumstances. “Present day decisions have tended to erode the common law meaning of many words and phrases used in legal literature, and as a result the word ‘discretion’ as it is now generally used in the law, is but an anemic facsimile of a robust ancestor. Unless we are about to attend its demise, and make the word entirely meaningless, we should proceed with some caution.” In Wigmore on Evidence, McNaughton Revision, Volume VIII, Section 2212, under the title “Trade Secrets and Customers’ Names”, we note the following language: “Accordingly, there ought to be and there is, in some degree, a recognition of the privilege not to disclose that class of facts which, for lack of a better term, have come to be known as trade secrets. “Nevertheless, the occasional necessity of recognizing it should not blind us to the danger of such a measure, or entice us into an unqualified sanction for such a demand. * * * In other words, a person claiming that he needs to keep these things secret at all should be expected to make the exigency particularly plain. * * * No privilege at all should there be conceded, although as much privacy as possible might be preserved by compelling disclosure no farther than to the judge himself, * * We hold, therefore, that the Trial Judge did not abuse his discretion, but, on the contrary, established a fair and just procedure whereby a most important investigation could proceed without being unduly disrupted, obstructed or prolonged, and at the same time afford appellees protection against the improvident disclosure of possible valuable trade secrets. Second Question and Specification of Error Did the District Court err in its Conclusion of Law No. VII(b) and (c), which reads, “Under § 6(a) of the Administrative Procedure Act, respondents were not entitled to cross-examine witnesses testifying in these hearings. Respondents were and are, however, entitled to the following: “(b) The right to have respondents’ counsel object to any questioning by the Commission, its counsel or Hearing Examiner deemed improper by respondents’ counsel. “(c) The right to have counsel for respondents present on the record concise grounds and reasons for any such objections.” The parties agree and we so hold that the proceedings in this case are investigatory and not adjudicative in nature. They also agree that the right of counsel to object and argue objections on the record, if it exists in this case, is not a constitutional right, but a statutory right. We concur; see Hannah v. Larche, 363 U.S. 420, 80 S.Ct. 1502, 4 L.Ed.2d 1307 (1960). Does the first sentence of Section 6(a) of the Administrative Procedure Act (5 U.S.C. § 1005(a)) apply to fact-finding investigations by the Commission, or is the sentence applicable only to the Commission’s adjudicative functions? Professor Davis in his work, Administrative Law Treatise, Volume I, Section 8.10, Right to Counsel, writes: “The Administrative Procedure Act provides in § 6(a): ‘Except as otherwise provided in this Act — * * in Any person compelled to appear person before any agency or representative thereof shall be accorded the right to be accompanied, represented and advised by counsel or, if permitted by the agency, by other qualified representative. Every party shall be accorded the right to appear in person or by or with counsel or other duly qualified representative in any agency proceeding.’ “The first sentence reverses the law declared in Bowles v. Baer, 142 F.2d 787, (7th Cir. 1944), holding that witnesses subpoenaed in an administrative investigation may be denied representation by counsel. If the person is ‘compelled to appear in person’, he is entitled to counsel.” The first sentence of Section 6(a) has been held to assure the appearance of counsel with taxpayers and with other witnesses compelled to appear for examination before agents of the Internal Revenue Service conducting private investigations. Backer v. Commissioner of Internal Revenue, 5th Cir., 1960, 275 F.2d 141; In Re Neil, D.C.S.D.W.Va., 1962, 209 F.Supp. 76; United States v. Smith et al., D.C.Conn., 1949, 87 F.Supp. 293. The statutory authority for the appearance of counsel in these cases is the Administrative Procedure Act. In the Internal Revenue Code, Congress did not provide for the appearance of counsel in such eases. The Trial Judge, in his opinion in this •case, at Page 423 of 201 F.Supp., pointed out that in Hannah, the Supreme Court considered the meaning of the right to counsel before regulatory agencies conducting fact-finding investigations. While this is true, in our reading of Hannah, the Civil Rights Act and not the Administrative Procedure Act is the source of authority for appearance of counsel. The Supreme Court did not hold that the first sentence of Section 6(a) applies to investigations by regulatory agencies. As a matter of fact, the Commission argues that in Hannah, the Court, by implication, took the contrary position. Beginning at Page 445 of 363 U.S., at Page 1516 of 80 S.Ct., 4 L.Ed.2d 1307, we find this language: “Although these agencies normally make determinations of a quasi-judicial nature, they also frequently conduct purely fact-finding investigations. When doing the former, they are governed by the Administrative Procedure Act, 60 Stat. 237, 5 USC §§ 1001-1011, and the parties to the adjudication are accorded the traditional safeguards of a trial. However, when these agencies are conducting nonadjudicative, fact-finding investigations, rights such as apprisal, confrontation, and cross-examination generally do not obtain.” What the Supreme Court actually decided in Hannah was that the Due Process Clause of the Fifth Amendment did not require that, in fact-finding, non-adjudicative investigations, “the full panoply of judicial procedures be used * * * due process embodies the differing rules of fair play, which through the years, have become associated with differing types of proceedings * * * ” (p. 442 of 363 U.S., p. 1514 of 80 S.Ct., 4 L.Ed.2d 1307). Thus, in stating that when an agency acts quasi-judicially, it is governed by the Administrative Procedure Act and the parties are accorded the “traditional safeguards of a trial”, the Court is indicating that the Administrative Procedure Act assures due process under the Fifth Amendment where there is a trial-type, adjudicative proceeding. Unlike the Civil Rights Act considered in Hannah, the Federal Communications Act does not provide for the appearance of counsel when the Commission conducts a fact-finding, nonadjudicative investigation. Therefore, unless the first sentence of Section 6(a) applies, counsel’s right to appear and participate in the instant hearing exists only by virtue of the Commission’s duly promulgated Rules and Regulations. Since the Supreme Court has not decided the question of the applicability of the first sentence of Section 6(a) of the Administrative Procedure Act to non-'adjudicative, fact-finding investigations, neither should we, unless it is necessary. We need not and do not do so, because, assuming that the first sentence of Section 6(a) applies to the instant investigation, we hold that its_requirements have been met. Appellees contend that the word “represented” in the phrase “the right to be accompanied, represented, and advised by counsel” in the first sentence of Section 6(a) entitled counsel to object and to state grounds in support of objections on the record and the Trial Judge apparently agreed. This is a question of first impression. We hold that the word “represented” must be read in light of the Due Process Clause of the Fifth Amendment and therefore varies in meaning depending upon the nature of the function being exercised. While counsel may, as a matter of right, object and argue objections on the record, just as he may, as a matter of right, cross-examine and call witnesses in a trial-type, adjudicatory proceeding, these rights do not exist in the fact-finding, nonadjudicative investigation unless specifically provided by statute or duly promulgated rules. The right to object and argue objections on the record Is not to be implied, here, from the use of the word “represented” in Section 6(a). The Commission’s proposed Conclusion of Law No. VII reads as follows: “VII “The respondents were accorded the representation by counsel to which they were entitled by law in an investigatory proceeding such as that before the Commission. “Hannah v. Larche, 363 US 420, 446 [80 S.Ct. 1502, 4 L.Ed.2d 1307] (1960) “Administrative Procedure Act, § 6(a) (5 USC § 1005(a))”. The Trial Court rejected the Commission’s proposed Paragraph VII in favor of Paragraph VII proposed by appellees. For the reasons given, the Trial Court erred in so doing. Under the Federal Communications Act, the Commission has the authority to limit counsel in this regard. Inherent in the Commission’s power of investigation (47 U.S.C. § 403) is the authority “to prevent the sterilization of investigations by burdening them with trial-like procedure.” (Hannah v. Larche, Page 448 of 363 U.S., Page 1518 of 80 S.Ct., 4 L.Ed.2d 1307). The reasoning in Hannah supports our position. There, the Court quotes with approval a rule of the Federal Trade Commission that while “persons summoned to appear before investigative proceedings * * * may have the advice of counsel, ‘counsel may not, as a matter of right, otherwise participate in the investigation.’ ” (p. 446 of 363 U.S., p. 1517 of 80 S.Ct., 4 L.Ed.2d 1307.). Cross Appeal by Appellees Appellees contend that the District Court erred by failing to conclude that the Commission is without power to compel appellees to produce documents requested and to give testimony until the Commission complies with the requirements of Section 3 of the Administrative Procedure Act by promulgating and publishing proper rules governing the procedures for investigative proceedings. The language of Section 3(a) of the Administrative Procedure Act relied upon by appellees is found in 5 U.S.C. § 1002, and in its pertinent parts, reads, “(a) Every agency shall separately state and currently publish in the Federal Register * * * substantive rules adopted as authorized by law and statements of general policy or interpretations formulated and adopted by the agency for the guid-anee of the public, but not rules addressed to and served upon named persons in accordance with law. No person shall in any manner be required to resort to organization or procedure not so published.” Appellees contend, generally, that the Commission is required to promulgate and publish rules and regulations governing investigations similar to the Commission’s rules of practice applicable to its adjudicative proceedings (47 C.F.R. §§ 1.11 — 1.56) and specifically that there must be promulgated and published procedures governing the role of counsel, witnesses and review by the Commission of determinations made by the Examiner. The Commission cites Section 1.10 of Its Rules and Regulations (47 C.F.R. § 1.10), as follows: “Proceedings before the Commission. The Commission may on its own motion or petition of any interested party hold such proceedings as it may deem necessary from time to time in connection with the investigation ox any matter which it has power to investigate under the law, or for the purpose of obtaining information necessary or helpful in the determination of its policies, the carrying out of its duties or the formulation or amendment of its rules and regulations. For such purposes it may subpena witnesses and require the production of evidence. Procedures to be followed by the Commission shall, unless specifically prescribed in this part, be such as in the opinion of the Commission will best serve the purpose of such proceeding.” The Commission calls to our attention that it has published in the Federal Register some thirteen orders governing this proceeding. We find that the record supports the Commission’s position that appellees have had full and complete notice of all proceedings taken which concern them and that appellees have not been prejudiced in any manner by the Commission’s failure to promulgate and publish rules and regulations if required. Appellees apparently concede that this is so, but argue that they may be prejudiced in the future since the Commission’s investigation has not been completed. The Trial Judge found these objections without merit. At Page 425 of 201 F.Supp., he said: “The complaint that the Commission has not promulgated ‘ground rules’ as required by the Administrative Procedure Act (5 U.S.C.A. §§ 1002, 1003) is not well taken. It is doubtful if the provisions of that Act apply to any but adjudicating agencies. (Hannah v. Larche, supra, 363 U.S. pp. 452-453, 80 S.Ct. 1502, 4 L.Ed.2d 1307). Furthermore, there is evidence in the record showing that rules have been promulgated which are suited to the needs of the Commission. At any rate, unless and until an adjudicative stage is reached, the failure to make rules becomes an abstract question which need not be decided now. Failure to do so does not prejudice the respondents.” We also note Paragraph X of the Conclusions of Law reads: “X “The alleged failure of the Commission to promulgate adequate ground rules to cover the proceeding did not prejudice respondents. “Administrative Procedure Act, Section 10(e), [5 U.S.C. § 1009(e)].” It is not necessary for us to decide whether Section 3(a) applies to nonad-judicative, fact-finding investigations, and it is unnecessary to define the term “substantive rule” as used in Section 3 (a) or to determine if the rules appellees seek constitute rules of substance or procedure, since failure to promulgate and publish rules has not prejudiced appel-lees. While Section 10(e) of the Administrative Procedure Act directs the reviewing court to set aside agency action found to be taken without observance of procedure required by law, it also directs that the Court take due account of the rule of prejudicial error. See Madokoro v. Del Guercio, 9th Cir., 1947, 160 F.2d 164, 167, cert. denied 332 U.S. 764, 68 S.Ct. 68, 92 L.Ed. 349; Alesi v. Cornell, 9th Cir., 1957, 250 F.2d 877, 879; Florida Citrus Commission v. United States, D.C.N.D.Fla, 1956, 144 F.Supp. 517, 521, aff’d. 352 U.S. 1021, 77 S.Ct. 589, 1 L.Ed.2d 595. We refuse to speculate about the future. In the event other conflicts arise during the investigation, judicial review is available. We find the cross appeal without merit. We affirm the Trial Court, except that Subparagraphs (b) and (c) of Paragraph YII of the Conclusions of Law are stricken and the order below is modified to conform to this opinion. . On November 10, 1959, the Commission entered a supplemental order as follows: “NOW THEREFORE, IT IS ORDERED that the inquiry and investigatory proceeding instituted, pursuant to the Commission’s Order of February 26, 1959, * * * be and is hereby amended and enlarged to determine the policies, practices, mechanics and surveillance pursued and carried out by networks, station licensees and others in connection with the acquisition, ownership, production, distribution, selection, sale and licensing of programs for radio and television exhibition and the policies and practices pursued by networks, station licensees and others in connection with the selection, presentation and supervision of advertising material for broadcast to the public and the reasons and necessity in the public interest for said policies and practices * * 24 F.R. 9275. . ANNEX (A) A list by name or title of all television programs whether series programs, special programs, or otherwise, which appeared or were exhibited by or through the facilities of the television networks operated by NBC, CBS, or ABC since September 1, 1958, which programs were produced by MCA, Ine. or Revue Productions, Ine. and/or in which MCA, Ine. or Revue Productions, Inc. has or had a financial or proprietary interest or with regard to which MCA, Ine. or Revue Productions, Ine. is or was entitled to receive or has received a percentage of the profits or other compensation or fees in connection with the production or exhibition of such programs other than remuneration or compensation for the representation as agent of individual natural persons as talent. (B) A list of all television programs whether series programs, special programs, or otherwise, which appeared on or were exhibited by or through the facilities of the television networks of NBC, CBS, or ABC, since September 1, 1958, in which MCA, Inc. or any predecessor affiliate or subsidiary of MCA, Inc. acted as packager (a) and/or, by agreement or otherwise, is entitled to receive or has received a percentage of the cost or selling price of said program or was or is entitled to receive or has received other compensation, remuneration or fees in connection with the packaging, licensing for broadcast or selling of said program, otherwise than as remuneration or compensation for the representation as agent of individual natural persons as talent. (a) “The term ‘packaging’ is generally applied to the process of developing and assembling the talent and scripts for a particular program or programs. A producer has general charge of the physical processes by which the package is readied for television production.” (This case below, F. C. C. v. Schreiber, D.C., 201 F.Supp. 421, 424.) . In its Order of January 27, 1961, affirming the Examiner, the Commission stated in part: “It was the intention of the Commission in issuing both of the above Orders to institute a broad and comprehensive inquiry to establish a public record of the relevant policies, practices, facts and circumstances involved in the production, creation, selection, sale, licensing and exhibition of programs broadcast through the facilities of its licensees. Although the Commission empowered the Presiding Officer to accept evidence, information and data on a nonpublic basis, it was the Commission’s express intent that the proceedings be public and that the record be available to the public, station licensees, the broadcast industry, to the Commission and to Congress. We think it clear that all of such groups have a proper interest in the complex and generally unknown processes involved in the production, sale, distribution, et cetera, of broadcast programming and, more particularly, in the factual basis for any action — legislative, rule-making or licensing — -which the Commission may take as a result of its inquiry into these matters. Moreover, the policies and practices into which inquiry is and has been made herein, involve many-sided transactions between diverse and partially competitive (but also partially complementary) components and members of the same industry, such as networks, advertising agencies, program producers, program packagers, talent agencies, etc. If we are to obtain a full and rounded picture of such transactions, it is highly desirable that the facts, information, data and opinion supplied by one group or individual be known to other groups and individuals involved, so that they may verify, refute, explain, amplify or supplement the record from their own diverse points of view. In our view, a public investigatory hearing is the most effective means to this end. For these reasons, among others, we determined that public proceedings should be the rule herein, and that non-public procedures should be used only in those extraordinary instances where disclosure would irreparably damage private, competitive interests and where such interests could be found by the Presiding Officer to outweigh the paramount interest of the public and the Commission in full public disclosure. It was not the Commission’s intention that the non-public procedure be used, solely for their own convenience, by private persons who might be called as witnesses. Nor was it the Commission’s intention to accept any information on a basis which would prevent its disclosure if the public Interest so requires.” . CONCLUSIONS OF LAW I. This Court has jurisdiction of the Cause. Communications Act of 1934, as amended, Sections 401(a), 401(b), 409(g) ; 47 U.S.C. §§ 401(a), 401(b), 409(g). II. The Commission is authorized to conduct the instant investigation. Communications Act of 1934, as amended, § 403, 47 U.S.C. § 403; Federal Communications Commission v. Cohn, 154 F.Supp. 899, 906 (S.D.N.Y.1957). III. The Commission has authority to issue the subpoena and orders sought to be enforced in this proceeding. Communications Act of 1934, as amended, §§ 409(e), (f), 47 U.S.C. §§ 409(e), (f); Stahlman v. Federal Communications Commission, 126 F.2d 124, 128 (D.C.Cir. 194 Question: What is the total number of appellants in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number. Answer:
sc_respondentstate	22	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state associated with the respondent. If the respondent is a federal court or federal judge, note the "state" as the United States. The same holds for other federal employees or officials. MARYLAND et al. v. LOUISIANA No. 83, Orig. Decided May 26, 1981 Decree entered June 15, 1981 DECREE This cause having come on to be heard on the exceptions to the Reports of the Special Master dated May 14, 1980, and September 15, 1980, and having been argued by counsel and this Court having stated its conclusions in its opinion announced May 26, 1981, 451 U. S. 725, and having considered the positions of the respective parties as to the terms of this decree, It Is Ordered, Adjudged, and Decreed As Follows: 1. The exceptions of the defendant State of Louisiana to the Report of the Special Master dated May 14, 1980, are overruled and accordingly: (a) the motions of the State of New Jersey, the United States and the Federal Energy Regulatory Commission, and Columbia Gas Transmission Corporation et al., for leave to intervene as party plaintiffs are granted; and (b) the motion of Associated Gas Distributors for leave to file a brief as amicus curiae is granted. 2. The exceptions of the defendant State of Louisiana to the Report of the Special Master dated September 15, 1980, are overruled, the plaintiff’s exceptions are sustained to the extent indicated in this Court’s opinion, and accordingly: (a) the motion of the defendant State of Louisiana to dismiss the bill of complaint is denied; and (b) the motion of the plaintiff States for judgment on the pleadings is granted in part. 3. The motion of the plaintiff States for entry of decree and the motion of the Solicitor General for entry of decree are granted. The motion of the defendant State of Louisiana for entry of decree is denied. 4. Section 1 of the Louisiana First Use Tax Act, La. Rev. Stat. Ann. §47:1303C (West Supp. 1981), violates the Supremacy Clause and the Louisiana First Use Tax Act, La. Rev. Stat. Ann. §§47:1301^7:1307 (West Supp. 1981), is unconstitutional under the Commerce Clause. 5. Effective with the date of entry of this decree, the defendant State of Louisiana, its officers, agents, and employees are permanently enjoined and prohibited from collecting the Louisiana First Use Tax. 6. Within thirty (30) days after the entry of this decree, the defendant State of Louisiana shall: (a) render to the plaintiffs and file with the Court a true, full, accurate, and appropriate account of any and all revenues collected pursuant to the First Use Tax Act and of the interest earned by the defendant as a result of its investment of these revenues and the interest earned thereon; and (b) refund to the taxpayers any and all revenues collected pursuant to the First Use Tax together with any and all interest earned as a result of its investment of these revenues and the interest earned thereon, but to the extent that the First Use Tax revenues and the interest earned thereon have been invested by the defendant State of Louisiana in interest-bearing securities, the defendant State of Louisiana shall transfer to the taxpayers the proceeds of principal and interest from such securities as each of such securities matures. 7. The Court retains jurisdiction to entertain such further proceedings, enter such orders, and issue such writs as may from time to time be deemed necessary or advisable to give proper force and effect to this decree or to effectuate the rights of the parties in the premises. Justice Powell took no part in the consideration or decision of these motions or this decree. Question: What state is associated with the respondent? 01. Alabama 02. Alaska 03. American Samoa 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. District of Columbia 11. Federated States of Micronesia 12. Florida 13. Georgia 14. Guam 15. Hawaii 16. Idaho 17. Illinois 18. Indiana 19. Iowa 20. Kansas 21. Kentucky 22. Louisiana 23. Maine 24. Marshall Islands 25. Maryland 26. Massachusetts 27. Michigan 28. Minnesota 29. Mississippi 30. Missouri 31. Montana 32. Nebraska 33. Nevada 34. New Hampshire 35. New Jersey 36. New Mexico 37. New York 38. North Carolina 39. North Dakota 40. Northern Mariana Islands 41. Ohio 42. Oklahoma 43. Oregon 44. Palau 45. Pennsylvania 46. Puerto Rico 47. Rhode Island 48. South Carolina 49. South Dakota 50. Tennessee 51. Texas 52. Utah 53. Vermont 54. Virgin Islands 55. Virginia 56. Washington 57. West Virginia 58. Wisconsin 59. Wyoming 60. United States 61. Interstate Compact 62. Philippines 63. Indian 64. Dakota Answer:
songer_casetyp1_1-3-2	A	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Your task is to determine the specific issue in the case within the broad category of "criminal - state offense". Son H. FLEMING, Petitioner-Appellant, v. Ralph KEMP, Warden, Georgia Diagnostic and Classification Center, Respondent-Appellee. No. 86-8476. United States Court of Appeals, Eleventh Circuit. Jan. 27, 1988. Kathryn O’Shields Shapiro, Powell, Gold-stein, Frazer & Murphy, Kenneth A. Shapiro, Paul, Hastings, Janofsky & Walker, Atlanta, Ga., for petitioner-appellant. Mary Beth Westmoreland, Asst. Atty. Gen., Atlanta, Ga., for respondent-appellee. Before FAY, JOHNSON and CLARK, Circuit Judges. PER CURIAM: Son H. Fleming was scheduled for execution on June 27, 1986. On June 25, 1986, the United States District Court for the Middle District of Georgia dismissed Fleming’s second federal habeas corpus petition on “abuse of the writ” grounds and thus refused to grant Fleming a stay of execution. Fleming v. Kemp, 637 F.Supp. 1547 (M.D.Ga.1986). On June 27,1986, this panel stayed Fleming’s execution because he presented at least one substantial ground properly before this Court upon which he might be entitled to relief. Fleming v. Kemp, 794 F.2d 1478 (11th Cir.1986). Without reaching the merits of Fleming’s petition, this panel stayed Fleming’s execution pending the Supreme Court’s decision in Griffith v. Kentucky, — U.S.-, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987). We now reach the merits and affirm the district court. I. Fleming was convicted of murdering the police chief of a small South Georgia town and sentenced to death in 1977. On direct appeal, the Georgia Supreme Court reversed the death sentence because the trial judge erred in instructing the jury in the sentencing phase. Fleming v. State, 240 Ga. 142, 240 S.E.2d 37 (1977). In a second sentencing trial a jury again recommended the death penalty and the court sentenced Fleming accordingly. After Fleming failed to win further relief on direct appeal, see Fleming v. State, 243 Ga. 120, 252 S.E.2d 609 (1979), cert. denied, 444 U.S. 885, 100 S.Ct. 177, 62 L.Ed.2d 115 (1979), and in state postconviction proceedings, he filed his first federal habeas corpus application with the United States District Court for the Middle District of Georgia. That court denied the writ, Fleming v. Zant, 560 F.Supp. 525 (M.D.Ga.1983), and on appeal a divided panel of this Court affirmed. Fleming v. Kemp, 748 F.2d 1435 (11th Cir.1984), reh’g en banc denied, 765 F.2d 1123 (11th Cir.1985). The Supreme Court denied certiorari, Fleming v. Kemp, 475 U.S. 1058, 106 S.Ct. 1286, 89 L.Ed.2d 593 (1986), and rehearing. Fleming v. Kemp, 475 U.S. 1132, 106 S.Ct. 1665, 90 L.Ed.2d 206 (1986). The Superior Court of Butts County, Georgia, thereafter denied Fleming’s second state habeas application, and the Georgia Supreme Court refused to grant a certificate of probable cause to appeal. Fleming then filed his second federal habeas petition, giving rise to the present case. II. A. Michigan v. Jackson Claim Fleming argues that his Sixth and Fourteenth Amendment rights were violated when at his resentencing the prosecutor presented statements obtained in police interrogation after Fleming was formally charged and had requested the assistance of counsel. Fleming argues that Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986), applies retroactively and thus provides “new law” precluding an abuse of the writ finding. On the merits, Fleming argues he has established a Jackson violation. The district court held that even if Jackson represented a change in law, Fleming had not shown a Jackson violation. 637 F.Supp. at 1553. We affirm the district court. 1. Abuse of the Writ? Fleming raised this claim in his first federal habeas petition before the district court, but did not pursue the claim on appeal. In staying Fleming’s execution, this panel determined that these facts mean that this petition is a successive petition. Fleming, 794 F.2d at 1482-83. This panel also set forth the test for determining whether abuse of the writ is present and whether the “ends of justice” excuse that abuse: If the ground was previously addressed in a federal habeas proceeding, the petitioner must demonstrate that the decision was not on the merits or the ends of justice would be served by reconsideration of the merits. The “ends of justice” are defined by objective factors, such as whether there was a full and fair hearing on the original petition or whether there was an intervening change in the facts of the case or the applicable law. Id. at 1481-82 (quoting Witt v. Wainwright, 755 F.2d 1396, 1397 (11th Cir.1985)). No doubt exists that this ground was raised in a previous proceeding and that the decision was on the merits. Thus, abuse is excused only if the “ends of justice” so require. No doubt exists that as to this claim there was a full and fair hearing on the original petition and that no intervening change in the facts of the case has occurred. Fleming argues, however, that the Supreme Court decision in Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986), presents an “intervening change in the applicable law,” thus excusing any abuse of the writ problems. This Court must determine (a) if Jackson did indeed “change the law” and (b) if so, whether Jackson applies retroactively to Fleming’s case. a. Intervening Change in Law? In Jackson, the Supreme Court held that, “if police initiate interrogation after a defendant’s assertion, at an arraignment or similar proceeding, of his right to counsel, any waiver of the defendant’s right to counsel for that police-initiated interrogation is invalid.” 106 S.Ct. at 1411. This holding represented a recognition that the decision in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), which was based on the Fifth Amendment, applied with even “greater force” to Sixth Amendment claims. Jackson, 106 S.Ct. at 1411. Jackson thus provides a “bright-line” rule that differs from prior Sixth Amendment cases which focused on whether defendants validly waived their right to counsel. Id. at 1408. This suffices to constitute an intervening change in the law. b. Jackson’s Retroactivity Having established that Jackson represents an intervening change in the law, the question arises whether Jackson applies retroactively to Fleming’s case—a case of collateral attack. Supreme Court decisions concerning retroactivity exhibit a dichotomy depending upon whether the case is final (i.e., under collateral attack) or pending on direct review. Last Term, the Court provided a “bright-line” rule that “a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a ‘clear break’ with the past.” Griffith v. Kentucky, — U.S. -, 107 S.Ct. 708, 716, 93 L.Ed.2d 649 (1987) (emphasis added). Because Fleming’s case is final, Griffith provides no support. The Supreme Court has continued to apply a three-prong test in determining whether new constitutional rules governing criminal prosecutions should apply retroactively for cases on collateral review: (1) the purpose to be served by the new standards, (2) the extent of the reliance by law enforcement authorities on the old standards, and (3) the effect on the administration of justice of a retroactive application of the new standards. In Solem v. Stumes, 465 U.S. 638, 104 S.Ct. 1338, 79 L.Ed.2d 579 (1984), the Court applied the three-prong test and held that Edwards does not apply retroactively to cases on collateral review. Although Jackson is an extension of Edwards into the Sixth Amendment context, Stumes does not a fortiori require a holding of nonretroactivity for Jackson i. Purpose Served by the New Standard In Stumes, the Court recognized that it has consistently held retroactive new rules going to the “heart of the truthfinding function.” 465 U.S. at 645, 104 S.Ct. at 1343. The Stumes Court noted that although Edwards was not entirely unrelated to the accuracy of the final result, Edwards only set forth a prophylactic rule designed to implement preexisting rights, a type of rule usually not applied retroactively. Id. at 644-45, 104 S.Ct. at 1342. Jackson has similar purposes; it creates a prophylactic rule designed to implement preexisting rights. Consequently, under this prong, retroactivity appears disfavored. ii. Prior Law Enforcement Reliance In Stumes, the Court found Edwards not to have been “clearly” or “distinctly” foreshadowed, even though it was not a “clear break” with the past. The Court thus found the reliance interest of law enforcement officials compelling. Id. at 649-50, 104 S.Ct. at 1344-45. Similarly, Jackson did not represent a “clear break.” Jackson, however, was clearly foreshadowed by Edwards, especially because Edwards heavily relied on Sixth Amendment precedent. Thus the reliance interest is considerably less with Jackson and retroactivity seems favored. iii. Administrative Effect In Stumes, the Court asserted that “a disruptive effect on the administration of justice... [w]e can only guess at” counseled against retroactivity. Id. at 650, 104 S.Ct. at 1345. Given that Jackson was foreshadowed and given that police officials are aware of how difficult it is to introduce statements once a defendant has asserted his right to counsel before a judicial officer, few cases likely will raise this issue. Cf. Jackson, 106 S.Ct. at 1413 (Rehnquist, J., dissenting) (“The Court does not even suggest that the police commonly deny defendants their Sixth Amendment right to counsel. Nor, I suspect, would such a claim likely be borne out by empirical evidence.”). Consequently, this limited “disruptive effect” supports holding Jackson retroactive. Whether to apply Jackson retroactively inevitably involves a balancing process. In light of the “presumption of retroactivity,” Stumes, 465 U.S. at 642, 104 S.Ct. at 1341, this Court could hold that Jackson applies retroactively to all cases. Such a broad holding, however, is unnecessary. Rather, the conclusion here is tailored to the facts peculiar to Fleming’s petition. Fleming made four statements to police officials: (1) a February 12, 1976 oral statement to Detective Register and Sheriff Gaskins; (2) a February 15 tape-recorded statement to Agent Greeson; (3) a February 16 tape-recorded statement to Detective Register and Sheriff Gaskins; and (4) a subsequent February 16 oral, unrecorded statement to Sheriff Alderman. Only the second and third statements are at issue. Fleming gave the February 12 statement before he had allegedly asserted his right to counsel at an adverse judicial proceeding. Fleming, rather than the police, initiated the interrogation leading to the fourth statement. See Tucker v. Kemp, 818 F.2d 749, 751 (11th Cir.), cert. denied, — U.S.-, 107 S.Ct. 2209, 95 L.Ed.2d 863 (1987). The State elicited testimony about the second and third statements only at Fleming’s new sentencing trial on December 5-6, 1977, and not at the guilt phase in January 1977. Consequently, Fleming’s petition presents the narrow question of whether Jackson should apply retroactively where the statements subject to a Jackson challenge were before the jury at the sentencing phase only. iv. Purpose Served by the New Standard Jackson establishes a prophylactic rule designed to protect a defendant’s right to counsel. When a defendant invokes his right to counsel, this invocation is tantamount to his admission “that he does not believe that he is sufficiently capable of dealing with his adversaries singlehandedly.” State v. Jackson, 421 Mich. 39, 63-64, 365 N.W.2d 56, 67 (1984), quoted with approval in Jackson, 106 S.Ct. at 1410 n. 7. Jackson thus sets forth a “bright-line” rule when statements must be suppressed. As Stumes noted, the Court does not favor retroactivity for prophylactic rules. The facts peculiar to Fleming’s petition, however, support holding Jackson retroactive. The Supreme Court favors retroactivity for decisions going to the “truth-seeking” function of the jury. In capital cases, determining whether a defendant receives a life sentence or a death sentence is akin to the jury’s truth-seeking role during the guilt phase. The Supreme Court has drawn a distinction between capital and noncapital cases in sentencing determinations. In Turner v. Murray, 476 U.S. 1, 106 S.Ct. 1683, 90 L.Ed.2d 27 (1986), the Court held that a black defendant accused of committing a capital crime against a white victim is constitutionally entitled to have veniremen examined as to racial bias. In so holding, the Court refused to extend Ristaino v. Ross, 424 U.S. 589, 96 S.Ct. 1017, 47 L.Ed.2d 258 (1976), to capital cases. Ristaino held that an examination of veniremen regarding racial bias is not constitutionally required when such questioning is requested by a defendant accused of a noncapital interracial violent crime. In Turner, the Court remanded for a new sentencing determination. A four-Justice plurality stressed the unique role played by the jury at the sentencing phase in a capital case, and stressed the qualitative difference between death and other forms of punishment. Similar policies are implicated by Fleming’s case. Consequently, this “purpose” factor counsels that Jackson should apply retroactively to sentencing determinations in capital cases. Such a conclusion would comport with holdings giving retroactive effect to cases affecting the evidence available to juries when they make death sentence determinations. For example, Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), applies retroactively. See Songer v. Wainwright, 769 F.2d 1488, 1489 (11th Cir.1985) (en banc), cert. denied, — U.S.-, 107 S.Ct. 1982, 95 L.Ed.2d 822 (1987). See also Adams v. Dugger, 816 F.2d 1493 (11th Cir.1987) (applying Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985) retroactively), cert. filed (July 20, 1987). v. Prior Law Enforcement Reliance The facts of Fleming’s petition do not favor retroactivity on this point. The statement at issue here was taken in February 1976. At that point, the Supreme Court had clearly articulated that “it has been firmly established that a person’s Sixth and Fourteenth Amendment right to counsel attaches only at or after the time that adversary judicial proceedings have been initiated against him.” Kirby v. Illinois, 406 U.S. 682, 688, 92 S.Ct. 1877, 1881, 32 L.Ed.2d 411 (1972) (plurality opinion) (citing nine Supreme Court precedents). The Court defined a “formal charge, preliminary hearing, indictment, information, or arraignment” as forms of “adversary judicial proceedings.” Id. at 689, 92 S.Ct. at 1882. Likewise, at the time of Fleming’s arrest in 1976, it was also clear that statements taken in violation of a person’s Sixth Amendment rights could not be used against that person at trial. See Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). But at the time of Fleming’s resentenc-ing in December 1977, the Supreme Court had recently indicated that even if the Sixth Amendment right to counsel had attached, a person could waive it. See Brewer v. Williams, 430 U.S. 387, 404, 97 S.Ct. 1232, 1242, 51 L.Ed.2d 424 (1977) (“[I]t was incumbent upon the State to prove ‘an intentional relinquishment or abandonment of a known right or privilege.’ ” (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938))). Indeed, the Williams Court observed, “The Court of Appeals did not hold, nor do we, that under the circumstances of this case Williams could not, without notice to counsel, have waived his rights under the Sixth and Fourteenth Amendments. It only held, as do we, that he did not.” 430 U.S. at 405-06, 97 S.Ct. at 1243 (footnote omitted) (emphasis in original). Thus, the Williams Court declined the chance to fashion the prophylactic rule ultimately adopted in Jackson. vi. Administrative Effect As noted when examining Jackson’s re-troactivity to all cases, the “disruptive effect” was small. Limiting Jackson’s re-troactivity to the sentencing phase of capital cases lessens this effect even more. In addition, the Stumes Court worried “[t]hat investigation, and the possible retrial, would be hampered by problems of lost evidence, faulty memory, and missing witnesses.” 465 U.S. at 650, 104 S.Ct. at 1345. Such concern is lessened here because Fleming’s petition seeks only a new sentencing determination. Consequently, re-troactivity is favored. In conclusion, whether to apply Jackson retroactively to the facts in Fleming’s petition involves a balancing process. The qualitative difference between death and other forms of punishment, the unique role played by juries in death sentence determinations, the importance of protecting the Sixth Amendment right to counsel, and the limited disruptive effect on the administration of justice caused by retroactivity favor holding Jackson retroactive. Reliance by law enforcement officials suggests otherwise. The reliance effect, however, should not play that large a role because the Sixth Amendment aims mainly to protect an individual’s right to counsel; it does not, unlike the Fourth Amendment, aim mainly to deter police misconduct. Consequently, Jackson applies retroactively to the facts of Fleming’s petition. Jackson thus provides an intervening change in law and applies retroactively to excuse Fleming’s abuse of the writ. 2. The Merits of the Jackson Claim Fleming was arrested in the early morning hours of February 12, 1976. That day, he appeared before a Justice of the Peace, who, according to the prosecutor, advised Fleming of the three charges (robbery, kidnapping, and murder) that had been lodged against him, of his right to counsel, of his right to a committal hearing, and of other rights to which he was entitled. The Justice of the Peace set no bond. Fleming advised the Justice of the Peace that he would get his own attorney rather than have the state appoint one for him. On February 15 and 16, the police initiated interrogation and obtained the statements at issue here. As noted above, the Supreme Court held in Jackson that, “if police initiate interrogation after a defendant’s assertion, at an arraignment or similar proceeding, of his right to counsel, any waiver of the defendant’s right to counsel for that police-initiated interrogation is invalid.” 106 S.Ct. at 1411. In the present case, Kemp argues that: (1) Fleming did not assert his right to counsel, and (2) even if Fleming did assert his right to counsel, he did not assert it at an “arraignment or similar proceeding.” a. Asserting the Right In Jackson, the defendants at their arraignment had asked for counsel to be appointed for them. Kemp argues that because Fleming only said he was going to get his own attorney, Fleming did not “assert” his right to counsel. This argument is without merit. In Jackson, the Court noted that courts should “give a broad, rather than a narrow, interpretation to a defendant’s request for counsel—[courts should] presume that the defendant requests the lawyer’s services at every critical stage of the prosecution.” 106 S.Ct. at 1409. Fleming’s invocation certainly fits within this broad interpretation, especially because invoking the right to counsel indicates that the defendant recognizes that he cannot deal with his adversaries singlehandedly. b. Type of Proceeding Kemp argues that nothing in the record indicates that Fleming made any appearance before a judicial officer on February 12 except for the statement of the investigating detective who attended the proceeding. He then argues that even if a proceeding occurred, it was not a formal arraignment and thus falls outside of Jackson's holding. These arguments are also without merit. First, the detective's testimony clearly establishes that Fleming appeared before a judicial officer on February 12. (Indeed, the detective even termed the proceeding an arraignment.) Second, although Kemp is correct that formal arraignment had not occurred, Jackson's holding is not so limited. The Jackson Court focused on a time “after a formal accusation has been made —and a person who had previously been just a ‘suspect’ has become an ‘accused’ within the meaning of the Sixth Amendment.” 106 S.Ct. at 1409. Fleming’s hearing fits within Kirby’s definition of an, adverse judicial proceeding — Fleming certainly had been formally charged by the time he asserted his right to counsel before a judicial officer. Consequently, a Jackson violation occurred under the facts of Fleming’s petition. 3. Harmless Error Although a Michigan v. Jackson violation occurred, we examine whether admitting evidence attributable to that violation was harmless error. In the guilt/innocence context, the harmless error standard is whether, absent the unconstitutional conduct, it is clear beyond a reasonable doubt that the jury would have returned a verdict of guilty. United States v. Hasting, 461 U.S. 499, 510-11, 103 S.Ct. 1974, 1981, 76 L.Ed.2d 96 (1983). This standard applies to the sentencing context as well: Absent the testimony concerning the statements obtained in violation of Jackson, is it clear beyond a reasonable doubt that the jury would have returned a sentence of death? Although we hesitate to hold that the jury would have determined a death sentence absent the two statements at issue, our review of the record nonetheless leads us to that conclusion. Accordingly, we affirm the district court as to Fleming’s Michigan v. Jackson claim. We note from the outset that the statements at issue were introduced only at the penalty phase and were not introduced during the guilt phase. In addition, we note that at the resentencing on December 5-6, 1977, Fleming had already been convicted for the murder of James Edward Giddens, the police chief of Ray City, and that the sentencing jury started from the guilt phase jury’s conclusion. At the end of the resentencing, the jury unanimously made the following determination: JURY FOREMAN: We find the following aggravating circumstances, Number one, the offense of murder was committed against Police Chief James Edward Giddens, a peace officer while he was engaged in the performance of his duties. We also found Number two, the offense of murder was committed while the Defendant was engaged in the commission of another capital felony, to-wit: the kidnapping in Berrien County, Georgia and bodily injury to James Edward Giddens a human being. We recommend that the Defendant be punished by death this 6th day of December, 1977.... (Respondent’s Exhibit Number One, Volume III: 493-94). We have undertaken a careful review of Fleming’s resentencing transcript and conclude that even if the statements at issue were excluded, the jury still would have found the two aggravating circumstances quoted above. First, the statements at issue had no bearing on the aggravating circumstance of whether Giddens was murdered while he was a peace officer engaging in the performance of his duties, and even if the statements at issue had bearing on the second aggravating circumstance, testimony by Ira Bass was most damaging on this point (as well as on Fleming’s conviction for murder). Because Bass was unavailable to testify at the re-sentencing (although his probation required that he inform the State of his whereabouts), the State read Bass’s testimony from the guilt phase into evidence at the resentencing. Bass testified on direct examination as follows: A Yeah, he [Son Fleming] said that he was driving — that he was the only one that had a — any license. Q He told you that? He told you that he was the only one that had any license? A Yes, sir and he said that they ain’t nobody knew that he was in the car. Said nobody couldn’t identify him. And he said they left there and headed out towards Ray City and the police stopped him over there. He got out to talk to the policeman. There were houses around there and he said he got out to talk to the policeman and the policeman laid the license on the car to do something or other. I don’t know what he was going to do. But anyway one of the others had jumped him and the policeman tried to get his gun out and they all got — they all three got on to him then. They were all three fighting for the gun — or you know, trying to take the gun away from him. And they finally got it away and got him in the car. They started to leave there and Son had forgot his license and he went back after his license. He drove on out. He said he wasn’t sure just where he was going but they rode around some of these roads out there and come down this country lane or country road. And said they stopped and got out of the car and they had a little scuffle there. And he took the gun from Larry — the.38 and said when the police officer started to run he shot him. Said then by then the officer was in the water. (Vol. II: 284). We are left with the impression that Bass’s testimony, rather than Fleming’s statements at issue here, was critical to the jury’s determination. Second, as set forth in the appendix, the substance of the challenged February 15 statement as testified to by Agent Greeson is identical to the substance of the unchallenged February 12 statement as testified to by Detective Register and Sheriff Gas-kins. As also set forth in the appendix, the substance of the challenged February 16 statement as testified to on direct and cross examination by Detective Register and Sheriff Gaskins is identical to the substance of the unchallenged February 16 statement as testified to by Sheriff Aider-man. Consequently, our review of the record convinces us that the use of Fleming’s statements during his resentencing constituted harmless error. B. No Assistance of Counsel Fleming contends that his Sixth and Fourteenth Amendment rights were violated because he lacked assistance of counsel at his committal hearing. We affirm the district court because this claim fails as an abuse of the writ and because the prior panel of this Court did not commit “plain error” in rejecting this claim. No doubt exists that this ground was raised in Fleming’s first petition and that the decision was on the merits. Thus, abuse is excused only if the “ends of justice” so require. No doubt exists that there was a full and fair hearing on the original petition and that no intervening change in the applicable law has occurred. Fleming argues, however, that an affidavit from the probate judge presiding over Fleming’s hearing is “new evidence” (i.e., “an intervening change in the facts of the case”). This claim is without merit. No intervening change occurred; the evidence was available at the time of the first petition and Fleming should have presented it then. See Adams v. Wainwright, 804 F.2d 1526, 1534 n. 10 (11th Cir.1986) (new reports are not evidence justifying reconsideration of claim because, inter alia, they are drawn from information available at time of first petition), cert. filed (July 20, 1987); Young v. Kemp, 758 F.2d 514, 519 (11th Cir.1985) (adopting district court conclusion that “new” evidence concerned facts available before first petition filed); Henry v. Wainwright, 743 F.2d 761, 762 (11th Cir.1984) (abuse of writ where facts underlying claim were known or reasonably should have been known to defendant and his counsel years ago); Smith v. Kemp, 715 F.2d 1459, 1469 (11th Cir.) (abuse of writ precludes consideration of merits when claim is based on additional conclusions drawn from same records available to petitioner when same claim was made to and adjudicated by previous courts), cert. denied, 464 U.S. 1003, 104 S.Ct. 510, 78 L.Ed.2d 699 (1983). An exception does exist if a petitioner proffers a justifiable reason for delay in presenting the evidence. See, e.g., Henry, 743 F.2d at 762. Fleming claims that the affidavit was not provided to the district court because no issue existed as to whether Fleming had assistance until the district court determined that he had. Even if this is true, Fleming never sought to supplement the record on appeal or present the affidavit to the district court in a motion for reconsideration. Fleming also contends that this panel can reexamine the prior decision because it was in “plain error.” See Bass v. Wainwright, 675 F.2d 1204 (11th Cir.1982). The issue received full consideration before the prior panel, especially because Judge Tuttle’s dissent highlighted the opposing view. See Fleming, 748 F.2d at 1442-45. Rehearing en banc at the suggestion of a member of this Court was denied. 765 F.2d 1123 (11th Cir.1985). Finally, the Supreme Court, with Justice Marshall arguing that Fleming lacked assistance of counsel, denied certiorari. 475 U.S. 1058, 106 S.Ct. 1286, 89 L.Ed.2d 593 (1986). The Supreme Court then denied Fleming’s petition for rehearing. 475 U.S. 1132, 106 S.Ct. 1665, 90 L.Ed.2d 206 (1986). In light of the extensive consideration that this issue has already received without a change in result from the original panel opinion, we cannot say the first panel committed “plain error.” Accordingly, AFFIRMED. APPENDIX MR. BILLY REGISTER, called as a witness in behalf of the State, after first being duly sworn, testified as follows: DIRECT EXAMINATION BY MR. BAR-NICK: Q State your name, please. A Billy E. Register. Q Mr. Register, what is your employment? A Detective Captain with the Valdosta Police Department. Q All right, now what was your — you indicated that you interviewed the suspects. What were the circumstances of that interview and where was it held? A The interview was held in the Sheriffs Office in the Berrien County Courthouse. It was the morning of the 12th, the morning following the incident. Q All right now, do you recall who was present during the interview? A Sheriff Gaskins was present. There were several other people in and out of the office during the interview, sir. Q He was the only participant in the interview — is that what you’re saying? A That’s correct, sir. Q All right, would you please tell us the substance of that interview with Son Fleming? A The interview that happened that morning, sir — the story that Mr. Fleming told me was that he was in Valdosta when this incident occurred, at the home of King West, or with a gentleman named King West who lives in Valdosta. Q What else did he indicate about knowledge of the events of the night of February 11th? A At that particular morning, sir referring to the morning of February 12, he had no knowledge of what happened — that he indicated to me. Q All right. Did you have any other occasion to interview Son Fleming? A Yes, I did, sir. Q And, what was the date? A I don’t recall the date, sir, it was on the following Monday after the 12th. I believe it was the 16th, I’m not sure. Q Somewhere around the 16th, of February? A Yes, sir. Q All right, now where was that interview held? A Again, at the courthouse in Berrien County, sir. Q And, who was present during that interview? A Sheriff Gaskins and myself and Deputy Swanson, sir. Q All right now, to the interview itself, what did Son Fleming tell you? A I reduced the general gist to a typed statement. Would you like me to read that? Q Well, yes, I think it will be alright for you to read it. A The statement says that on Wednesday, February 11, 1976, around 8:30 p.m., “I Son Fleming along with my nephew Larry and another boy whom I don’t know left Moultrie in a car I had borrowed from a boy named Terry. We drove to Valdosta and then to Adele. We stopped in Adele and Larry and this other put me out of the car at a car lot on the main street and they drove off. A few minutes later they came back and picked me up and we left Adele. And they asked me where I wanted to go and I said let’s go to Waycross, Georgia. That a man over there owed me some money for a pulpwood truck that I had sold him. We drove to Ray City and as we got to Ray City the policeman stopped our car. And I got out and walked back to the front of the police car and gave the policeman my driver’s license. And he asked me if he could look in my car and I told him yes. He then got the other two boys out of the car and searched them. Then he looked in the car and he came back to the police car and told the boy I don’t know to get in the police car and the policeman grabbed the boy by the arm and started to put him in the police car and then Larry grabbed him and they tussled around the car and then Larry and the other boy put the policeman in our car. The boy I don’t know then went to the police car and turned off the blue lights and the headlights and he took the shotgun out of the police car. I drove the car and the policeman was in the middle of the front seat and the boy I don’t know was sitting on the right side in the front and Larry was sitting in the back seat. And we started off, we drove for a good piece and then the police told us he would show us how to get out of there and he told us to turn here and I turned to the right and the boy I don’t know hit the policeman after he told us just to leave him side the road and he would take care of everything since this was his last night as a policeman. We stopped the car and Larry and the other boy told the policeman to get out and Larry had the policeman’s gun and the other boy had a.22 pistol. The policeman got out of the car and started running out into a pond and Larry and the other boy were shooting at him and the policeman hollered that he was hit. Larry and the other boy then said we can’t leave him like this and they waded out in the pond and I heard some more shots. It sounded like they came from a.22 pistol. Both boys then came back to the car and we left and drove to Valdosta and we stopped at my uncle’s house and I asked him if he had any clothes that Larry could put on because he had fell in a creek and he got wet trying to get water for the car that Question: What is the specific issue in the case within the general category of "criminal - state 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 state crimes R. state offense, but specific crime not ascertained Answer:
songer_r_bus	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 "private business and its executives". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. UNITED STATES of America, Appellee, v. Jerry FASOLINO, Appellant. No. 180, Docket 78-1225. United States Court of Appeals, Second Circuit. Argued Sept. 15, 1978. Decided Oct. 30, 1978. Mark J. Mahoney, Doyle, Diebold, Bermingham, Gorman & Brown, Buffalo, N. Y., for appellant. Michael J. Keane, Dept, of Justice, Washington, D. C. (Richard J. Arcara, U. S. Atty., W.D.N.Y., Buffalo, N. Y., Jerome M. Feit, Dept. of Justice, Washington, D. C., Richard D. Endler, Sp. Atty., Buffalo Strike Force, Buffalo, N. Y., of counsel), for appellee. Before OAKES, GURFEIN and MES-KILL, Circuit Judges. PER CURIAM: Appellant argues that the proof of the crime of which he was convicted, corruptly endeavoring to influence the court or affect the due administration of justice, was insufficient. We disagree and accordingly affirm the judgment of the United States District Court for the Western District of New York, John T. Elfvin, Judge. The three elements of the crime are (1) endeavoring, (2) corruptly, (3) to influence an officer of the court or the due administration of justice. Taking the evidence in the light most favorable to the Government, as we must, each of the elements was sufficiently proven. Appellant did “endeavor” under the statute. Not once, but twice, he approached one Messina, an attorney and acquaintance of his who was also Commissioner of Jurors for Erie County, New York, and acquainted with United States District Judge Curtin, about a sentencing pending before the judge involving one Quaranta. Appellant, seeking to obtain for Quaranta probation on a mail fraud charge involving up to five years’ imprisonment, asked Messina whether he “[cjould . . . talk to the Judge, take him to lunch?,” and received the reply, “No, it’s out of the question.” At appellant’s request, however, Messina did find out from the probation office that the presentence report was favorable and reported this to appellant. Appellant then told Messina that he “should talk to the Judge and take him out to lunch”; Messina replied, “Look, I told you that’s out of the question the first time, forget it.” No one approached Judge Cur-tin in any way. Nevertheless, there was an endeavor within the statute, which is very similar to a criminal solicitation statute, see W. LaFave & A. Scott, Criminal Law § 58 (1972), and does not require proof that would support a charge of attempt. Osborn v. United States, 385 U.S. 323, 87 S.Ct. 429, 17 L.Ed.2d 394 (1966); United States v. Russell 255 U.S. 138, 41 S.Ct. 260, 65 L.Ed. 553 (1921); United States v. Rosner, 485 F.2d 1213 (2d Cir. 1973), cert, denied, 417 U.S. 950, 94 S.Ct. 3080, 41 L.Ed.2d 672 (1974). Thus, it is no defense that the putative intermediary declined to approach the judge or that the endeavor was unsuccessful. United States v. Russell, supra, 255 U.S. at 143, 41 S.Ct. 260. The crime is one that can be committed merely by words, and words are sometimes misunderstood, LaFave & Scott, supra, at 416-17; but the likelihood of a misunderstanding here was substantially removed by appellant’s repetition of the solicitation albeit phrased first as a question and later as a declaration. Appellant’s endeavor was also made “corruptly.” In response to the statement of a Government informer that he was concerned about a certain person in federal court, appellant said, “You need something in federal? What’s the guy’s name?” He then elaborated that he asked because he thought that it might be Quaranta and that as to him, “I got a guy going in to straighten that out. . . [T]his guy’s going up on the 13th for sentencing, we’re trying to get him maybe two or three years probation .... my man’s having lunch with Curtin tomorrow . . .” and that if the report were favorable his man could “[elaborate on the good.” In the course of a subsequent conversation with the informer appellant stated that he was charging only $1,000 and that the money would not be paid until sentencing because appellant had “guaranteed” two or three years’ probation. As appellant suggests in his brief, the jury could have taken this guarantee to be mere puffery, designed to impress the informant and set him up for a “sting,” because appellant’s “man” was not going to see the judge; but the jury could also have found in this statement an admission that appellant was in fact not only trying to do something for Quaranta, he was doing it for money. And Messina did go to the probation office and find out about the presentence report although what he said to the probation officer is in dispute. Whether the endeavor was “corrupt” was a question for the jury, Knight v. United States, 310 F.2d 305, 307-08 (5th Cir. 1962), under proper instructions emphasizing that the endeavor had to be “motivated by an improper purpose.” The court instructed the jury that it could find appellant’s intent to be corrupt if it determined that appellant knew that Messina had no personal knowledge about Quaranta or information relevant to his sentencing and that appellant “knew or thought that Mr. Messina had some friendship or special relationship or special association with Judge Curtin which [appellant] thought would, by itself, be persuasive with Judge Curtin” (emphasis added). We agree with the government that an endeavor to exploit such a relationship, actual or perceived, may be found to be corrupt. The appellant argues, however, that the admissions to the Government informer were not competent evidence absent corroboration that the admissions were reliable or that the crime charged was in fact committed. United States v. Marcus, 401 F.2d 563, 565 (2d Cir. 1968), cert, denied, 393 U.S. 1023, 89 S.Ct. 633, 21 L.Ed.2d 567 (1969). Independent evidence is required because it tends to make the admission reliable while helping to establish independently the other necessary elements of the offense. Smith v. United States, 348 U.S. 147, 151-59, 75 S.Ct. 194, 99 L.Ed. 192 (1954); Opper v. United States, 348 U.S. 84, 93, 75 S.Ct. 158, 164, 99 L.Ed. 101 (1954). But such corroborative evidence need not be in and of itself sufficient to establish, independent of the admission, the corpus delicti; “[i]t is sufficient if the corroboration supports the essential facts admitted sufficiently to justify a jury inference of their truth.” Id.; see also Smith v. United States, supra, 348 U.S. at 156, 75 S.Ct. 194. The corroborative evidence here meets, if by no great margin, that standard. At appellant’s request, and as appellant told the informer Messina would, Messina did in fact find out about Quaranta’s presentence report and report back to appellant on its favorability, even though Messina had no relationship whatsoever to the Quaranta case and, curiously, neither appellant nor Messina apparently ever approached Quaranta’s lawyer who probably could have given appellant the same information. In addition to being a lawyer, Messina did have an official position as a state jury commissioner which in appellant’s eyes gave Messina power; and he and appellant had a social relationship, which appellant conveyed to the informer by the phrase “my guy” or “my man.” Although Messina declined in fact to approach the judge, appellant’s repetition of his request, established by Messina’s testimony, indicated that appellant thought that Messina might do so. Finally, the evidence of the corrupt endeavor clearly shows that it was made “to influence” the judge or the due administration of justice. Appellant solicited Messina to importune the judge to impose a lenient sentence. Judgment affirmed. . 18 U.S.C. § 1503 provides in pertinent part: Whoever corruptly, or by threats or force, or by any threatening letter or communication, endeavors to influence, intimidate, or impede any . . officer in or of any court of the United States ... in the discharge of his duty, . . 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. . United States v. Fasolino, 449 F.Supp. 586 (W.D.N.Y.1978). Question: What is the total number of respondents in the case that fall into the category "private business and its executives"? Answer with a number. Answer:
songer_geniss	A	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous". UNITED STATES of America, Plaintiff-Appellee, v. William WILLIS, Defendant-Appellant. No. 84-1558. United States Court of Appeals, Sixth Circuit. Submitted Aug. 12, 1986. Decided Nov. 7, 1986. James K. Jesse (Court-appointed), Buchanan, Mich., for defendant-appellant. Joel M. Shere, U.S. Atty., Detroit, Mich., Lynn A. Helland, for plaintiff-appellee. Before JONES and KRUPANSKY, Circuit Judges, and CELEBREZZE, Senior Circuit Judge. CELEBREZZE, Senior Circuit Judge. Defendant-appellant William Willis appeals from a district court order denying his motion brought pursuant to Rule 35 of the Federal Rules of Criminal Procedure to correct the sentence the court imposed following its acceptance of his guilty plea. Willis contends on appeal that he was denied the effective assistance of counsel when entering his guilty plea, that his guilty plea was not voluntary, and that the district court should have allowed him to withdraw his plea prior to accepting it. We hold that none of Willis’ claims is properly before us on this appeal from the district court’s denial of his Rule 35 motion. Accordingly, we affirm. ■ In September, 1983, William Willis was indicted on one count of conspiracy to possess stolen mail in violation of 18 U.S.C. § 371 (1982) and five counts of possession of stolen mail in contravention of 18 U.S.C. § 1708 (1982). With the advice of appointed counsel, Willis entered into a written Rule 11 plea agreement. See Fed.R. Crim.P. 11. The agreement provided that Willis would plead guilty to one count of possession of stolen mail, that the government would move to dismiss the other five counts, and that the maximum sentence would be three years imprisonment. At a subsequent guilty plea hearing, Willis stated that the written agreement represented the plea agreement as he understood it, and that the government had made no other promises to induce his guilty plea. The district court took the agreement under advisement pending a presentence investigation. Returning to the district court for sentencing two months later, on March 23, 1984, Willis indicated that the government had promised him that the three year sentence would run concurrently with the state sentence which he was then serving. The Assistant United States Attorney at first could not recall any such promise, but then affirmatively stated that no such promise had been made. Willis requested permission to withdraw his guilty plea if the court was considering a consecutive sentence. After reviewing the Rule 11 agreement and the guilty plea hearing record, the district court determined that no agreement existed concerning concurrent sentencing. The court then accepted Willis’ guilty plea and sentenced him to three years imprisonment to be served consecutively to Willis’ state sentence. Willis took no direct appeal from this judgment, but instead, on June 8, 1984, moved the district court to correct his sentence pursuant to Fed.R.Crim.P. 35. The district court denied Willis’ Rule 35 motion on June 18,1984, and the order denying the motion was docketed on June 20, 1984. This appeal, submitted on the briefs, ensued. Before addressing Willis’ contentions, we must determine if this court has jurisdiction to hear his appeal. Since a Rule 35 motion is a part of the original criminal action, see Heflin v. United States, 358 U.S. 415, 418 n. 7, 79 S.Ct. 451, 453 n. 7, 3 L.Ed.2d 407 (1959), an appeal from the denial of such a motion is subject to the 10-day period prescribed in Fed.R. App.P. 4(b) for perfecting an appeal in a criminal action to this court. United States v. Merrifield, 764 F.2d 436, 437 (5th Cir.1985); United States v. Barney, 691 F.2d 855, 856 (8th Cir.1982). The district court’s order denying Willis’ Rule 35 motion was docketed on June 20, 1984, giving Willis until July 2, 1984 to file his notice of appeal. The clerk of the district court received a letter from Willis on July 2 which purported to be a notice of appeal. The July 2 letter did not, however, comply with the requirement of Fed.R.App.P. 3(c) that a notice of appeal “shall designate the judgment, order, or part thereof appealed from and, therefore, could have been a belated appeal from the district court’s March 23 acceptance of Willis’ guilty plea and sentencing.' After the district court clerk returned the July 2 letter to Willis for correction, it was not until July 27, 1984 that the clerk received a technically correct notice of appeal from Willis which clearly indicated that he was appealing from the district court’s denial of his Rule 35 motion. The government, in a motion to dismiss this appeal for want of jurisdiction, argues that Willis’ notice of appeal from the district court’s denial of his Rule 35 motion was not perfected until the district court clerk received the July 27 letter, thereby depriving this court of jurisdiction to hear Willis’ appeal. Resolution of this jurisdictional issue rests on the determination of whether Willis’ letter of July 2 may properly be construed as a notice of appeal from the district court’s June 18 denial of Willis’ Rule 35 motion. The federal courts of appeals have liberally construed the technical requirements for a notice of appeal contained in Fed.R. App.P. 3(c). E.g., Campbell v. Wainwright, 726 F.2d 702, 704 (11th Cir.1984); see Higginson v. United States, 384 F.2d 504, 508 (6th Cir.1967) (per curiam) (construing a corresponding provision in former Fed.R.Civ.P. 73(b)), cert. denied, 390 U.S. 947, 88 S.Ct. 1034, 19 L.Ed.2d 1137 (1968). The courts have consistently stated that failure to mention or misidentification of the ruling being appealed from does not destroy appellate jurisdiction as long as the intent to appeal is apparent and the appellee suffers no prejudice. E.g., Litchfield v. Spielberg, 736 F.2d 1352, 1355 (9th Cir. 1984), cert. denied, 470 U.S. 1052,105 S.Ct. 1753, 84 L.Ed.2d 817 (1985); Campbell, 726 F.2d at 704; C.A. May Marine Supply Co. v. Brunswick Corp., 649 F.2d 1049, 1056 (5th Cir.), cert. denied, 454 U.S. 1125, 102 S.Ct. 974, 71 L.Ed.2d 112 (1981); Peabody Coal Co. v. Local Union Nos. 1734,1508 & 1548, U.M.W., 484 F.2d 78, 81 (6th Cir. 1973). In addition, courts have been especially reluctant to enforce strictly the notice of appeal requirements when such notice is filed by a pro se appellant. E.g., Yates v. Mobile County Personnel Board, 658 F.2d 298, 299 (5th Cir. 1981) (per curiam) (pro se litigants “generally ignorant of procedural rules”); see also 8A J. Moore, Moore’s Federal Practice H 37.04[2] (2d ed. 1986) (“In dealing with pro se applications by prisoners, the coürts have generally been liberal in construing as a notice of appeal any paper indicating an intent to appeal, filed within the ten day period, even though it may omit some of the prescribed elements.”); cf. Haines v. Kemer, 404 U.S. 519, 520, 92 S.Ct. 594, 595, 30 L.Ed.2d 652 (1972) (per curiam) (pro se complaints liberally construed). Willis’ letter of July 2, filed pro se, by its very terms purported to be a notice of appeal. In addition, Willis’ July 27 letter, which clarified his July 2 letter by clearly indicating an appeal from the district court’s denial of the Rule 35 motion, further evidences Willis’ intent to appeal the Rule 35 motion denial on July 2. Finally, the government has not asserted that it would suffer prejudice by our consideration of this appeal. Under these circumstances, we conclude that Willis’ failure to specify in the July 2 letter that he was appealing from the district court’s denial of his Rule 35 motion does not deprive us of jurisdiction to hear this appeal. Accordingly, we deny the government’s motion to dismiss. Having determined that we have jurisdiction to hear this appeal, we áre nevertheless constrained to hold that the issues raised by Willis are not cognizable by this court on this appeal for two reasons. First, assuming that Willis’ Rule 35 motion to the district court could have properly raised the claims of ineffective assistance of counsel, involuntariness of his guilty plea, and error by the district court in denying him permission to withdraw his plea, his failure to first present these claims to the district court forecloses our consideration of these matters on appeal. See, e.g., United States v. Polselli, 747 F.2d 356, 357 (6th Cir.1984) (per curiam), cert denied, 469 U.S. 1196, 105 S.Ct. 979, 83 L.Ed.2d 981 (1985). Second, even if we were inclined to employ our discretion to entertain issues raised for the first time on appeal, such discretion would be improvidently utilized here because Willis’ contentions challenge the validity of his guilty plea, not the validity of his sentencing or the denial of his Rule 35 motion. Indeed, the three claims raised by Willis on appeal could not have been properly raised in a Rule 35 motion. A Rule 35 motion presupposes a valid conviction and is an inappropriate vehicle for collaterally attacking the underlying proceeding. See Gilinsky v. United States, 335 F.2d 914, 916 (9th Cir. 1964); see also Hill v. United States, 368 U.S. 424, 430, 82 S.Ct. 468, 472, 7 L.Ed.2d 417 (1962) (“the narrow function of Rule 35 is to permit correction at any time of an illegal sentence, not to re-examine errors occurring at trial or other proceedings pri- or to the imposition of sentence.” (emphasis in original)). The issues raised by Willis on this appeal are properly cognizable only on direct appeal, which Willis failed to take, or in a habeas corpus action under 28 U.S.C. § 2255 (1982), which may be pursued at any time. In light of the foregoing, while the government’s motion to dismiss for want of jurisdiction, is denied, the district court’s order denying Willis’ Rule 35 motion is AFFIRMED. . Because the tenth day fell on Saturday, June 30, 1984, Willis had until July 2, 1984 to file his notice of appeal. See Fed.R.App.P. 26(a). . Normally a court of appeals has discretion to suspend the provisions of the Federal Rules of Appellate Procedure. See Fed.R.App.P. 2. Rule 2, however, is specifically limited by Rule 26(b), which states that a court may not enlarge the time required for filing the notice of appeal. See Fed.R.App.P. 26(b); cf. Browder v. Director, Department of Corrections of Illinois, 434 U.S. 257, 264, 98 S.Ct. 556, 560, 54 L.Ed.2d 521 (1978) (limitation in Rule 4(a) is "mandatory and jurisdictional”). . Insofar as this holding may circumscribe technical compliance with Rule 3(c), we further note that Rule 2 permits the courts of appeals to suspend the application of Rule 3(c) "[i]n the interest of expediting decision, or for other good cause shown____” Fed.R.App.P. 2. . In his Rule 35 motion, Willis moved for a reduction of his sentence solely on the ground that effect should be given to the alleged representations by the government that his sentence would run concurrently with the state sentence he was already serving. 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_casetyp1_1-3-1	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 "criminal - federal offense". UNITED STATES of America, Plaintiff-Appellee, v. James M. MAHONEY, Defendant-Appellant. No. 74-1578. United States Court of Appeals, Fifth Circuit. Feb. 12, 1975. Rehearing Denied April 25, 1975. Ralph W. Rinehart, Tampa, Fla., for defendant-appellant. John L. Briggs, U. S. Atty., Jacksonville, Fla., Oscar Blasingame, Claude Ti-son, Jr., Terry Smiljanich, Asst. U. S. Attys., Tampa, Fla., for plaintiff-appel-lee. Before BROWN, Chief Judge, and BELL and MORGAN, Circuit Judges. PER CURIAM: This appeal is from a conviction on charges involving marijuana importation offenses. Appellant was one of a group charged but was given a separate trial. One principal assignment of error is that appellant was entrapped as a matter of law by the government’s use of a pilot-informer. The arrangements to import large quantities of marijuana were well underway by the time the pilot was employed. It happened that the pilot was a government informer and that the government allowed him to keep fees earned from his endeavors. The fee in this instance for flying from Tampa, Florida to Colombia, South America and return with 1,000 pounds of marijuana was $10,000 and 50 pounds of the marijuana. (The government stoutly denied "that the pilot was allowed to keep the marijuana.) ; Appellant and Geder, one of his co-in-dictees, went to Colombia with the pilot to purchase the marijuana and to transport it to Tampa. All in the group of nine were apprehended upon the return of the pilot, appellant and Geders. The only additional fact favoring appellant was the claim that he and Geders were dissuaded by the pilot from dumping the marijuana from the plane while in flight and prior to reaching Tampa. The entrapment defense was submitted to the jury as an issue. In our decision in United States v. Fink, supra, we rejected the contention of Geders that he was entrapped as a matter of law under these circumstances. Although the facts as to appellant differ to some extent, we reach the same conclusion here. We have considered and likewise find without merit the following additional assignments of error: (1) that the government was permitted to introduce hearsay testimony from a police officer as to appellant’s predisposition to commit the crimes with which he was charged; (2) that the district court refused to compel the police officer to reveal the name of his confidential informant; (3) that the police officer’s name had not been included on the government’s pretrial list of witnesses against appellant; (4) that the district court admitted hearsay testimony of a coconspirator; (5) that the district court refused to ask prospective jurors questions submitted by appellant; (6) that the district court prematurely instructed the jury during the testimony of a coconspirator; and (7) that judgment of acquittal was not granted. Affirmed. . See United States v. Fink, 5 Cir., 1974, 502 F.2d 1. The eight persons indicted with appellant included Rufus R. Surles, Jr., Tom Waddington, Michael and Fred Fink, Randy Kilgore, Stephen Patrick, David Butler, and John Geders. Michael Fink and Geders were convicted and their convictions were affirmed in the above styled case. Waddington is deceased. Kilgore and Fred Fink pleaded guilty to charges against them prior to trial. Charges against Butler and Surles were dismissed on motion of the government. 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_counsel2	D	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party UNITED STATES v. KING COAL CO. (Circuit Court of Appeals, Ninth Circuit. May 11, 1925.) No. 4401. 1. Collision <§=>73 — Moving vessel presumed in fault for collision with anchored vessel. A collision between a moving vessel and one anchored in a proper place and carrying proper anchor lights is presumptively due to the fault of the moving vessel, which has the burden of proof to show absence of negligence. 2. Collision'<§=>71 (2) — Collision between moving and anchored vessel held not shown to be due to inevitable accident. The blowing out of a fuse, causing the electrical steering gear of a submarine to become inoperative and the vessel to swing with the tide and come into collision with an anchored barge, held not to establish the defense of inevitable accident, where the vessel was suddenly put up against a strong running flood tide, throwing on the steering apparatus a load too great for the fuse to carry. Appeal from the District Court of the United States for the Southern Division of the Northern District of California; Frank H. Rudkin, Judge. Suit in admiralty for collision by the King Coal Company, owner of the barge Ruth, against the United States, owner of the submarine R-19. Decree for libelant, and the United ; States appeals. Affirmed. Suit brought under the provisions of the act of Congress approved April 16, 1920 (41 Stats, of U. S. pt. 2, p. 1467). Sterling Carr, U. S. Atty., of San Francisco, Cal., and Frank Maytham, Sp. Asst. Atty. Gen., for the United States. Ira S. Lillick, of San Francisco, Cal., for appellee. Before GILBERT, HUNT, and MORROW, Circuit Judges. MORROW, Circuit Judge. On October 11, 1918, the barge Ruth, owned by libelant, was anchored in San Francisco Bay, off the docks of-the Union Iron Works. The barge remained at this anchorage until October 18, 1918, when the submarine R-19, owned by the United States, coming down from Mare Island at about 8:45 p. m., turned into the Union Iron Works to take on supplies for San Pedro. The Ruth had the proper anchorage lights burning and the night; was clear. Objects on -the bay were normally visible. When the R-19 came within about 800 feet of the barge, at a speed of from 9 to 10 knots an hour, different commands were given by the commanding officer to reach the dock of the Union Iron Works. The navigation of the submarine resulted, in. its crashing into the barge, causing the damage for which this suit was brought. Libelant was awarded the sum of $19,179.26 for damages, together with costs. An order was entered dismissing the cross-libel, and the United States appeals. There are two defenses: First, that the barge was anchored in a forbidden area. Second, that the aeeident was unavoidable. Because of the alleged improper anchorage, a cross-libel was filed by the United States, claiming damages for injury to the submarine. This suit was brought under the provisions of the act of Congress approved April 16, 1920 (41 Stats. U. S. pt. 2, ,p. 1467). The lower court held that the testimony was not definite and not easy of comprehension as to whether the barge was anchored in the forbidden area; but the testimony did show that the barge had been anchored there for about eight days previous to the aeei-dent, and no complaint had been made by the harbor authorities. As to the second defense, the lower court held that the United States did not establish clearly that the accident was unavoidable. It is alleged in the libel that at the time of the collision between the submarine R-19 'and the barge Ruth, the latter was at anchor in San Francisco Bay off the docks of the Union Iron Works, northeast by north about 1.800 feet. In the cross-libel of the United States it is alleged that at a point about 1,200 feet off the shore from the wharves of the Union Iron Works, the submarine R-19 came upon and collided with the barge Ruth; that the latter was anchored at a point which obstructed the course of vessels landing or attempting to land at said wharves and at a point where anchorage was forbidden by the state harbor commissioners. In the answer of the United States to the libel, it is alleged that the collision of the submarine R-19 with the barge Ruth occurred at a point approximately 1,500 feet off the docks of the Union Iron Works. It is denied that the barge was at said time about 1.800 feet off of.said docks, or any greater distance off said docks than, approximately 1;500 feet. It is-alleged that when the accident occurred, the submarine R-19 was attempting to make a landing at the Union Iron Works, and in doing so, proceeded to pass above the barge Ruth, and the current helped to sweep the submarine down against said barge. The docks of the Union Iron Works are located at the southern extremity of the San Francisco water front. Between the docks of the Union Iron Works and the free and open space of waters of the bay is a strip of water, 1,500 feet wide, designated by the board of state harbor commissioners as forbidden anchorage. This strip of water extends along the water front of the harbor from Point Avisadero in a northwesterly direction to Pier No. 46. There is another strip of water 1,500 feet wide extending from the Western Pacific ferry slip, south of the Union Iron Works docks, across the Bay of San Francisco, in a northeasterly direction, to the Southern Pacific Railroad Company and the Western Pacific Railway Company training walls on the Oakland water front. This strip is also designated as forbidden anchorage. These designations by the harbor commissioners of forbidden anchorages in the harbor were authorized by section 2524 of the Political Code of the State, since superseded and jurisdiction assumed by the United States by the Act of Congress of January 28,1915, creating the Coast Guard, etc. (38 Stat. pt. 1, p. 800; Comp. St. §§ 8459%a[l]-8459%a[6]), and section 7 of the River and Harbor Act of March 4, 1915 (38 Stat. pt. 1, p. 1053 [Comp. St. § 9959a]); but the strips of such forbidden anchorages do not appear to be buoyed or otherwise marked or designated, so that their boundaries on the water are not made visible to the ordinary observer. They appear to be ascertainable mainly by directions from maps and charts with reference to objects on shore, and by the experience of pilots. The two strips^ of water designated by the harbor commissioners as forbidden anchorage passing in front of the docks of the Union Iron Works cross each other south of the Union Iron Works, leaving a triangular space of free and open water outside and between the strips of forbidden anchorage waters in front of the docks of the Union Iron Works. These free and open water spaces in the harbor of San Francisco are .now designated as anchorage areas by the Secretary of War, exercising the jurisdiction of the United States in accordance with the rules and regulations issued February 9, 1921. But as the collision here in controversy occurred -October 18, 1918, we will refer to the areas as they were then designated. Whether the barge Ruth was anchored within the free and open water of the harbor, or within the forbidden anchorage, passing immediately in front of the docks of the Union Iron Works, is exceedingly difficult to determine from the testimony; and the maps and charts are of but little assistance in fixing a definite location for the barge. When the collision occurred, the side of the submarine scraped along the anchor chain of the Ruth and ran out several fathoms. 'Subsequently, the Ruth was beached, when the anchor chain was slipped and the anchor buoyed, and evidence was introduced tending to show where the anchor was found, but the directions and distances given are not clear. There is, however, testimony tending to show that the Ruth was anchored in the free and open water of the harbor, or, as we would say now, she was anchored within an authorized anchorage area. The court below was unable to determine from the evidence and the maps and charts the location of the barge Ruth at the time of the collision. We, finding the same difficulty, resort to the more satisfactory testimony of Capt. Meyns, in command of the Merchant Towboat Company, who anchored the barge. This he did on October 11, 1918, and testified that he anchored her off the docks about 1,800 feet in open water. This would be in the open water or anchorage area, and beyond the forbidden anchorage in front of the docks of the Union Iron Works. This witness had been a captain of a tugboat in San Francisco Bay for 31 years, and had anchored more than a thousand vessels. He testified that it was a custom in the harbor of San Francisco for the harbor commissioners to notify any one when a vessel was anchored in forbidden anchorage, and compel them either to remove the vessel, or the vessel was removed by the harbor commissioners at the expense of the owner. The evidence shows that the barge remained where Capt. Meyns anchored her, without objection from the harbor commissioners, for a period of 8 days prior to the collision. There is a presumption in favor of the testimony of this witness by reason of his experience and reliability and the failure of the harbor commissioners to object to the anchorage of the Ruth. We think, in view of all the facts, the court below was right in holding that the anchorage of the barge in a forbidden area was not established by the evidence, and that no negligence can be attributed to her on ¿that account. As to the second defense, that the collision was unavoidable, Lieut. William F. Call-away, who was in command of the submarine at the time of the collision, testified: “When I arrived at a point which I considered the proper one to make the turn into the Union Iron Works, considering the entrance of the harbor and anchored craft around there, I put the rudder right and brought the vessel around 90 degrees, or possibly a little more, and our course at that time was pointing — we had the tide slightly forward of the beam, that is, we were pointing slightly up against the tide — not perpendicular to it; slightly up against the tide, just up a little.” He was asked, after having put the rudder right, what, if anything, was done with regard to switching from the engines to the motors : “A. I don’t recall just the instant of shifting from the .engines to the motors. It-was about the time of the turn. We stopped .the engines and went to the electrical motors, to better be able to maneuver the ship, as the engines will not back. “Q. Having put your rudder to the right, what, if anything, thereafter did you do with reference to the rudder? A. After we had made our right'turn and were headed on the course which I judged would best clear the traffic and carry us into the Union Iron Works, the left rudder was given in order to steady the ship on her course, and then order was given to ‘rudder amidships,’ which involved, of course, the right rudder. “Q.- What, if anything, happened after the order was given for ‘rudder amidships’ ? A. After the rudder was given amidships, I noticed that the ship was not steady, was easing off to the left; so I gave ‘right rudder.’ “Q. What, if anything, happened then? A. The ship then kept easing off to the left. Before this we had seen the barge, which-afterwards turned out to be the Ruth, and noticed that we. were easing over toward her, was the reason we had given ‘right rudder.’ “Q. ‘Right rudder’ the second time? A. Yes; that is, from amidships. After you give the ‘amidships’ you ease off to the right; in fact, she was easing toward the left, down towards the Ruth. By that time I saw that we were going to pass her closely, and I increased the speed in order to get across, and then, after I saw that the bow would clear the Ruth, I gave -the orders for ‘hard left’ in order to throw the stern away from her, but just the time we were crossing her, or right at the time, it was reported that the electric cal steering gear was inoperative, and then I gave the orders to shift to hand steering. By that time we had crossed the bow'of the Ruth and struck her anchor chain, and our stern struck her a glancing blow on ■ the bow. After passing across her, we had the hand steering put in, and we rounded the stern of the Ruth, and came- up on her starboard side, and some time during that time we shifted back to the electrical gear.” This witness testified further: “It was necessary to use the electrical steering device going in. We had to cross the bow of the Ruth, practically, to make a 9’0-degree turn, and after we entered into the Union Iron Works’ basin we had to make another 90-degree turn in order to get into, the'slip. * * • The chief electrician reported to me, as his duty required, of the fuse blown in the steering circuit.” On cross-etamination this witness said: “I can’t recall the exact speed which I gave,, but it was probably around, ór I would say,. I would judge it was around nine knots, or-ten knots, and then after I saw that the ship was easing over to the left towards the Ruth,, I increased the speed in order to pass ahead, of her more quickly.” The witness was asked: “Can you state how far you were away-from the barge Ruth when you first observed, it? A. I can’t give the distance that I was. from the barge Ruth when I first observed; her, but I observed her long before we ever-made the 90-degree turn, because we had seen ships anchored before the entrance to, the Union Iron Works, and I was observing-not only the shore line, but the vessels around: the place where I intended to go in. “Q. Can you state how far you were away-from the Ruth before it gave you any con-, cern as to the manner in which you would-maneuver your own vessel? A. I was considering the Ruth at the time I made my-right turn, because I had 'seen her before that, and we saw the vessel in front of the-entranee to the harbor, and I necessarily considered her when I made my right turn.” The witness was asked: “How do you account for the submarine-colliding with-the Ruth, then? A. The submarine collided with the Ruth due to the-steering gear becoming inoperative with left rudder on, and allowing the R-19 to gain, ground to the ieft, instead of pursuing the-course which I had contemplated pursuing.” Lieut. Leverett S. Lewis, who was the navigator and at the wheel of the submarine-at the time of the collision, testified: “When we got off the Iron Works, we-turned with the right rudder to head in to., the dock; as a usual thing, in making 90-degree turn, we use about 25 degrees right rudder. “After we had completed' the turn of approximately 90 degrees, the captain ordered left rudder, to steady her on the new course, which is customary, and I put the controller to the left, putting on the left rudder to steady, her; there was about a four-knot tide, flood tide, at this time, and after we completed the turn, a barge was noted on our port bow at anchor. “Q. That left rudder, you say, was for the purpose of steadying the submarine? A. That left rudder was for the purpose of steadying her on the new course. After a boat starts to turn, it turns very rapidly, and it is necessary to give her the opposite rudder for just a few seconds to steady her. As that happened at this time, the captain said ‘left rudder’ to steady her on the course, and then ‘rudder amidships.’ “Q. How long a time elapsed between the time of the order of ‘left rudder’ and ‘rudder amidships,’ approximately? A. Approximately five seconds. “Q. Now, about how far was the submarine from the barge at the time that order was given, ‘rudder amidships’? A. The barge was about broad on our port bow, and in such a position that it seemed we would clear her by 100 feet. “Q. What was the next maneuver? A. The captain evidently noticed at this time that the boat was starting to swing to the left, because he gave the order ‘right rudder,’ and immediately after that we noticed that the tide was setting us down on the Ruth, and the bow was not swinging to the right; and the captain then saw that although the bow of the submarine would clear the Ruth, it was possible that the stern would hit, so then he gave ‘full left rudder’ to throw the stern out, and went ahead on the motors to increase the speed. Our side scraped along the anchor chain of the Ruth and ran out several fathoms of the chain, and then the port side aft of the submarine hit the bow of the Ruth a glancing blow.” This witness was asked: “Q. What is your explanation as to the reason why this fuse blew out ? A. The only explanation I could offer is that the strong tide running at that time, the rudder was put up against the tide, and that the load was too great for the fuse to carry. The only other explanation would be defective fuse, and that very seldom happens, I believe.” Robert S. Pearson was chief electrician on the submarine R-19 at the time of the collision with the barge Ruth. He testified that he was on the bridge at that time, saying: “At that time we saw that the barge Ruth was in very close proximity to us, and the commanding officer ordered ‘hard right rudder,’ in order to be sure to clear her. x * * iji^g ru¿¿er evidently did not take, and the commanding officer, seeing that a collision might be caused, ordered ‘hard left rudder’; at that time the man in the conning tower, who was watching the indicator - — there is an indicator in the conning tower that designates by five degrees how the rudder acts — noticed that the steering gear was out of commission. The order was given to rig the hand-steering gear. Before this could be done, we raked the Ruth’s anchor chain, and our stern collided with her bow.” . This witness was asked: “What was the cause -of the refusal of the rudder to respond to the will of the operator under the command ‘right rudder’ ? A. Both fuses were blown out.” Witness was asked: “Have you ever known of a steering gear fuse to have blown out before? A. Not on the R type boats.” These three witnesses were officers of the submarine R-19, called by the United States, and the situation was clearly stated by them, aside from the discrepancy in the testimony of the commanding officer and the navigator 'as to the time when the Ruth was discovered. The barge Ruth was at anchor with her anchor lights burning. Her anchorage was not in a forbidden area. Her visibility to moving shipping was normal, and her position was discovered in time for safe navigation on the part of the submarine. The presumption is, in such a situation, that the barge at anchor, properly lighted, was not at fault, while, on the other hand, the presumption is that the moving submarine, charged with reasonable caution, was at fault, and the evidence supports this presumption. The United States contends that the collision was unavoidable, and that the commanding officer had the right to rely upon the electric steering apparatus, and that the blowing out of the fuse was an accident that could not be anticipated. Counsel for the United States contend that the facts in this case bring it within the interpretation based upon the facts of the ease of The Olympia, 61 F. 120, 9 C. G. A. 393. The collision in that case occurred when the tiller rope on the Olympia broke. The court held that the accident was caused by a latent defect in the rope which could not have been discovered by reasonable inspection; consequently, the collision was held to have been caused by an inevitable accident. But in the course of his opinion, Judge Lurton of the Circuit Court of Appeals for the Sixth Circuit makes a distinction applicable here. He said: “The defendants say, 'Our tiller rope broke, and the vessel became unmanageable, and the collision unavoidable.’ That only shows that the breaking- of the tiller rope was the cause of the collision. They must go further, and show that the cause which operated to break the tiller rope was unavoidable. The collision was but the result of the cause which produced a broken tiller rope. If that cause is not shown to be unavoidable, how can it be said that the collision was an inevitable accident? Unless the defendants can get rid of the negligence proved against them by showing the cause which broke this wheel rope, and that the result of that cause was inevitable, or by showing all the possible causes which might have produced such an effect, and then showing that the result of each one of these possible causes could not have been avoided by them, they have not met the burden of proof which rests upon them. ® Was it due to mismanagement of the steering wheel? The full force of the power of the steering engines suddenly thrown upon the steering gear might produce such a sudden strain as to snap the wheel rope. This full force could only be exerted by very suddenly putting the steering wheel hard over. If there was no necessity for putting the wheel hard over suddenly instead of slowly, and a parting was the result, negligence might well be imputed. But the evidence rebuts the theory that this was the probable cause.” Here is the distinction: “The evidence of the wheelman does not show that the wheel was put hard over, or suddenly handled in any way.” Had the commanding officer, under the circumstances disclosed in the testimony, the right to put the electric steering apparatus, controlling the rudder, up against a strong running flood tide, throwing suddenly on the apparatus a load too great for the fuse to carry? The burden is clearly upon the officers of the submarine to justify such dangerous navigation. ' The strain on the electrical apparatus should have been anticipated when too' great, a load was placed upon it. In the situation we have here presented, the doctrine-applicable is res ipsa loquitur — the situation speaks for itself — and fixes the charge of negligence upon the submarine. The decree of the District Court is affirmed. Question: What is the nature of the counsel for the respondent? A. none (pro se) B. court appointed C. legal aid or public defender D. private E. government - US F. government - state or local G. interest group, union, professional group H. other or not ascertained Answer:
songer_respond2_3_2	I	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the second listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant. John J. DONNELLY, Petitioner, v. Honorable Barrington D. PARKER et al., Respondents. No. 73-1259. United States Court of Appeals, District oi( Columbia Circuit. Aug. 21, 1973. Charles B. Sullivan, Jr., Washington, D. C., was on the petition for writ of mandamus for petitioner. Harold H. Titus, Jr., U. S. Atty., John A. Terry, and Peter R. Reilly, Asst. U. S. Attys., were on the opposition to the petition for respondent Parker. Philip N. Margolius, Washington, D. C., was on the opposition to the petition for respondent Kunz. Calvin H. Cobb, Jr., and William G. Christopher, Washington, D. C., were on the opposition for respondent Ferry & Co., Inc. Before FAHY, Senior Circuit Judge, and ROBINSON and ROBB, Circuit Judges. SPOTTSWOOD W. ROBINSON, III, Circuit Judge: This case is before the court on a petition for a writ of mandamus directing the Honorable Barrington D. Parker, a United States District Judge for the District of Columbia, to order physical and mental examination of Catherine W. Kunz, the .plaintiff named in an action brought against petitioner and another in the District Court. Judge Parker denied petitioner’s motion for the examinations, and the validity of that ruling is a subject of lively argumentation here. We find it unnecessary to enter the debate on that score for we accept the further contention that, in the circumstances presented here, the ruling is not reviewable by way of mandamus. We accordingly deny the writ. I Petitioner is an attorney practicing in the District of Columbia. He was joined as a party defendant in a suit filed in the name of Mrs. Kunz, a former client. The complaint therein alleges that petitioner caused an unauthorized disposition to be made of securities owned by Mrs. Kunz, and it seeks a return of the securities or damages. Petitioner defends on the ground that Mrs. Kunz gave him ownership of the securities in partial payment of a fee for services rendered in her behalf. Petitioner also says that Mrs. Kunz was satisfied with the services, and that she is not the moving spirit behind the litigation. In fact, asserts petitioner, subsequent to completion of the services, her health deteriorated to the point that she lacked capacity to bring the action. That Mrs. Künz has been victimized by sudden and serious illness is conceded. The discord, rather, is over the condition in which the illness has left her and its impact upon the proceeding. The dispute ripened for judicial consideration when petitioner gave notice that he would take Mrs. Kunz’ deposition. Her counsel then moved for an order barring that activity on the ground that she was “unable to withstand the rigors of a deposition and is further in such a state of mental and physical debility that she is unable at the present time to answer questions concerning this matter.” The .motion was supported by the affidavit of Mrs. Kunz’ attending physician stating that she “is not physically or mentally able to undergo an oral deposition and may not be fit to do so for some time to come.” The affidavit added that Mrs. Kunz “is approximately 76 years old and the rigors of an oral deposition at this time would endanger her health and life.” Judge Parker granted the motion, and the deposition was thus precluded. Promptly thereafter, petitioner filed his own motion for an order directing physical and mental examinations of Mrs. Kunz. The motion warned that in the event that the examinations disclosed mental disability, petitioner would move to dismiss the lawsuit as spurious. The motion was accompanied by petitioner’s affidavit stating his belief that the suit had been filed without Mrs. Kunz’ authority. The motion was opposed on grounds that Mrs. Kunz’ physical-mental condition was not in controversy, and that good cause for the examinations had not been shown. The opposition also claimed that Mrs. Kunz was competent when she obtained counsel and authorized him to sue. Judge Parker denied the motion and petitioner, now invoking the All Writs Act, seeks relief at the hand of this court. II As the Supreme Court admonishes, “[t]he peremptory writ of mandamus has traditionally been used in the federal courts only ‘to confine an inferi- or court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so.’ ” That is not to say, however, that every jurisdictional excess or omission will support a call for mandamus against a federal judge. For “[w]hile the courts have never confined themselves to an arbitrary and technical definition of ‘jurisdiction,’ it is clear that only exceptional circumstances amounting to a judicial ‘usurpation of power’ will justify the invocation of this extraordinary remedy.” And while in an unusual case mandamus may lie to enforce the performance of a judicial responsibility, it is well settled that it cannot be used as a substitute for appeal. The proponent of mandamus has “the burden of showing that [his] right to issuance of the writ is ‘clear and indisputable.’ ” Plainly, in the case at bar, the District Judge did not exceed his jurisdiction — in any real sense of the word. Capacity of an individual, not acting in a representative character, to sue or be sued in the federal courts is ordinarily to be determined by the law of his domicile. The record before us does not permit a satisfactory conclusion as to where Mrs. Kunz is domiciled or, of course, as to just what her mentality may be, but these matters are of little moment to jurisdiction. If by the law of her domicile she can sue irrespective of actual mental incompetence, she may do so in any federal court. But even if the domiciliary law undertook to withdraw that attribute because of mental disability, litigation of her rights in the District Court is still to be governed by Federal Civil Rule 17(c). That rule provides that “[t]he court shall appoint a guardian ad litem for an . incompetent person not otherwise represented in an action or shall make such other order as it deems proper for the protection of the . . . incompetent person.” So, state law may confer but not deny capacity to sue or defend federally, and the only effect of a party’s incompetence upon maintenance of the action is the possible need for appointment of a guardian ad litem or entry of a protective order. In no event is federal jurisdiction to entertain the cause diminished. Ill The only other claim open to petitioner was that the circumstances put Judge Parker under a duty to issue the examinatorial order sought. The evidence of the poor state of Mrs. Kunz’ health could, on petitioner’s challenge, have presented the occasion for an inquiry into her capacity to understand the meaning and effect of the litigation being prosecuted in her name. Beyond that, despite the earlier ruling adverse to petitioner’s effort to depose Mrs. Kunz, he was entitled to a fair opportunity to contest the affidavit averring that an attempt to do so would be unwise. And surely a court-ordered physical-mental examination of Mrs. Kunz, conducted under appropriate safeguards, might have developed important information to serve both of those purposes, and thus to materially advance the progress of the suit toward a final judgment on the merits. In the present procedural posture of the case, however, these considerations are beside the point. They do not survive the threshold question whether the contested ruling can now be reviewed in a mandamus proceeding or whether review must await the District Court’s final disposition. As the Supreme Court has observed, “[a] 11 our jurisprudence is strongly colored by the notion that appellate review should be postponed, except in certain narrowly defined circumstances, until after final judgment has been rendered by the trial court.” Mandamus “does not ‘run the gauntlet of reversible errors’ ” ; it “may not be used to thwart the congressional policy against piecemeal appeals.” Only where an appeal can promise no more than “a clearly inadequate remedy” may the remedy of mandamus be resorted to. The order denying the examinations, and foreclosing the discovery which petitioner sought thereby, was interlocutory and nonappealable. The cases denying review of discovery orders by mandamus are legion. Petitioner has not shown, nor are we able to perceive, any peculiar circumstance which would set this case apart as truly unusual. On the contrary, the most that can be urged is that Judge Parker erred in applying the standards for physical-mental examinations to the situation displayed, and mandamus simply does not reach to such an error. The question is not whether petitioner can obtain review of the ruling on the examination issue, but whether he can do so now. Should petitioner’s defensive efforts in the District Court prove to be ultimately unsuccessful, he can litigate that ruling, if unchanged, on an appeal from the final judgment. No rights will be jeopardized, no irreparable injury will be suffered, nor will any position be irreversibly compromised. To be sure, petitioner may incur added expense, encounter added delay and perhaps even be subjected to an unnecessary trial, but “that inconvenience is one which we must take it Congress contemplated in providing that only final judgments should be reviewable.” In sum, “[t]he peremptory common-law writs are among the most potent weapons in the judicial arsenal,” and “[a]s extraordinary remedies, they are reserved for. really extraordinary causes.” The case before us is not of that character. The writ of mandamus which petitioner seeks must accordingly be denied. Writ denied. . But see text infra at notes 13-19. . “When the mental or physical condition (including the blood group) of a party, or of a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a physician or to produce for examination the person in his custody or legal control. The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made.” Fed.R.Civ.P. 35(a). . See note 2, supra. See also Schlagenhauf v. Holder, 379 U.S. 104, 116-122, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964). . Counsel filed in the District Court an affidavit stating that Mrs. Kunz, while lucid, had personally appeared in his office and affirmed the allegations on which the suit is founded. Counsel’s theory is that notwithstanding her subsequent illness, he had full authority to proceed in her behalf. But see note 20, infra. . “The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” 28 U.S.C. § 1651(a) (1970). . Petitioner joined Mrs. Kunz and his code-fendant with Judge Parker as corespondents to the petition for mandamus. He now asks for an order requiring counsel for Mrs. Kunz to show his authority to represent her here. The cornerstone of this request is the premise which is basic to petitioner’s bid for mandamus — that Mrs. Kunz may be mentally incompetent — and from this petitioner argues that if in fact she is incompetent, her counsel’s authority has terminated. See note 20, infra. We have undoubted power to require counsel before us to demonstrate their authority, e. g., Pueblo of Santa Rosa v. Fall, 273 U.S. 315, 319, 47 S.Ct. 361, 71 L.Ed. 658 (1927), but the circumstances militate against an exercise of discretion to require it here. Mrs. Kunz’ physical-mental condition remains a burning issue in the District Court; indeed, it may be the pivot upon which much of the case on the merits will turn. That court is the forum in which a resolution of the issue should be undertaken in the first instance. Moreover, this court is not equipped to embark upon the kind of evidentiary exploration which a controversy of this sort obviously demands. Counsel should be permitted to continue his representation, both here and in the District Court, until the question can suitably be determined there. . Will v. United States, 389 U.S. 90, 95, 88 S.Ct. 269, 19 L.Ed.2d 305 (1967), quoting Roche v. Evaporated Milk Ass’n, 319 U.S. 21, 26, 63 S.Ct. 938, 87 L.Ed. 1185 (1943). See, to the same effect, Schlagenhauf v. Holder, supra note 3, 379 U.S. at 109-110, 85 S.Ct. 234; Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 382, 74 S.Ct. 145, 98 L.Ed. 106 (1953). . Will v. United States, supra note 7, 389 U.S. at 95, 88 S.Ct. at 273, quoting De Beers Consol. Mines v. United States, 325 U.S. 212, 217, 65 S.Ct. 1130, 89 L.Ed. 1566 (1945). See, to the same effect, Ex parte Fahey, 332 U.S. 258, 260, 67 S.Ct. 1558, 91 L.Ed. 2041 (1947). . E. g., McClellan v. Carland, 217 U.S. 268, 279-282, 30 S.Ct. 501, 54 L.Ed. 762 (1910) (refusal to proceed with case) ; In re Winn, 213 U.S. 458, 465-468, 29 S.Ct. 515, 53 L. Ed. 873 (1909) (refusal to remand case) ; In re Grossmayer, 177 U.S. 48, 49-50, 20 S.Ct. 535, 44 L.Ed. 665 (1900) (refusal to take jurisdiction) ; Ex parte Schollenberger, 96 U.S. (6 Otto) 369, 374-378, 24 L.Ed. 853 (1878) (refusal to take jurisdiction) ; Stafford v. Union Bank, 58 U.S. (17 How.) 275, 283-284, 15 L.Ed. 101 (1854) (refusal to issue execution) ; Life & Fire Ins. Co. v. Wilson, 33 U.S. (8 Pet.) 291, 301-304, 8 L. Ed. 949 (1834) (refusal to sign judgment) ; Yablonski v. UMW, 147 U.S.App.D.C. 193, 195, 454 F.2d 1036, 1038 (1971), cert, denied, 406 U.S. 906, 92 S.Ct. 1609, 31 L.Ed. 2d 816 (1972) (refusal to follow mandate). . See discussion in text infra at notes 23-26. . Bankers Life & Cas. Co. v. Holland, supra note 7, 346 U.S. at 384, 74 S.Ct. at 148, quoting United States v. Duell, 172 U.S. 576, 582, 19 S.Ct. 286, 43 L.Ed. 559 (1899). Accord, Will v. United States, supra note 7, 389 U.S. at 96, 88 S.Ct. 269. . As the Court stated in Will v. United States, supra note 7, 389 U.S. at 98 n. 6, 88 S.Ct. at 275, it will not do “to argue that a judge has no ‘power’ to enter an erroneous order. Acceptance of this semantic fallacy would undermine the settled limitations upon the power of an appellate court to review interlocutory orders. Neither ‘jurisdiction’ nor ‘power’ can be said to ‘run the gauntlet of reversible errors.’ Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 382, 74 S.Ct. 145, 147 [98 L.Ed. 106] (1953). Courts faced with petitions for the peremptory writs must be careful lest they suffer themselves to be misled by labels such as ‘abuse of discretion’ and ‘want of power’ into interlocutory review of nonappealable orders on the mere ground that they may be erroneous.” . Fed.R.Civ.P. 17(b). See Slade v. Louisiana Power & Light Co., 418 F.2d 125, 126 • (5th Cir. 1969), cert, denied, 397 U.S. 1007, 90 S.Ct. 1233, 25 L.Ed.2d 419 (1970) ; Brimhall v. Simmons, 338 F.2d 702, 706 (6th Cir. 1964) ; Redditt v. Hale, 184 F.2d 443, 447 (8th Cir. 1950) ; 6 C. Wright & A. Miller, Federal Practice § 1571 (1971). But see Fallat v. Gouran, 220 F.2d 325, 328-329 (3d Cir. 1955). . Seemingly, the point has not been directly litigated in the District Court. . Bengtson v. Travelers Indem. Co., 132 , F.Supp. 512, 517 (W.D.La.1955), aff’d, 231 F.2d 263 (5th Cir. 1956) ; First Nat’l City Bank v. Gonzalez & Co. Sucr. Corp., 308 F.Supp. 596, 600 (D.Puerto Rico 1970) ; 6 C. Wright & A. Miller, Federal Practice § 1571 (1971). See also Hanna v. Plumer, 380 U.S. 460, 469—474, 85 S.Ct. 1136, 14 L. Ed.2d 8 (1965) ; Constantine v. Southwestern Louisiana Institute, 120 F.Supp. 417, 418—419 (W.D.La.1954). . “Whenever an infant or incompetent person has a representative, such as a general guardian, committee, conservator, or other like fiduciary, the representative may sue or defend on behalf of the infant or incompetent person. If an infant or incompetent person does not have a duly appointed representative he may sue by his next friend or guardian ad litem. The court shall appoint a guardian ad litem for an infant or incompetent person not otherwise represented in an action or shall make such other order as it deems proper for the protection of the infant or incompetent person.” Fed.R.Civ. P. 17(e). . See authorities cited supra notes 13, 15. . See Roberts v. Ohio Cas. Ins. Co., 256 F.2d 35, 38-39, 68 A.L.R.2d 747 (5th Cir. 1958) ; United States v. Noble, 269 F.Supp. 814, 815 (E.D.N.Y.1967). . See New Mexico Veterans’ Serv. Comm’n v. United Van Lines, 325 F.2d 548, 550 (10th Cir. 1963). See also Till v. Hartford Accident & Indem. Co., 124 F.2d 405, 408-409 (10th Cir. 1941) ; Rutland v. Sikes, 203 F.Supp. 276, 277 (E.D.S.C.), aff’d, 311 F.2d 538 (4th Cir. 1962), cert, denied, 374 U.S. 830, 83 S.Ct. 1871, 10 L.Ed.2d 1053 (1963). . As we have said, Fed.R.Civ.P. 17 (c) directs district courts to either appoint guardians ad litem or fashion protective orders for incompetent persons not otherwise represented. See text supra at notes 15-19. Moreover, insanity or other severe mental difficulty of a client may operate to suspend or terminate a preexisting attorney-client relationship. See Sullivan v. Dunne, 198 Cal. 183, 244 P. 343, 346 (1926) ; Evans v. York, 217 S.W.2d 749, 751 (Ct.App.Mo. 1949) ; Merritt v. Merritt, 27 App.Div. 208, 50 N.Y.S. 604, 605-608 (1898). See also Jackson v. Hall, 139 Kan. 832, 836, 32 P.2d 1055, 1057 (1934) ; Lewis v. Commissioner of Banks, 286 Mass. 570, 575, 190 N.E. 790, 791 (1934) ; Restatement (Second) of Agency § 122(1) (1958). Cf. Kimmie v. Terminal R. Ass’n, 344 Mo. 412, 126 S.W.2d 1197, 1200 (1939). . A physically and mentally-able litigant bears obligation to respond to an effort by his adversary to obtain deposition-discovery of unprivileged information relevant to the subject matter in suit. Fed.R.Civ.P. 30(a), 36(b). . See Bodnar v. Bodnar, 441 F.2d 1103, 1104 (5th Cir.), cert, denied, 404 U.S. 913, 92 S.Ct. 232, 30 L.Ed.2d 186 (1971). See also Smith v. United States, 174 F.Supp. 828 (S.D.Cal.), appeal dismissed, 272 F.2d 228 (9th Cir. 1959), cert, denied, 362 U.S. 954, 80 S.Ct. 868, 4 L.Ed.2d 871 (1960). . Will v. United States, supra note 7, 389 U.S. at 96, 88 S.Ct. at 274, 19 L.Ed.2d 305. See also 28 U.S.C. §§ 1291, 1292 (1970) ; Cobbledick v. United States, 309 U.S. 323, 326, 60 S.Ct. 540, 84 L.Ed. 783 (1940). “This general policy against piecemeal appeals takes on added weight in criminal cases,” Will v. United States, supra note 7, 389 U.S. at 96, 88. S.Ct. at 274, but undeniably the policy retains its potency in civil litigation. . Will v. United States, supra note 7, 389 U.S. at 104, 88 S.Ct. at 278, quoting Bankers Life & Cas. Co. v. Holland, supra note 7, 346 U.S. at 382, 74 S.Ct. 145, 98 L.Ed. 106. . Parr v. United States, 351 U.S. 513, 520 521, 76 S.Ct. 912, 917, 100 L.Ed. 1377 (1956). Accord, Bankers Life & Cas. Co. v. Holland, supra note 7, 346 U.S. at 382-383, 74 S.Ct. 145; Ex parte Fahey, supra note 8, 332 U.S. at 260, 67 S.Ct. 1558, 91 L.Ed. 2041; Roche v. Evaporated Milk Ass’n, supra note 7, 319 U.S. at 25, 30, 63 S.Ct. 938, 87 L.Ed. 1185. . Bankers Life & Cas. Co. v. Holland, supra note 7, 346 U.S. at 385, 74 S.Ct. 145; Ex parte Fahey, supra note 8, 332 U.S. at 260, 67 S.Ct. 1558. . Compare English v. Cunningham, 108 U. S.App.D.C. 356, 357, 282 F.2d 839, 840 (1960) ; Pauls v. Secretary of Air Force, 457 F.2d 294, 298 (1st Cir. 1972) ; American Express Warehousing, Ltd. v. Trans-america Ins. Co., 380 F.2d 277, 281-282 (2d Cir. 1967) ; Borden Co. v. Sylk, 410 F.2d 843, 845, 846 (3d Cir. 1969) ; Gosa v. Securities Investment Co., 449 F.2d 1330, 1332-1333 (5th Cir. 1971) ; Zalatuka v. Metropolitan Life Ins. Co., 108 F.2d 405, 406-407 (7th Cir. 1939). There are exceptions, not applicable here, to the rule of nonappeala-bility, E. g., Westinghouse Elec. Corp. v. City of Burlington, 122 U.S.App.D.C. 65, 68-69, 351 F.2d 762, 765-766 (1965) ; Diaz v. Southern Drilling Corp., 427 F.2d 1118, 1122-1123 (5th Cir.), cert, denied, Trefina A. G. v. United States, 400 U.S. 878, 91 S. Ct. 118, 27 L.Ed.2d 115 (1970). . American Express Warehousing, Ltd. v. Transamerica Ins. Co., supra note 27, 380 F.2d at 283-284; Belships Co., Ltd. Skibs A/S v. Republic of France, 184 F.2d 119 (2d Cir. 1950) ; Bank Line, Ltd. v. United States, 163 F.2d 133, 136, 137 (2d Cir. 1947) ; Byram Concretanks, Inc. v. Meaney, 286 F.2d 170, 171 (3rd Cir. 1961) ; National Bondholders Corp. v. McClintic, 99 F.2d 595, 598-599 (4th Cir. 1938) ; In re Illinois Cent. R.R., 192 F.2d 465, 466 (5th Cir. 1951) ; Chemical § Indus. Corp. v. Druffel, 301 F.2d 126, 129 (6th Cir. 1962) ; Fisher v. Delehant, 250 F.2d 265, 269-270 (8th Cir. 1957) ; Belfer v. Pence, 435 F.2d 121, 122-123 (9th Cir. 1970) ; Paramount Film Distrib. Corp. v. Civic Center Theatre, 333 F.2d 358, 360-361 (10th Cir. 1964)See also C. Wright, The Doubtful Omniscience of Appellate Courts, 41 Minn.L.Rev. 751, 775-76 (1957) ; P. Carrington, The Power of District Judges and the Responsibility of Courts of Appeal, 3 Ga.L.Rev. 507, 513 (1969). See, however, Los Angeles Brush Mfg. Corp. v. James, 272 U.S. 701, 47 S.Ct. 286, 71 L.Ed. 481 (1927), and Ex parte Uppercu, 239 U.S. 435, 36 S.Ct. 140, 60 L.Ed. 368 (1915), in each of which the Supreme Court ordered a writ of mandamus directed to a district court in the exercise of the power it formerly possessed to issue “writs of mandamus in cases, . . . warranted by the principles and usages of law, to any courts appointed . . . under the authority of the United States.” Judiciary Act of 1789, 1 Stat. 81; Act of March 3, 1911, ch. 231, 36 Stat. 1156. This power continued until passage of the Act of June 25, 1948, ch. 646, 62 Stat. 944, 28 U.S.C. § 1651 (1970), by which the authority of all federal courts is now limited to “writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law” (emphasis supplied). See In re Josephson, 218 F.2d 174, 177-179 (1st Cir. 1954). As that case warns, [D]ecisions of the Supreme Court of the United States, at least prior to 1948, supporting the issuance, by that Court, of a writ of mandamus directed to a lower federal court, may not safely be relied upon by an intermediate court of appeals as authority for the issuance by the latter court of a writ of mandamus directed to a district court within the circuit. The reason is that the Supreme Court might have been exercising a different sort of power from the strictly auxiliary power given to us under the all writs section. 218 F.2d at 179 (emphasis in original). See also La Buy v. Howes Leather Co., 352 U.S. 249, 265-266, 77 S.Ct. 309, 1 L.Ed.2d 290 (1957) (dissenting opinion). . We recognize that petitioner’s arguments encompass the contention that the rulings complained of impinged on Fed.R.Civ.P. 17(c) and 35(a). See notes 2, 16, supra. While a pattern of noncompliance with the federal rules may warrant an invocation of mandamus, La Buy v. Howes Leather Co., supra note 28, 352 U.S. at 257-258, 77 S.Ct. 309; see also Will v. United States, supra note 7, 389 U.S. at 99-100, 102-104, 88 S. Ct. 269; Los Angeles Brush Mfg. Corp. v. James, supra note 28, 272 U.S. at 706, 47 S.Ct. 286; cf. McCullough v. Cosgrave, 309 U.S. 634, 60 S.Ct. 703, 84 L.Ed. 992 (1940), the Court has made it clear that La Buy “is simply inapposite where there is no showing of a persistent, disregard of the federal rules.” Will v. United States, supra note 7, 389 U.S. at 104 n. 14, 88 S.Ct. at 278. We are advertent, too, to Schleganhauf v. Holder, supra note 3, where the Court held that mandamus was appropriately used to review a district court order subjecting a defendant in a civil case to physical and mental examinations. The Court rested its holding on the presence of “the basic, undecided question of whether a district court could order the mental or physical examination of a defendant,” 379 U.S. at 110, 85 S. Ct. at 238, 13 L.Ed.2d 152, and, quite significantly, stated: This is not to say, however, that, following the setting of guidelines in this opinion, any future allegation that the District Court was in error in applying these guidelines to a particular case makes mandamus an appropriate remedy. The writ of mandamus is not to be used when ‘the most that could be claimed is that the district courts have erred in ruling on matters within their jurisdiction.’ Parr v. United States, 351 U.S. 513, 520, 76 S.Ct. 912, 917, 100 L.Ed. 1377; see Bankers Life & Casualty Co. v. Holland, supra, at 382. 379 U.S. at 112, 85 S.Ct. at 239. See also Will v. United States, supra note 7, 389 U. S. at 104-105 n. 14, 88 S.Ct. 269. . Will v. United States, supra note 7, 389 U.S. at 104, 88 S.Ct. 269; Schleganhauf v. Holder, supra note 3, 379 U.S. at 112, 85 S.Ct. 234; Parr v. United States, supra note 25, 351 U.S. at 520-521, 76 S.Ct. 912; Roche v. Evaporated Milk Ass’n, supra note 7, 319 U.S. at 30, 63 S.Ct. 938. See also note 29, supra. . Compare Texaco, Inc. v. Borda, 383 F.2d 607, 608-610 (3d Cir. 1967) (order denying leave to depose 71-year-old witness) ; Har-tley Pen Co. v. United States Dist. Ct., 287 F.2d 324, 328-332 (9th Cir. 1961) (order requiring disclosure of trade secrets). . Investment Properties Int’l, Ltd. v. IOS Ltd., 459 F.2d 705, 707, 708 (2d Cir. 1972) (order vacating notices of taking of depositions, virtually precluding discovery of facts on which jurisdiction and standing depended). Compare discussion in text supra at notes 13-19. . Compare United States v. Hemphill, 369 F.2d 539, 543-544 (4th Cir. 1966) (risk of contempt citation). . Roche v. Evaporated Milk Ass’n, supra note 7, 319 U.S. at 30, 63 S.Ct. at 943. Accord, Bankers Life & Cas. Co. v. Holland, supra note 7, 346 U.S. at 382-383, 74 S.Ct. 145, 98 L.Ed. 106; United States Alkali Export Ass’n v. United States, 325 U.S. 196, 202-203 (1945). See also Will v. United States, supra note 7, 389 U.S. at 97 n. 5. “In strictly circumscribing piecemeal appeal, Congress must have realized that in the course of judicial decision some interlocutory orders might be erroneous.” Bankers Life & Cas. Co. v. Holland, supra note 7, 346 U.S. at 383, 74 S.Ct. at 148. . Will v. United States, supra note 7, 389 U.S. at 107, 88 S.Ct. at 280, 19 L.Ed.2d 305. Accord, Ex parte Fahey, supra note 8, 332 U.S. at 259, 67 S.Ct. 1558. . Ex parte Fahey, supra note 8, 332 U.S. at 260, 67 S.Ct. at 1559. Accord, Will v. United States, supra note 7, 389 U.S. at 107, 88 S.Ct. 269; Parr v. United States, supra note 25, 351 U.S. at 520, 76 S.Ct. 912. Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Which category of federal government agencies and activities best describes this litigant? A. cabinet level department B. courts or legislative C. agency whose first word is "federal" D. other agency, beginning with "A" thru "E" E. other agency, beginning with "F" thru "N" F. other agency, beginning with "O" thru "R" G. other agency, beginning with "S" thru "Z" H. Distric of Columbia I. other, not listed, not able to classify Answer:
sc_jurisdiction	A	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. Clyde REED, et al., Petitioners v. TOWN OF GILBERT, ARIZONA, et al. No. 13-502. Supreme Court of the United States Argued Jan. 12, 2015. Decided June 18, 2015. David A. Cortman, Lawrenceville, GA, for Petitioners. Eric J. Feigin, Washington, DC, for the United States as amicus curiae, by special leave of the Court, supporting neither party. Philip W. Savrin, Atlanta, GA, for Respondents. Kevin H. Theriot, Jeremy D. Tedesco, Alliance Defending Freedom, Scottsdale, AZ, David A. Cortman, Counsel of Record, Rory T. Gray, Alliance Defending Freedom, Lawrenceville, GA, for Petitioner. Philip W. Savrin, Counsel of Record, Dana K. Maine, William H. Buechner, Jr., Freeman Mathis & Gary, LLP, Atlanta, GA, for Respondents. Opinion Justice THOMASdelivered the opinion of the Court. The town of Gilbert, Arizona (or Town), has adopted a comprehensive code governing the manner in which people may display outdoor signs. Gilbert, Ariz., Land Development Code (Sign Code or Code), ch. 1, § 4.402 (2005).The Sign Code identifies various categories of signs based on the type of information they convey, then subjects each category to different restrictions. One of the categories is "Temporary Directional Signs Relating to a Qualifying Event," loosely defined as signs directing the public to a meeting of a nonprofit group. § 4.402(P). The Code imposes more stringent restrictions on these signs than it does on signs conveying other messages. We hold that these provisions are content-based regulations of speech that cannot survive strict scrutiny. I A The Sign Code prohibits the display of outdoor signs anywhere within the Town without a permit, but it then exempts 23 categories of signs from that requirement. These exemptions include everything from bazaar signs to flying banners. Three categories of exempt signs are particularly relevant here. The first is "Ideological Sign[s]." This category includes any "sign communicating a message or ideas for noncommercial purposes that is not a Construction Sign, Directional Sign, Temporary Directional Sign Relating to a Qualifying Event, Political Sign, Garage Sale Sign, or a sign owned or required by a governmental agency." Sign Code, Glossary of General Terms (Glossary), p. 23 (emphasis deleted). Of the three categories discussed here, the Code treats ideological signs most favorably, allowing them to be up to 20 square feet in area and to be placed in all "zoning districts" without time limits. § 4.402(J). The second category is "Political Sign[s]." This includes any "temporary sign designed to influence the outcome of an election called by a public body." Glossary 23.The Code treats these signs less favorably than ideological signs. The Code allows the placement of political signs up to 16 square feet on residential property and up to 32 square feet on nonresidential property, undeveloped municipal property, and "rights-of-way." § 4.402(I).These signs may be displayed up to 60 days before a primary election and up to 15 days following a general election. Ibid. The third category is "Temporary Directional Signs Relating to a Qualifying Event." This includes any "Temporary Sign intended to direct pedestrians, motorists, and other passersby to a 'qualifying event.' " Glossary 25 (emphasis deleted). A "qualifying event" is defined as any "assembly, gathering, activity, or meeting sponsored, arranged, or promoted by a religious, charitable, community service, educational, or other similar non-profit organization." Ibid.The Code treats temporary directional signs even less favorably than political signs.Temporary directional signs may be no larger than six square feet. § 4.402(P). They may be placed on private property or on a public right-of-way, but no more than four signs may be placed on a single property at any time. Ibid. And, they may be displayed no more than 12 hours before the "qualifying event" and no more than 1 hour afterward. Ibid. B Petitioners Good News Community Church (Church) and its pastor, Clyde Reed, wish to advertise the time and location of their Sunday church services. The Church is a small, cash-strapped entity that owns no building, so it holds its services at elementary schools or other locations in or near the Town. In order to inform the public about its services, which are held in a variety of different locations, the Church began placing 15 to 20 temporary signs around the Town, frequently in the public right-of-way abutting the street. The signs typically displayed the Church's name, along with the time and location of the upcoming service. Church members would post the signs early in the day on Saturday and then remove them around midday on Sunday. The display of these signs requires little money and manpower, and thus has proved to be an economical and effective way for the Church to let the community know where its services are being held each week. This practice caught the attention of the Town's Sign Code compliance manager, who twice cited the Church for violating the Code. The first citation noted that the Church exceeded the time limits for displaying its temporary directional signs. The second citation referred to the same problem, along with the Church's failure to include the date of the event on the signs. Town officials even confiscated one of the Church's signs, which Reed had to retrieve from the municipal offices. Reed contacted the Sign Code Compliance Department in an attempt to reach an accommodation. His efforts proved unsuccessful. The Town's Code compliance manager informed the Church that there would be "no leniency under the Code" and promised to punish any future violations. Shortly thereafter, petitioners filed a complaint in the United States District Court for the District of Arizona, arguing that the Sign Code abridged their freedom of speech in violation of the First and Fourteenth Amendments. The District Court denied the petitioners' motion for a preliminary injunction. The Court of Appeals for the Ninth Circuit affirmed, holding that the Sign Code's provision regulating temporary directional signs did not regulate speech on the basis of content. 587 F.3d 966, 979 (2009). It reasoned that, even though an enforcement officer would have to read the sign to determine what provisions of the Sign Code applied to it, the " 'kind of cursory examination' " that would be necessary for an officer to classify it as a temporary directional sign was "not akin to an officer synthesizing the expressive content of the sign." Id.,at 978. It then remanded for the District Court to determine in the first instance whether the Sign Code's distinctions among temporary directional signs, political signs, and ideological signs nevertheless constituted a content-based regulation of speech. On remand, the District Court granted summary judgment in favor of the Town. The Court of Appeals again affirmed, holding that the Code's sign categories were content neutral. The court concluded that "the distinctions between Temporary Directional Signs, Ideological Signs, and Political Signs... are based on objective factors relevant to Gilbert's creation of the specific exemption from the permit requirement and do not otherwise consider the substance of the sign." 707 F.3d 1057, 1069 (C.A.9 2013). Relying on this Court's decision in Hill v. Colorado,530 U.S. 703, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000), the Court of Appeals concluded that the Sign Code is content neutral. 707 F.3d, at 1071-1072. As the court explained, "Gilbert did not adopt its regulation of speech because it disagreed with the message conveyed" and its "interests in regulat[ing] temporary signs are unrelated to the content of the sign." Ibid.Accordingly, the court believed that the Code was "content-neutral as that term [has been] defined by the Supreme Court." Id.,at 1071. In light of that determination, it applied a lower level of scrutiny to the Sign Code and concluded that the law did not violate the First Amendment. Id.,at 1073-1076. We granted certiorari, 573 U.S. ----, 134 S.Ct. 2900, 189 L.Ed.2d 854 (2014), and now reverse. II A The First Amendment, applicable to the States through the Fourteenth Amendment, prohibits the enactment of laws "abridging the freedom of speech." U.S. Const., Amdt. 1. Under that Clause, a government, including a municipal government vested with state authority, "has no power to restrict expression because of its message, its ideas, its subject matter, or its content." Police Dept. of Chicago v. Mosley,408 U.S. 92, 95, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972). Content-based laws-those that target speech based on its communicative content-are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests. R.A.V. v. St. Paul,505 U.S. 377, 395, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992);Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd.,502 U.S. 105, 115, 118, 112 S.Ct. 501, 116 L.Ed.2d 476 (1991). Government regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed. E.g., Sorrell v. IMS Health, Inc.,564 U.S. ----, ---- - ----, 131 S.Ct. 2653, 2663-2664, 180 L.Ed.2d 544 (2011); Carey v. Brown,447 U.S. 455, 462, 100 S.Ct. 2286, 65 L.Ed.2d 263 (1980); Mosley, supra,at 95, 92 S.Ct. 2286. This commonsense meaning of the phrase "content based" requires a court to consider whether a regulation of speech "on its face" draws distinctions based on the message a speaker conveys. Sorrell, supra,at ----, 131 S.Ct., at 2664. Some facial distinctions based on a message are obvious, defining regulated speech by particular subject matter, and others are more subtle, defining regulated speech by its function or purpose. Both are distinctions drawn based on the message a speaker conveys, and, therefore, are subject to strict scrutiny. Our precedents have also recognized a separate and additional category of laws that, though facially content neutral, will be considered content-based regulations of speech: laws that cannot be " 'justified without reference to the content of the regulated speech,' " or that were adopted by the government "because of disagreement with the message [the speech] conveys," Ward v. Rock Against Racism,491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989).Those laws, like those that are content based on their face, must also satisfy strict scrutiny. B The Town's Sign Code is content based on its face. It defines "Temporary Directional Signs" on the basis of whether a sign conveys the message of directing the public to church or some other "qualifying event." Glossary 25. It defines "Political Signs" on the basis of whether a sign's message is "designed to influence the outcome of an election." Id.,at 24. And it defines "Ideological Signs" on the basis of whether a sign "communicat [es] a message or ideas" that do not fit within the Code's other categories. Id.,at 23. It then subjects each of these categories to different restrictions. The restrictions in the Sign Code that apply to any given sign thus depend entirely on the communicative content of the sign. If a sign informs its reader of the time and place a book club will discuss John Locke's Two Treatises of Government, that sign will be treated differently from a sign expressing the view that one should vote for one of Locke's followers in an upcoming election, and both signs will be treated differently from a sign expressing an ideological view rooted in Locke's theory of government. More to the point, the Church's signs inviting people to attend its worship services are treated differently from signs conveying other types of ideas. On its face, the Sign Code is a content-based regulation of speech. We thus have no need to consider the government's justifications or purposes for enacting the Code to determine whether it is subject to strict scrutiny. C In reaching the contrary conclusion, the Court of Appeals offered several theories to explain why the Town's Sign Code should be deemed content neutral. None is persuasive. 1 The Court of Appeals first determined that the Sign Code was content neutral because the Town "did not adopt its regulation of speech [based on] disagree [ment] with the message conveyed," and its justifications for regulating temporary directional signs were "unrelated to the content of the sign." 707 F.3d, at 1071-1072. In its brief to this Court, the United States similarly contends that a sign regulation is content neutral-even if it expressly draws distinctions based on the sign's communicative content-if those distinctions can be " 'justified without reference to the content of the regulated speech.' " Brief for United States as Amicus Curiae20, 24 (quoting Ward, supra,at 791, 109 S.Ct. 2746; emphasis deleted). But this analysis skips the crucial first step in the content-neutrality analysis: determining whether the law is content neutral on its face. A law that is content based on its face is subject to strict scrutiny regardless of the government's benign motive, content-neutral justification, or lack of "animus toward the ideas contained" in the regulated speech. Cincinnati v. Discovery Network, Inc.,507 U.S. 410, 429, 113 S.Ct. 1505, 123 L.Ed.2d 99 (1993). We have thus made clear that " '[i]llicit legislative intent is not the sine qua nonof a violation of the First Amendment,' " and a party opposing the government "need adduce 'no evidence of an improper censorial motive.' " Simon & Schuster, supra,at 117, 112 S.Ct. 501. Although "a content-based purpose may be sufficient in certain circumstances to show that a regulation is content based, it is not necessary." Turner Broadcasting System, Inc. v. FCC,512 U.S. 622, 642, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994). In other words, an innocuous justification cannot transform a facially content-based law into one that is content neutral. That is why we have repeatedly considered whether a law is content neutral on its face beforeturning to the law's justification or purpose. See, e.g.,Sorrell, supra,at ---- - ----, 131 S.Ct., at 2663-2664(statute was content based "on its face," and there was also evidence of an impermissible legislative motive); United States v. Eichman,496 U.S. 310, 315, 110 S.Ct. 2404, 110 L.Ed.2d 287 (1990)("Although the [statute] contains no explicit content-based limitation on the scope of prohibited conduct, it is nevertheless clear that the Government's asserted interest is related to the suppression of free expression" (internal quotation marks omitted)); Members of City Council of Los Angeles v. Taxpayers for Vincent,466 U.S. 789, 804, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984)("The text of the ordinance is neutral," and "there is not even a hint of bias or censorship in the City's enactment or enforcement of this ordinance"); Clark v. Community for Creative Non-Violence,468 U.S. 288, 293, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984)(requiring that a facially content-neutral ban on camping must be "justified without reference to the content of the regulated speech"); United States v. O'Brien,391 U.S. 367, 375, 377, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968)(noting that the statute "on its face deals with conduct having no connection with speech," but examining whether the "the governmental interest is unrelated to the suppression of free expression"). Because strict scrutiny applies either when a law is content based on its face or when the purpose and justification for the law are content based, a court must evaluate each question before it concludes that the law is content neutral and thus subject to a lower level of scrutiny. The Court of Appeals and the United States misunderstand our decision in Wardas suggesting that a government's purpose is relevant even when a law is content based on its face. That is incorrect. Wardhad nothing to say about facially content-based restrictions because it involved a facially content-neutralban on the use, in a city-owned music venue, of sound amplification systems not provided by the city. 491 U.S., at 787, and n. 2, 109 S.Ct. 2746. In that context, we looked to governmental motive, including whether the government had regulated speech "because of disagreement" with its message, and whether the regulation was " 'justified without reference to the content of the speech.' " Id.,at 791, 109 S.Ct. 2746. But Ward's framework "applies only if a statute is content neutral." Hill,530 U.S., at 766, 120 S.Ct. 2480(KENNEDY, J., dissenting). Its rules thus operate "to protect speech," not "to restrict it." Id.,at 765, 120 S.Ct. 2480. The First Amendment requires no less. Innocent motives do not eliminate the danger of censorship presented by a facially content-based statute, as future government officials may one day wield such statutes to suppress disfavored speech. That is why the First Amendment expressly targets the operation of the laws-i.e., the "abridg[ement] of speech"-rather than merely the motives of those who enacted them. U.S. Const., Amdt. 1. " 'The vice of content-based legislation... is not that it is always used for invidious, thought-control purposes, but that it lends itself to use for those purposes.' " Hill, supra,at 743, 120 S.Ct. 2480(SCALIA, J., dissenting). For instance, in NAACP v. Button,371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963), the Court encountered a State's attempt to use a statute prohibiting " 'improper solicitation' " by attorneys to outlaw litigation-related speech of the National Association for the Advancement of Colored People. Id.,at 438, 83 S.Ct. 328. Although Buttonpredated our more recent formulations of strict scrutiny, the Court rightly rejected the State's claim that its interest in the "regulation of professional conduct" rendered the statute consistent with the First Amendment, observing that "it is no answer... to say... that the purpose of these regulations was merely to insure high professional standards and not to curtail free expression." Id.,at 438-439, 83 S.Ct. 328. Likewise, one could easily imagine a Sign Code compliance manager who disliked the Church's substantive teachings deploying the Sign Code to make it more difficult for the Church to inform the public of the location of its services. Accordingly, we have repeatedly "rejected the argument that 'discriminatory... treatment is suspect under the First Amendment only when the legislature intends to suppress certain ideas.' " Discovery Network, 507 U.S., at 429, 113 S.Ct. 1505. We do so again today. 2 The Court of Appeals next reasoned that the Sign Code was content neutral because it "does not mention any idea or viewpoint, let alone single one out for differential treatment." 587 F.3d, at 977. It reasoned that, for the purpose of the Code provisions, "[i]t makes no difference which candidate is supported, who sponsors the event, or what ideological perspective is asserted." 707 F.3d, at 1069. The Town seizes on this reasoning, insisting that "content based" is a term of art that "should be applied flexibly" with the goal of protecting "viewpoints and ideas from government censorship or favoritism." Brief for Respondents 22. In the Town's view, a sign regulation that "does not censor or favor particular viewpoints or ideas" cannot be content based. Ibid. The Sign Code allegedly passes this test because its treatment of temporary directional signs does not raise any concerns that the government is "endorsing or suppressing 'ideas or viewpoints,' " id.,at 27, and the provisions for political signs and ideological signs "are neutral as to particular ideas or viewpoints" within those categories. Id.,at 37. This analysis conflates two distinct but related limitations that the First Amendment places on government regulation of speech. Government discrimination among viewpoints-or the regulation of speech based on "the specific motivating ideology or the opinion or perspective of the speaker"-is a "more blatant" and "egregious form of content discrimination." Rosenberger v. Rector and Visitors of Univ. of Va.,515 U.S. 819, 829, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995). But it is well established that "[t]he First Amendment's hostility to content-based regulation extends not only to restrictions on particular viewpoints, but also to prohibition of public discussion of an entire topic." Consolidated Edison Co. of N.Y. v. Public Serv. Comm'n of N. Y.,447 U.S. 530, 537, 100 S.Ct. 2326, 65 L.Ed.2d 319 (1980). Thus, a speech regulation targeted at specific subject matter is content based even if it does not discriminate among viewpoints within that subject matter. Ibid.For example, a law banning the use of sound trucks for political speech-and only political speech-would be a content-based regulation, even if it imposed no limits on the political viewpoints that could be expressed. See Discovery Network, supra,at 428, 113 S.Ct. 1505. The Town's Sign Code likewise singles out specific subject matter for differential treatment, even if it does not target viewpoints within that subject matter. Ideological messages are given more favorable treatment than messages concerning a political candidate, which are themselves given more favorable treatment than messages announcing an assembly of like-minded individuals. That is a paradigmatic example of content-based discrimination. 3 Finally, the Court of Appeals characterized the Sign Code's distinctions as turning on " 'the content-neutral elements of who is speaking through the sign and whether and when an event is occurring.' " 707 F.3d, at 1069. That analysis is mistaken on both factual and legal grounds. To start, the Sign Code's distinctions are not speaker based. The restrictions for political, ideological, and temporary event signs apply equally no matter who sponsors them. If a local business, for example, sought to put up signs advertising the Church's meetings, those signs would be subject to the same limitations as such signs placed by the Church. And if Reed had decided to display signs in support of a particular candidate, he could have made those signs far larger-and kept them up for far longer-than signs inviting people to attend his church services. If the Code's distinctions were truly speaker based, both types of signs would receive the same treatment. In any case, the fact that a distinction is speaker based does not, as the Court of Appeals seemed to believe, automatically render the distinction content neutral. Because "[s]peech restrictions based on the identity of the speaker are all too often simply a means to control content," Citizens United v. Federal Election Comm'n,558 U.S. 310, 340, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010), we have insisted that "laws favoring some speakers over others demand strict scrutiny when the legislature's speaker preference reflects a content preference," Turner, 512 U.S., at 658, 114 S.Ct. 2445. Thus, a law limiting the content of newspapers, but only newspapers, could not evade strict scrutiny simply because it could be characterized as speaker based. Likewise, a content-based law that restricted the political speech of all corporations would not become content neutral just because it singled out corporations as a class of speakers. See Citizens United, supra,at 340-341, 130 S.Ct. 876. Characterizing a distinction as speaker based is only the beginning-not the end-of the inquiry. Nor do the Sign Code's distinctions hinge on "whether and when an event is occurring." The Code does not permit citizens to post signs on any topic whatsoever within a set period leading up to an election, for example. Instead, come election time, it requires Town officials to determine whether a sign is "designed to influence the outcome of an election" (and thus "political") or merely "communicating a message or ideas for noncommercial purposes" (and thus "ideological"). Glossary 24. That obvious content-based inquiry does not evade strict scrutiny review simply because an event (i.e., an election) is involved. And, just as with speaker-based laws, the fact that a distinction is event based does not render it content neutral. The Court of Appeals cited no precedent from this Court supporting its novel theory of an exception from the content-neutrality requirement for event-based laws. As we have explained, a speech regulation is content based if the law applies to particular speech because of the topic discussed or the idea or message expressed. Supra,at 2226 - 2227. A regulation that targets a sign because it conveys an idea about a specific event is no less content based than a regulation that targets a sign because it conveys some other idea. Here, the Code singles out signs bearing a particular message: the time and location of a specific event. This type of ordinance may seem like a perfectly rational way to regulate signs, but a clear and firm rule governing content neutrality is an essential means of protecting the freedom of speech, even if laws that might seem "entirely reasonable" will sometimes be "struck down because of their content-based nature." City of Ladue v. Gilleo,512 U.S. 43, 60, 114 S.Ct. 2038, 129 L.Ed.2d 36 (1994)(O'Connor, J., concurring). III Because the Town's Sign Code imposes content-based restrictions on speech, those provisions can stand only if they survive strict scrutiny, " 'which requires the Government to prove that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest,' " Arizona Free Enterprise Club's Freedom Club PAC v. Bennett,564 U.S. ----, ----, 131 S.Ct. 2806, 2817, 180 L.Ed.2d 664 (2011)(quoting Citizens United,558 U.S., at 340, 130 S.Ct. 876). Thus, it is the Town's burden to demonstrate that the Code's differentiation between temporary directional signs and other types of signs, such as political signs and ideological signs, furthers a compelling governmental interest and is narrowly tailored to that end. See ibid. The Town cannot do so. It has offered only two governmental interests in support of the distinctions the Sign Code draws: preserving the Town's aesthetic appeal and traffic safety. Assuming for the sake of argument that those are compelling governmental interests, the Code's distinctions fail as hopelessly underinclusive. Starting with the preservation of aesthetics, temporary directional signs are "no greater an eyesore," Discovery Network,507 U.S., at 425, 113 S.Ct. 1505, than ideological or political ones. Yet the Code allows unlimited proliferation of larger ideological signs while strictly limiting the number, size, and duration of smaller directional ones. The Town cannot claim that placing strict limits on temporary directional signs is necessary to beautify the Town while at the same time allowing unlimited numbers of other types of signs that create the same problem. The Town similarly has not shown that limiting temporary directional signs is necessary to eliminate threats to traffic safety, but that limiting other types of signs is not. The Town has offered no reason to believe that directional signs pose a greater threat to safety than do ideological or political signs. If anything, a sharply worded ideological sign seems more likely to distract a driver than a sign directing the public to a nearby church meeting. In light of this underinclusiveness, the Town has not met its burden to prove that its Sign Code is narrowly tailored to further a compelling government interest. Because a " 'law cannot be regarded as protecting an interest of the highest order, and thus as justifying a restriction on truthful speech, when it leaves appreciable damage to that supposedly vital interest unprohibited,' " Republican Party of Minn. v. White,536 U.S. 765, 780, 122 S.Ct. 2528, 153 L.Ed.2d 694 (2002), the Sign Code fails strict scrutiny. IV Our decision today will not prevent governments from enacting effective sign laws. The Town asserts that an " 'absolutist' " content-neutrality rule would render "virtually all distinctions in sign laws... subject to strict scrutiny," Brief for Respondents 34-35, but that is not the case. Not "all distinctions" are subject to strict scrutiny, only content-basedones are. Laws that are content neutralare instead subject to lesser scrutiny. See Clark,468 U.S., at 295, 104 S.Ct. 3065. The Town has ample content-neutral options available to resolve problems with safety and aesthetics. For example, its current Code regulates many aspects of signs that have nothing to do with a sign's message: size, building materials, lighting, moving parts, and portability. See, e.g.,§ 4.402(R). And on public property, the Town may go a long way toward entirely forbidding the posting of signs, so long as it does so in an evenhanded, content-neutral manner. See Taxpayers for Vincent,466 U.S., at 817, 104 S.Ct. 2118(upholding content-neutral ban against posting signs on public property). Indeed, some lower courts have long held that similar content-based sign laws receive strict scrutiny, but there is no evidence that towns in those jurisdictions have suffered catastrophic effects. See, e.g.,Solantic, LLC v. Neptune Beach,410 F.3d 1250, 1264-1269 (C.A.11 2005)(sign categories similar to the town of Gilbert's were content based and subject to strict scrutiny); Matthews v. Needham,764 F.2d 58, 59-60 (C.A.1 1985)(law banning political signs but not commercial signs was content based and subject to strict scrutiny). We acknowledge that a city might reasonably view the general regulation of signs as necessary because signs "take up space and may obstruct views, distract motorists, displace alternative uses for land, and pose other problems that legitimately call for regulation." City of Ladue, 512 U.S., at 48, 114 S.Ct. 2038. At the same time, the presence of certain signs may be essential, both for vehicles and pedestrians, to guide traffic or to identify hazards and ensure safety. A sign ordinance narrowly tailored to the challenges of protecting the safety of pedestrians, drivers, and passengers-such as warning signs marking hazards on private property, signs directing traffic, or street numbers associated with private houses-well might survive strict scrutiny. The signs at issue in this case, including political and ideological signs and signs for events, are far removed from those purposes. As discussed above, they are facially content based and are neither justified by traditional safety concerns nor narrowly tailored. * * * We reverse the judgment of the Court of Appeals and remand the case for proceedings consistent with this opinion. It is so ordered. Justice ALITO, with whom Justice KENNEDYand Justice SOTOMAYORjoin, concurring. I join the opinion of the Court but add a few words of further explanation. As the Court holds, what we have termed "content-based" laws must satisfy strict scrutiny. Content-based laws merit this protection because they present, albeit sometimes in a subtler form, the same dangers as laws that regulate speech based on viewpoint. Limiting speech based on its "topic" or "subject" favors those who do not want to disturb the status quo. Such regulations may interfere with democratic self-government and the search for truth. See Consolidated Edison Co. of N.Y. v. Public Serv. Comm'n of N. Y.,447 U.S. 530, 537, 100 S.Ct. 2326, 65 L.Ed.2d 319 (1980). As the Court shows, the regulations at issue in this case are replete with content-based distinctions, and as a result they must satisfy strict scrutiny. This does not mean, however, that municipalities are powerless to enact and enforce reasonable sign regulations. I will not attempt to provide anything like a comprehensive list, but here are some rules that would not be content based: Rules regulating the size of signs. These rules may distinguish among signs based on any content-neutral criteria, including any relevant criteria listed below. Rules regulating the locations in which signs may be placed. These rules may distinguish between free-standing signs and those attached to buildings. Rules distinguishing between lighted and unlighted signs. Rules distinguishing between signs with fixed messages and electronic signs with messages that change. Rules that distinguish between the placement of signs on private and public property. Rules distinguishing between the placement of signs on commercial and residential property. Rules distinguishing between on-premises and off-premises signs. Rules restricting the total number of signs allowed per mile of roadway. Rules imposing time restrictions on signs advertising a one-time event. Rules of this nature do not discriminate based on topic or subject and are akin to rules restricting the times within which oral speech or music is allowed. In addition to regulating signs put up by private actors, government entities may also erect their own signs consistent with the principles that allow governmental speech. See Pleasant Grove City v. Summum,555 U.S. 460, 467-469, 129 S.Ct. 1125, 172 L.Ed.2d 853 (2009). They may put up all manner of signs to promote safety, as well as directional signs and signs pointing out historic sites and scenic spots. Properly understood, today's decision will not prevent cities from regulating signs in a way that fully protects public safety and serves legitimate esthetic objectives. Justice BREYER, concurring in the judgment. I join Justice KAGAN's separate opinion. Like Justice KAGAN I believe that categories alone cannot satisfactorily resolve the legal problem before us. The First Amendment requires greater judicial sensitivity both to the Amendment's expressive objectives and to the public's legitimate need for regulation than a simple recitation of categories, such as "content discrimination" and "strict scrutiny," would permit. In my view, the category "content discrimination" is better considered in many contexts, including here, as a rule of thumb, rather than as an automatic "strict scrutiny" trigger, leading to almost certain legal condemnation. To use content discrimination to trigger strict scrutiny sometimes makes perfect sense. There are cases in which the Court has found content discrimination an unconstitutional method for suppressing a viewpoint. E.g., Rosenberger v. Rector and Visitors of Univ. of Va.,515 U.S. 819, 828-829, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995); see also Boos v. Barry,485 U.S. 312, 318-319, 108 S.Ct. 1157, 99 L.Ed.2d 333 (1988)(plurality opinion) (applying strict scrutiny where the line between subject matter and viewpoint was not obvious). And there are cases where the Court has found content discrimination to reveal that rules governing a traditional public forum are, in fact, not a neutral way of fairly managing the forum in the interest of all speakers. Police Dept. of Chicago v. Mosley,408 U.S. 92, 96, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972)("Once a forum is opened up to assembly or speaking by some groups, government may not prohibit others from assembling or speaking on the basis of what they intend to say"). In these types of cases, strict scrutiny is often appropriate, and content discrimination has thus served a useful purpose. But content discrimination, while helping courts to identify unconstitutional suppression of expression, cannot and should not 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_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. THOR POWER TOOL COMPANY, Petitioner-Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee. No. 76-1476. United States Court of Appeals, Seventh Circuit. Argued Dec. 7, 1976. Decided Sept. 29, 1977. Mark H. Berens, Chicago, Ill., for petitioner-appellant. Crane C. Hauser, Chicago, Ill., for amicus curiae. Scott P. Crampton, Asst. Atty. Gen., William A. Whitledge, Atty., Tax Div., Dept. of Justice, Meade Whitaker, I. R. S., Washington, D. C., for respondent-appellee. Before TONE and WOOD, Circuit Judges, and CAMPBELL, Senior District Judge. The Honorable William J. Campbell, Senior District Judge of the United States District Court for the Northern District of Illinois, is sitting by designation. TONE, Circuit Judge. Thor Power Tool Company appéals from a decision of the United States Tax Court, 64 T.C. 154 (1975), which upheld the Commissioner’s disallowance of portions of Thor’s write-down of its closing inventory for 1964 and its 1965 addition to a reserve for bad debts. The issues presented involve the income tax treatment of “excess” inventory and the method for calculating a reasonable addition to a bad debt reserve. We affirm. I. Inventory A. Thor manufactures tools and parts at three plants in its Tool Division and various rubber articles at a fourth plant in its Rubber Division. The corporation also maintains 24 sales and service branches in the United States and Canada. Inventories of parts, accessories, and completed tools are maintained at all branches and at the three Tool Division plants. Those three plants also maintain inventories of raw materials and work-in-process. The single Rubber Division plant keeps inventories of raw materials, work-in-process, and completed products. Much of the inventory consists of replacement parts and accessories. When Thor discontinued the manufacture of tools of a particular model, it nevertheless continued to stock replacement parts and accessories for tools of that model that were still in service. Thor began amortizing its cost of inventories of replacement parts and accessories for out-of-production tools in its 1960 tax return. This was accomplished by establishing an inventory contra account on the books of the company, and crediting that account with ten percent of the value of a part or accessory for each year since the termination of production of the tool of which the part or accessory was a component. The closing inventory was then written down to reflect this account, thereby increasing the cost of goods sold and reducing the reported net income. This practice was continued in the 1961,1962,1963 tax returns, without a challenge from the Commissioner. Further additions to the account were made for the first three quarters of 1964. In December of 1964 new management assumed the reins at Thor. As part of its preparation of the 1964 financial statements, “a complete re-evaluation of the assets and liabilities of the company” was undertaken, including “a physical inventory . at all locations . . . .” The inventory was then “priced at 1964 inventory standards . . . .” Once this was completed the management began to adjust the inventory valuation, in order to show the inventory at its “net realizable value,” as required by the standards of the accounting profession, and to price the inventory at “the lower of cost or market,” as had been Thor’s practice for income tax purposes. Write-downs totaling about $2,750,000 were made for obsolescence and other reasons. These were not questioned by the Commissioner, because the items in question were scrapped soon after they were deleted from the 1964 closing inventory. A write-down of $245,000 was made for parts for three recent products that had not sold as well as expected. This too went unchallenged because the products were sold at lowered prices soon after the write-down. The remaining inventory, consisting of some 44,000 items, was evaluated for the purpose of ascertaining the extent to which it too was in excess of anticipated demand. Relying on its experience with manufacturing businesses, the new management estimated future demand for these items. At two of the Tool Division plants, estimates were based on 1964 sales figures, resulting in write-downs of $744,030. Owing to the inadequacy of sales data for the other two plants, flat percentage adjustments were made to the valuations for parts, raw materials, work-in-process, and finished products in the physical inventory, resulting in write-downs of $160,832. The $22,090 credit which the old management had entered in the inventory contra account for the first three quarters of 1964, see note 3, supra, was also subtracted from closing inventory. These last three adjustments were disallowed by the Commissioner, as not “clearly reflecting the income” for 1964. The Tax Court upheld the Commissioner, on the ground that Thor’s write-down of excess inventory was not permitted by the Treasury Regulations. B. Section 446 of the Internal Revenue Code, 26 U.S.C. § 446, provides that taxes shall be computed in accordance with the taxpayer’s usual method of accounting, unless that method does not clearly reflect income. The taxpayer’s method of accounting is thus given preference. Lincoln Electric Co. v. Commissioner, 444 F.2d 491, 494 (6th Cir. 1971); Photo-Sonics, Inc. v. Commissioner, 357 F.2d 656, 658 n. 1 (9th Cir. 1966). If, however, in the opinion of the Commissioner, that method does not clearly reflect income, the Commissioner may require that another method be used. Brown v. Helvering, 291 U.S. 193, 203, 54 S.Ct. 356, 78 L.Ed. 725 (1934); Bangor Pun-ta Operations, Inc. v. United States, 466 F.2d 930, 935 (7th Cir. 1972). The Commissioner possesses “broad powers in determining whether accounting methods used by a taxpayer clearly reflect income.” Commissioner v. Hansen, 360 U.S. 446, 467, 79 S.Ct. 1270, 1282, 3 L.Ed.2d 1360 (1959). The Commissioner’s discretion is, if anything, greater with respect to inventory accounting. Waukesha Motor Co. v. United States, 322 F.Supp. 752, 768 (E.D. Wis.1971). Section 471, 26 U.S.C. § 471, provides: “Whenever in the opinion of the Secretary or his delegate the use of inventories is necessary in order clearly to determine the income of any taxpayer, inventories shall be taken by such taxpayer on such basis as the Secretary or his delegate may prescribe as conforming as nearly as may be to the best accounting practice in the trade or business and as most clearly reflecting the income.” The statute thus sets up a two-part standard on which the Secretary or his delegate, the Commissioner, is to act: the taxpayer’s inventory method must both conform closely to the relevant “best accounting practices” and clearly reflect income. These two are usually linked, however, because an accounting method which “reflects the consistent application of generally accepted accounting principles in a particular trade or business . . . will ordinarily be regarded as clearly reflecting income . . Treas.Reg. § 1.446-l(a)(2). The same principle was applied to inventory accounting in a sentence which appeared in the regulations until 1973: “ . . Taxable income shall be computed under the method of accounting on the basis of which the taxpayer regularly computes his income in keeping his books . [unless] the method used does not clearly reflect income, [in which case] the computation of taxable income shall be made under such method as, in the opinion of the Secretary or his delegate, does clearly reflect income.” “An inventory that can be used under the best accounting practice in a balance sheet showing the financial position of the taxpayer can, as a general rule, be regarded as clearly reflecting his income.” Treas.Reg. § 1.471-2(b). See also Commissioner v. Joseph E. Seagram & Sons, Inc., 394 F.2d 738, 742-743 (2d Cir. 1968). As the words “ordinarily” and “as a general rule,” and the two-part standard itself, suggest, however, there can be circumstances in which the best accounting practice does not clearly reflect income. Thus the accounting profession’s indorsement of a practice as “the best accounting practice,” even if accepted by the Commissioner, does not require him to determine that the practice clearly reflects taxable income. Schlude v. Commissioner, 372 U.S. 128, 83 S.Ct. 601, 9 L.Ed.2d 633 (1963); American Automobile Association v. United States, 367 U.S. 687, 693, 81 S.Ct. 1727, 6 L.Ed.2d 1109 (1961). This is because the goals of balance-sheet and income-tax accounting are not identical. Mr. Justice Clark, in American Automobile Association v. United States, supra, speaking of the accounting system before the Court, said that it “presents a rather accurate image of the total financial structure, but fails to respect the criteria of annual tax accounting and may be rejected by the Commissioner.” 367 U.S. at 692, 81 S.Ct. at 1730. The criteria referred to were stated by Mr. Justice Brandéis in Lucas v. Kansas City Structural Steel Co., 281 U.S. 264, 268, 50 S.Ct. 263, 265, 74 L.Ed. 848 (1930): “The Federal income tax system is based upon an annual accounting period. This requires that gains or losses be accounted for in the year in which they are realized. The purpose of the inventories is to assign to each period its profits and losses.” Whether a given method of accounting clearly reflects income is a question of fact. Artnell Co. v. Commissioner, 400 F.2d 981, 983-985 (7th Cir. 1968). As the Supreme Court has stated, it is not our role, in reviewing the Commissioner’s exercise of his discretion, “to weigh and determine the relative merits of systems of accounting.” Brown v. Helvering, supra, 291 U.S. at 204-205, 54 S.Ct. at 361. Thus, in order to overturn the Commissioner’s disallowance, the taxpayer must show that the Commissioner’s act was “plainly arbitrary.” Lucas v. Kansas City Structural Steel Co., supra, 281 U.S. at 271, 50 S.Ct. 263; Bangor Punta Operations, Inc. v. United States, supra, 466 F.2d at 935. C. The Tax Court held in this case that under § 471 of the Internal Revenue Code of 1954 the Secretary is to prescribe the methods by which inventories are to be taken, and that the Treasury Regulations set forth those methods. While the court found that Thor’s write-downs of excess inventory constituted a “best accounting practice” within the terms of the statute, it also held, without elaboration, that Thor had failed to establish that its inventory accounting clearly reflected its 1964 income, thus falling outside the general language of the regulations. The Tax Court therefore required Thor to demonstrate that its method satisfied one of the specific regulations. Because the regulations did not authorize Thor’s treatment of its “excess inventory,” the court upheld the Commissioner. Thor argues that the Tax Court erred in not allowing it to take advantage of a “presumption” that best accounting practice will clearly reflect income. Thor contends this was created by the sentence formerly included in Treas.Reg. § 1.471-2(b). See text at note 11, supra. Thor also argues that the court erred in requiring it to demonstrate that its inventory accounting was explicitly authorized by the regulations, and in holding that the regulations did not authorize the method used. The Tax Court’s finding that Thor’s treatment of inventory for 1964 conformed to best accounting practice is not clearly erroneous and is not seriously challenged by the Commissioner. The remaining issues relate to whether that treatment most clearly reflected income and can best be discussed in the following sequence: (1) Was Thor’s treatment authorized by specific regulations? (2) Was it authorized by general regulations? (3) If it was neither authorized nor forbidden by any regulations, and the Commissioner nevertheless was required to determine whether it clearly reflected income, did he abuse his discretion in determining that it did not? We answer these questions, in the negative and then go on to hold, see (4),' infra, that the Commissioner did not abuse his discretion in determining that inventory which was not yet scrapped could not be written off for tax purposes. (1) We uphold the Tax Court’s determination that Thor’s write-downs of excess inventory did not fall within the specific regulations. Treasury Regulation § 1.471-2(c) permits the taxpayer to use special valuation procedures for inventory goods which the taxpayer proves are “unsalable at normal prices . . . because of damage, imperfections, shop wear, changes of style, odd or broken lots, or other similar causes . . . .” Thor failed to carry its burden of proving that its excess parts and accessories were within the descriptive phrase. E. W. Bliss Co. v. United States, 224 F.Supp. 374, 378 n. 1 (N.D.Ohio 1963), aff’d on the opinion below, 351 F.2d 449 (6th Cir. 1965). We accept the view of the Commissioner and the Tax Court that the words “other similar causes” do not extend the coverage of the regulation to units which, in management’s opinion, are “excess.” As the Tax Court observed, excess inventory is not distinguishable from other units of inventory. All the tool parts and accessories were in essentially the same condition — they were commingled and interchangeable. See Lucas v. Kansas City Structural Steel Co., supra, 281 U.S. at 270-271, 50 S.Ct. 263. See also Cleveland Automobile Co. v. United States, 70 F.2d 365, 368-369 (6th Cir.), cert. denied, 293 U.S. 563, 55 S.Ct. 88, 79 L.Ed. 663 (1934). Moreover, at least with respect to the finished products, Thor did not meet the valuation requirements of this regulation. No “actual offering” at below “normal prices” was made within 30 days of the inventory, and therefore no bona fide selling price could be calculated. Thor cannot be permitted to do what the Sixth Circuit forbade in Cleveland Automobile Co. v. United States, supra, viz., 70 F.2d at 369. See also John L. Ashe, Inc. v. Commissioner, 214 F.2d 13, 15 (5th Cir. 1954). “by a consideration of all factors then known and those later discovered . thus substitute for the actual selling price required by the regulation a suppositi-tious selling price which the Commissioner and the court must accept because it conforms to good accounting practice.” Nor does the excess inventory come within Treas.Reg. § 1.471-4. As noted above, the units of excess inventory are “normal” goods, unlike the custom-built presses involved in the Bliss case, on which Thor chiefly relies. The fact that they may be in excess of Thor’s future needs is not an exceptional circumstance permitting their market valuation to be set at other than their replacement cost. Knapp King-Size Corp. v. United States, 527 F.2d 1392,1399-MOO (Ct.Cl.1975); D. Loveman & Son Export Corp. v. Commissioner, 34 T.C. 776 (I960), aff’d on opinion below, 296 F.2d 732 (6th Cir. 1961), cert. denied, 369 U.S. 860, 82 S.Ct. 950, 8 L.Ed.2d 18 (1962). Thor’s own chief executive officer stated that “any business which is involved in the manufacture and sale of products inevitably must have excess inventory,” that this was particularly true in “the kind of business that Thor was in . which involves a very high percentage of service parts and accessories,” and that many manufacturing costs are “independent of quantity.” Furthermore, a senior member of a leading accounting firm who was called as an expert by Thor testified that “most corporations in that type of business do carry a fairly good inventory in terms of quantities and diversified parts for most of their models . . .’’ Thus, in Thor’s business it was considered wise to produce in advance all the parts that were expected to be sold over several succeeding years. Of necessity, these parts were then carried in inventory. Therefore, we cannot say that the Tax Court erred in holding that the accumulation of excess inventory is not an extraordinary circumstance justifying valuation of inventory under Treas.Reg. § l,471-4(b) in a manufacturing business such as Thor’s, with its extensive inventory accumulated for service and repair purposes. (2) As we have noted, the regulation dealing with accounting practices generally, Treas.Reg. § 1.446-l(a)(2), and the former provision in the regulation dealing with inventory, Treas.Reg. § 1.471-2(b), simply provide that the best accounting practice will ordinarily produce a result that most clearly reflects income. Thor contends that these provisions established a presumption in its favor. The weakness in this argument is exposed, however, by the sentence in the latter regulation which immediately precedes the sentence on which Thor relies. That preceding sentence is as follows: “In order to clearly reflect income, the inventory practice of a taxpayer should be consistent from year to year, and greater weight is to be given to consistency than to any particular method of inventorying or basis of valuation so long as the method or basis used is in accord with sections 1.471-1 through 1.471-11.” The Tax Court, although it did not reach the related issue of internal inconsistency during 1964, see note 12, supra, did infer that the excess inventory Thor attempted to write off in 1964 had been accumulated “over a period of several years.” This inference was appropriate, in view of the fact that the merger with Stewart-Warner was called off in part because Thor’s inventory valuation was excessive, see note 4, supra, and the fact that the new management adopted a valuation method which resulted in overall write-downs of nearly $4 million in 1964, as compared with a small fraction of that amount in the preceding years. As the Tax Court implied in questioning an expert witness called by Thor, this large discrepancy was enough to indicate that consistency was lacking. Hence if any “presumption” was created by the regulations, it was dissipated by this lack of consistency. Inventory accounting for income tax purposes must serve the ultimate goal of matching costs and revenues so the profit or loss of a particular year is accurately reflected. United States Cartridge Co. v. United States, 284 U.S. 511, 520, 52 S.Ct. 243, 76 L.Ed. 431 (1932); Photo-Sonics, Inc. v. Commissioner, supra, 357 F.2d at 657. Thus Thor had the burden of proving before the Tax Court that its treatment of inventory more clearly reflected income than did the Commissioner’s. Peterson Produce Co. v. United States, 205 F.Supp. 229, 241 (W.D.Ark.1962), aff’d, 313 F.2d 609 (8th Cir. 1963). (3) The Tax Court’s finding that Thor did not prove its 1964 income to have been clearly reflected was not clearly erroneous. Cf. Resnik v. Commissioner, 555 F.2d 634, 636 (7th Cir. 1977). Thor’s argument to the contrary is not supported by the expert testimony it adduced. The highly qualified members of the accounting profession Thor called as experts did not testify that its 1964 income had been clearly reflected in its tax return, or that the accounting method used was necessary in order to state the 1964 income. Thor’s independent auditor (who did not become such until 1970) testified merely that his analysis of Thor’s 1964-1971 inventory reserves and results of operations demonstrated that Thor’s write-offs of “excess inventory” were not excessive. Neither his testimony nor that of the other experts compelled a finding that the Commissioner had abused his wide discretion. (4) Inventory valuation under the lower-of-cost-or-market method adopted by Thor is “a limited exception to the principle of annual accounting.” Space Controls, Inc. v. Commissioner, 322 F.2d 144, 148 (5th Cir. 1963). In conceding that exception, however, the Commissioner has not abandoned completely the rules that require realization. Thus, the Commissioner requires taxpayers to prove “closed transactions or identifiable events” as a basis for inventory valuations, in order to reduce their opportunities to determine unilaterally how much profit or loss to report in any given year. This is the purpose of Treas.Regs. §§ 1.471-2(c) and 1.471-4(b), which require the taxpayer to offer evidence of valuation, such as discount sales or contract cancellations. Accounting principles may well require that reserves be maintained to reflect declines in value of goods held in inventory, despite the absence of such “identifiable events.” But, as Mr. Justice Brandéis observed in Brown v. Helvering, supra, 291 U.S. at 201-202, 54 S.Ct. at 360: “Only a few reserves voluntarily established as a matter of conservative accounting are authorized by the Revenue Acts. . . . Many reserves set up by prudent business men are not allowable as deductions.” See also American Can Co. v. Bowers, 35 F.2d 832, 835 (2d Cir. 1929), cert. denied, 281 U.S. 736, 50 S.Ct. 249, 74 L.Ed. 1151 (1930). See generally United States v. American Can Co., 280 U.S. 412, 419, 50 S.Ct. 177, 74 L.Ed. 518 (1930); Lucas v. American Code Co., 280 U.S. 445, 452, 50 S.Ct. 202, 74 L.Ed. 538 (1930). In exercising his broad discretion under § 471, the Commissioner may require that the losses on excess inventory actually be realized, e. g., through scrapping, before they may be subtracted from sales. That is apparently what he required in this case, as is demonstrated by his allowance of the $245,000 write-down for excess inventories of three products that Thor actually sold off at lower prices. Accordingly, we affirm the judgment of the Tax Court with respect to the inventory valuation issue. II. Bad Debt Reserve The second issue before us involves Thor’s 1965 addition to its reserve for bad debts. At the close of 1965 the collectibility of all accounts receivable was estimated by the Thor personnel most familiar with each account and their estimates were reviewed by three levels of management. All inter-company accounts were treated as fully collectible. A 100 percent reserve was established for the two Rubber Division accounts determined to be wholly uncollectible, and a one percent reserve was established for the remaining receivables in that division. The credit clerks in the Tool Division evaluated each 90-day-old account of over $100, and made an individual determination as to its collectibility. Again a 100 percent reserve was set aside for those accounts which were considered wholly uncollectible. The dollar ratio of uncollectible accounts to total over-$100 accounts was then applied to the 90-day-old accounts with a balance of under $100, to determine the dollar reserve to be set aside on these smaller accounts. Flat two percent reserves were set aside for all other 90-day-old accounts and all accounts between 30 and 90 days past due. A one percent reserve was established for all accounts less than 30 days old. These computations resulted in a total addition to the bad debt reserve, i. e., a total deduction from income, of $135,150. The Commissioner, however, recomputed what he considered to be “a reasonable addition” to the reserve, by applying the six-year moving average, or Black Motor formula to the 1965 accounts receivable. He divided the total of accounts written off by Thor during the tax year in question and the five preceding years by the total of year-end receivables for all six years. The resulting percentage was then applied to the 1965 year-end receivables, and the $74,-790.80 by which Thor’s claimed deduction exceeded the product of this calculation was disallowed. Reasonable additions to a reserve for bad debts may be deducted pursuant to § 166(c) of the Internal Revenue Code of 1954. As the Code makes clear, the Commissioner is to exercise his discretion regarding the reasonableness of any particular addition. In order to overturn the Commissioner's disallowance, therefore, the taxpayer must show that the Commissioner has abused his discretion. Calavo, Inc. v. Commissioner, 304 F.2d 650, 653-654 (9th Cir. 1962). This is a “heavy burden.” Consolidated-Hammer Dry Plate & Film Co. v. Commissioner, 317 F.2d 829, 834 (7th Cir. 1963). As we have stated before, the issue thus presented “is whether the Commissioner’s view is reasonable.” The First National Bank of Chicago v. Commissioner, 546 F.2d 759, 761 (7th Cir. 1976), cert. denied, 431 U.S. 915, 97 S.Ct. 2176, 53 L.Ed.2d 225 (1977); S. W. Coe & Co. v. Dallman, 216 F.2d 566, 569 (7th Cir. 1954). If it is, the inquiry is ended. We agree with the Tax Court that the Commissioner’s method of determining the reserve for bad debts, which gave preference to experience over estimates, was reasonable. AFFIRMED. . Because the extensive write-downs taken for 1964, see text, infra, resulted in an operating loss for that year, part of which was carried back to 1963, the tax deficiency resulting from the Commissioner’s disallowance was for 1963. The bad debt reserve issue relates to the taxes for 1965. . The Tax Court observed that inventories of undetermined size were also maintained by Thor’s distributors and several major customers. None of those inventories are involved in this case. . A total of $152,117 was credited to the inventory contra account, and hence subtracted from net income, during 1960-63. Another $22,090 was credited to the account during the first three quarters of 1964, for subtraction at the close of that year. . A proposed merger of Thor into Stewart-Warner Corp. fell through in early December 1964, apparently because an investigation and audit convinced Stewart-Wamer that Thor’s assets were overstated. The purchase agreement between the two companies was rescinded by mutual agreement at that time, and Stewart-Wamer agreed to provide management assistance to Thor. Accordingly, a Stewart-Warner employee assumed the presidency of Thor on December 14, 1964. . All parts of tools which had never been offered for sale and parts for which there had been no demand during 1964 were considered to be “obsolete.” . The gross usable inventory at these plants was reduced as follows: (1) Items not in excess of 12 months’ anticipated demand were not written down. (2) Items in excess of 12 months’ anticipated demand but not in excess of 18 months’ anticipated demand were written down 50 percent. (3) Items in excess of 18 months’ anticipated demand but not in excess of 24 months’ anticipated demand were written down 75 percent. (4) Items in excess of 24 months’ anticipated demand were written off completely. . Inventory was reduced by: (1) five percent for tool parts and motor parts at the third plant; (2) ten percent for raw materials, manuals and name plates, and work-in-process at this plant; (3) fifty percent for hardware at this plant; and (4) ten percent for raw materials, work-in-process, and finished goods at the fourth plant. . The statutory notice of deficiency received by Thor initially indicated a disallowance of $1,079,069, which was the total credit balance in Thor’s inventory contra account at the close of 1964. This figure was derived by adding the above described credits to the account taken during 1964, which totaled $926,952, to the year-end 1973 account credit balance of $152,-117. The credit balance in the inventory contra account at the end of each year was reflected on Thor’s income tax return for that year as a reduction of closing inventory. Thus, only the net addition to the account during any particular taxable year increased Thor’s cost of goods sold and reduced its taxable income for that year. Inasmuch as the Commissioner was only challenging Thor’s 1964 return, yet the deficiency notice also included the 1964 opening balance, the Commissioner conceded before the Tax Court that only the credits totaling $926,-952 were at issue. The Commissioner did not, however, concede the propriety of the methods by which the 1964 opening account credit balance was obtained. We express no views on this. . 26 U.S.C. § 446: . Treas.Reg. § 1.446-l(a)(2) provides, inter alia, that “no method of accounting is acceptable unless, in the opinion of the Commissioner, it clearly reflects income.” . In 1973 this sentence was deleted by an amendment which the Tax Court properly held inapplicable to the case at bar. That amendment also added the requirement that accounting methods be “consistent with” the regulations to Treas.Reg. § 1.446 — l(c)(l)(ii). See T.D. 7285 (approved Sept. 13, 1973), 1973-2 Cum. Bull. 163. . The Tax Court therefore did not reach the Commissioner’s alternative arguments, viz., that Thor’s new inventory valuation procedures constituted a change in its method of accounting, without the Commissioner’s permission, and was therefore impermissible, or that Thor’s 1963 income was not clearly reflected because it failed to revalue its 1964 opening inventory in accordance with the methods used to value its closing inventory. . We assume that if a particular situation is not covered by a general or specific regulation, the Commissioner would nevertheless be obligated to apply the two-part standard to the facts of that case. Section 471, in speaking of the individual taxpayer, suggests as much. . Treasury Regulation § 1.471-2(c) provides that unsalable goods “should be valued at bona fide selling prices less direct cost of disposition . . . . Bona fide selling price means actual offering of goods during a period ending not later than 30 days after inventory date.” . This regulation governs inventories valued at the lower of cost or market, as was Thor’s. Subsection (a) provides the general definition of “market,” which applies “[u]nder ordinary circumstances and for normal goods in an inventory . . . Subsection (b) establishes procedures for inventory valuation “[w]here no open market exists or where quotations are nominal, due to inactive market conditions . . . .” In such circumstances “the taxpayer must use such evidence of a fair market price at the date or dates nearest the inventory as may be available, such as specific purchases or sales ... or compensation paid for cancellation of contracts . . . .” . As the American Institute of Certified Public Accountants observed in a comment it prepared on proposed amendments to the inventory regulations under § 471, “the cost of producing additional parts, in the event that actual future need is greater than presently estimated, would be prohibitive.” . Our conclusion is consistent with the AIC-PA’s acknowledgement in its statement on proposed inventory regulations, see note 16, supra, that “the problem of determining appropriate cost for inventory quantities in excess of prospective demand” is “[a]n important valuation matter not covered” by the present regulations. . Compare, as to obsolete goods, C-O-Two Fire Equipment Co. v. Commissioner, 219 F.2d 57 (3d Cir. 1955). The distinction is understandable in light of the fact that the regulations specifically allow deductions for obsolete property. See United States Cartridge Co. v. United States, 284 U.S. 511, 516-520, 52 S.Ct. 243, 76 L.Ed. 431 (1932). . The procedure is described in Black Motor Co., 14 B.T.A. 300 (1940), aff'd on other grounds, 125 F.2d 977 (6th Cir. 1942). . 26 U.S.C. § 166(c) provides: “Reserve for Bad Debts. — In lieu of any deduction under subsection (a), there shall be allowed (in the discretion of the Secretary or his delegate) a deduction for a reasonable addition to a reserve for bad debts.” 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_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". ROTHENBERG v. H. ROTHSTEIN & SONS. No. 9965. United States Court of Appeals Third Circuit. Argued Dec. 8, 1949. Decided March 24, 1950. Hirsh W. Stalberg, Philadelphia., Pa. (Shapiro, Conner, Rosenfeld & Stalberg, Philadelphia, Pa., on the brief), for appellant. Milton H. Friedman, Buffalo, N. Y. (Harry W. Kurtzman, Philadelphia, Pa., on the brief), for appellee. Before BIGGS, Chief Judge and O’CON-NELL and KALODNER, Circuit Judges. KALODNER, Circuit Judge. On this appeal, the parties have presented two issues for determination; (1) whether the defendants properly raised their defense based on the Statute of Frauds contained in the Pennsylvania Sales Act, 69 P.S. § 42, and (2) whether the learned trial judge erred in holding that the contract involved was outside the statute. However, on examination, the record discloses another, and more important, issue which, because it was not here developed hy the parties, warrants the granting of an opportunity for them to do so. Rothenberg commenced this litigation by complaint to the Secretary of Agriculture pursuant to the Perishable Agricultural Commodities Act, 7 U.S.C.A. § 499f, seeking thereby to enforce against the Roth-steins liability for a specific violation of the Act. In accordance with the statutory procedure, a hearing was had in Philadelphia, Pennsylvania, and ultimately damages were awarded by the Secretary’s Judicial Officer to the plaintiff. The defendants perfected their appeal to the District Court, in which tribunabthey were entitled to, and obtained, a “trial de novo * * * [proceeding] in all respects like other civil suits for damages, except that the findings of fact and order * * * of the Secretary' shall be prima-facie evidence of the facts therein stated. * * ” 7 U.S.C.A. §■ 499g(c). The jury returned a verdict against them and this appeal is taken from the judgment entered thereon, their motion for judgment under Rule 50(b), Federal Rules of Civil Procedure, 28 U.S.C.A., having been denied, D.C., 9 F.R.D. 211.» It is undisputed that on March 23, 1944, by means of the telephone, the defendants, in Philadelphia, Pennsylvania, accepted the offer of the plaintiff, in Buffalo, New York, to sell them a specific carload of fresh peas. Thus, the- contract would appear to have been made in Pennsylvania; Restatement, Conflict of Laws, Sec. 326, Comment C. It is further undisputed that the car reached Philadelphia, at the latest, on the morning o.f March 27, 1944, and that the defendants refused to take' the peas on the ground that inspection disclosed a failure to conform to the 'qualitative description allegedly given to thém by the plaintiff when the contract was made. The telegraphic exchanges between the parties are summarized in the margin. Later the peas were sold by the plaintiff. The remaining facts are established by the jury’s verdict and .aré controlling, especially since the findings are not now attacked : (1) The defendants were delivered peas of the quality described by the plaintiff, and therefore breached their contract in refusing the car. (2) The carload of peas was purchased under a term of contract, “acceptance final”, which gave them no right of rejection. (3) The carload of peas was not rejected by the defendants within a reasonable time, which, under the Regulations of the Secretary of Agriculture, is not more than twenty-four hours after receipt of notice of the arrival of a rail shipment. It is obvious that, other considerations aside, the jury might well have found for the plaintiff on any one of these three grounds, and on either of the latter two grounds even though the plaintiff had misrepresented the peas. Finally, it may be noted that the reparation award to the plaintiff by the Secretary was based primarily on the finding that the contract included the term “acceptance final”, which defendants had denied. However, it was also found, as fact, that the defendants gave notice of rejection to the plaintiff more than twenty-four hours after delivery and inspection of the car, and'that the contract was for “good” peas only. In this latter respect, the defendants had contended, as they did at the trial below, that the contract was for “U. S. No. 1 peas” with “dark green pods and green calyx”. 1 The defendants asserted the Statute of Frauds in their pleading before the Secretary, but it was found that the telegrams exchanged by the parties constituted a memorandum sufficient to remove the agreement from its operation. The defendants also invoked the Statute of Frauds in their enumeration of the bases for the appeal to the court below. The plaintiff now seeks to avert this defense, on the instant appeal, for the reason that, aside from the pleadings, the defendants did not otherwise raise the issue in the District Court. However, it clearly appears that the defendants included in their requests for charge what is tantamount to a motion for a directed verdict. After the jury was instructed, the defendants took exception to the failure of the trial judge to charge as requested, and were about to state the reasons therefor. At this point in the proceedings, the learned District Judge foreclosed further discussion, advising the defendants that he had not denied, but reserved the point. The defendants acceded, and did not argue the issue at the time. Accordingly, it was proper to raise the issue in the motion for judgment. Notwithstanding this, the parties have devoted their attention to the question, whether the contract met the requirements of the Pennsylvania Statute of Frauds. It may be noted, in this respect, that while the court below found, as did the Secretary, the existence of a memorandum made up of the telegrams of the parties, nevertheless, its finding was in part based upon an error of fact: the telegram of March 23, 1944, was treated as having been sent by the defendants to the plaintiff, in which event it would have been a sufficient memorandum, whereas in fact it was a self-serving communication dispatched by the plaintiff. However, for the reason shortly to be stated, we deem it inadvisable to dispose of this problem at this time. Although the contract, as we have said, was apparently made in Pennsylvania, it must be stated that the controversy is in the federal courts not by reason of diversity of citizenship and jurisdictional amount, but rather because of the federal statute1 already set out. In such event, we are not circumscribed by Erie R. Co. v. Tompkins, 1938, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487, nor are we thus “only another court of the State”. Holmberg v. Armbrecht, 1946, 327 U.S. 392, 394, 66 S.Ct. 582, 583, 90 L.Ed. 743, 162 A.L.R. 719. Were we such, of course, the difficulty here would vanish in view of Cohen v. Beneficial Loan Corp., 1949, 337 U.S. 541, 69 S.Ct. 1221, and Guaranty Trust Co. of New York v. York, 1945, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079, 160 A.L.R. 1231. This being the case, it must be apparent that the effect on these proceedings which the Pennsylvania Statute of Frauds has, or should have, is a decisive problem. Breaking it up into specific questions, they are: (1) Is the Pennsylvania Statute of Frauds, 69 P.S. § 42, substantive or procedural in character ? See Continental Collieries, Inc., v. Shober, 3 Cir., 1942, 130 F.2d 631. (2) Is the reference in 7 U.S.C.A. § 499e (b) a reference to procedural or to substantive rights? (3) If the reference in 7 U.S.C.A. § 499'e (b) be a reference to procedural rights can, or should, the Pennsylvania Statute of Frauds be applied, assuming it is (a) procedural, or (b) substantive in character ? (4) If the reference in 7 U.S.C.A. § 499e(b) be a reference to substantive rights, can, or should, the Pennsylvania Statute of Frauds be applied, assuming it is (a) procedural, or (b) substantive in character? Since the parties have not addressed themselves to the questions stated, we think it desirable, in the interests of fairness and as an aid to the Court, that the litigants have the -opportunity to review them, and to submit their views in briefs and oral argument. To this end, we shall, s<wa sponte, order this case to be reargued, before the full Court. The questions stated are those which we desire the parties to include in. their presentation, but are not in limitation of the scope of the reargument. Judge O’CONNELL participated in the hearing and consideration of this case, but died before the instant conclusion was reached. . 7 U.S.C.A. § 499b: “Unfair conduct; what constitutes “It shall be unlawful in or in connection with any transaction in interstate or foreign commerce— ****** “(2) Por any dealer to reject or fail to deliver in accordance with the terms of the contract without reasonable cause any perishable agricultural commodity bought or sold or contracted to be bought, sold, or consigned in interstate or foreign commerce by such dealer; * * 7 U.S.C.A. § 490e: “TAabiliiy to persons injured — Amount of damages. (a) If any commission merchant, dealer, or broker violates any provision of section 499b of this chapter he shall be liable to the person or persons injured thereby for the full amount of damages sustained in consequence of such violation. “Remedies, (b) Such liability may be enforced either (1) by complaint to the Secretary as hereinafter provided, or (2) by suit in any court of competent jurisdiction ; but this section shall not in any way abridge or alter the remedies now existing at common law or by statute, and the provisions of this chapter are in addition to such remedies.” . A motion for a new trial was withdrawn, but in any event it was denied by the District Judge, and- tlie order denying both motions was properly entered on the Docket. . (1) March 23, 1944, 4:50 P.ftL, plaintiff confirmed diverting the specific car, stating, inter alia, “Buffalo Acceptance Final”, but not referring to the quality of the péás. (2) March 27, 1944, 12:04. P.M., defendants complaint concluding “wish you would place this car elsewhere”. . (3) March 27, 1944, 3:25 P.M., plaintiff stated. nothing could be done. (4) March 28, 1944, 3:12 P.M., defendants stated they, had not read .the telegram of March 23, Í944; that plaintiff had described the car as “good quality dark green pods”; and that defendants would “mail you check 25 cents basket or bac haul car to Buffalo and pay extra charges”. (5) March 28, 1944, 4:31 P.M., plaintiff denied description and offered to buy back the car at “2.50”. (6) March 28, 1944, 8:30 P.M., defendants rejected the car. . See Footnote 3, supra. The term is currently defined in the Regulations of the Secretary of Agriculture as it was at the times here involved: 7 O.F.R. (1949 ed.) § 46.24. As to its application and effect, see LeRoy Dyal Co. v. Allen, 4 Cir., 1947, 161 F.2d 152, 157. . See 7 C.F.R. (1949 ed.) § 46.2(r) and § 46.2(s). . It has been held that a defense may be raised on appeal from a reparation order to the District Court though not raised in the proceedings before the Secretary. Fadler Co. v. Hesser, 10 Cir., 19-18, 166 F.2d 904, 906. . See Footnote 3, supra, paragraph (1). 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_genresp1	E	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. 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. James BARKSDALE, Petitioner-Appellant, v. Michael P. LANE, Respondent-Appellee. No. 89-3705. United States Court of Appeals, Seventh Circuit. Argued June 13, 1991. Decided Feb. 27, 1992. Order on Denial of Rehearing April 28, 1992. Mark Kerber (argued), Sidley & Austin, Chicago, Ill., for petitioner-appellant. Thomas L. Ciecko, Deputy Atty. Gen., Office of the Atty. Gen., Crim. Appeals Div., Chicago, Ill., for respondent-appellee. Before CUMMINGS and RIPPLE, Circuit Judges, and FAIRCHILD, Senior Circuit Judge. RIPPLE, Circuit Judge. In 1989, James Barksdale brought a ha-beas corpus petition pursuant to 28 U.S.C. § 2254 to attack collaterally his 1972 state conviction for rape, deviate sexual assault, and aggravated kidnapping. The district court dismissed Mr. Barksdale’s petition on the ground of procedural default. For the reasons set forth in this opinion, we affirm. I BACKGROUND A. Underlying Conviction and Earlier Procedural History We review the complex procedural history of Mr. Barksdale’s case in detail because that history affects the outcome of this appeal. In 1972, Mr. Barksdale was convicted in Illinois state court of rape, deviate sexual assault, and aggravated kidnapping. An Illinois intermediate appellate court affirmed. People v. Barksdale, 24 Ill.App.3d 489, 321 N.E.2d 489 (1974). While his appeal was still pending in state court, Mr. Barksdale made his first attempt to challenge his state conviction in federal court by bringing a civil rights suit against his attorney and the judge who had presided at his trial. See Barksdale v. Ryan, 398 F.Supp. 700 (N.D.Ill.1974), aff'd, 511 F.2d 1405 (7th Cir.), cert. denied, 422 U.S. 1011, 95 S.Ct. 2637, 45 L.Ed.2d 676 (1975). The district court dismissed the suit, holding that Mr. Barksdale’s suit was an impermissible attempt to “utilize federal civil rights law to bypass the procedural requirements of habeas corpus law.... Plaintiff must exhaust his state judicial remedies before receiving habeas consideration from this court.” Id. at 702. Mr. Barksdale then filed the first of a series of habeas corpus petitions. In 1978, this court affirmed the denial of what apparently was his first petition. See United States ex rel. Barksdale v. Sielaff, 585 F.2d 288 (7th Cir.1978), cert. denied, 441 U.S. 962, 99 S.Ct. 2409, 60 L.Ed.2d 1067 (1979). The court rejected Mr. Barksdale’s speedy trial claim and his challenge to certain evidentiary rulings by the state trial court. Id. at 290-91, 293-94. In addition, the court held that Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), required dismissal of Mr. Barksdale’s claim that his arrest and the search of his car violated the Fourth Amendment because he had had a full and fair opportunity to litigate that claim in the state courts. Id. at 292-93. Mr. Barksdale again sought habeas relief in 1979, contending that he had received ineffective assistance of counsel in his appeal. The district court dismissed that petition for failure to exhaust state remedies. In 1983, Mr. Barksdale brought two more habeas actions, both of which challenged the denial of his parole requests, rather than his underlying convictions. On April 14, 1983, the district court dismissed the first of these petitions without prejudice for failure to exhaust state remedies. By the time Mr. Barksdale brought his second 1983 petition, he apparently had sought the state mandamus remedy available in Illinois. However, the district court dismissed his petition on June 18, 1984, on the ground that the state case was still pending when he filed the petition. Meanwhile, in January 1985, Mr. Barks-dale filed a pro se post-conviction petition in state court challenging his 1972 judgment of conviction as well as a 1973 judgment of conviction for a separate incident of rape and deviate sexual assault. Regarding the former judgment, which is the only one at issue in this appeal, Mr. Barks-dale apparently raised issues of ineffective assistance of trial and appellate counsel, illegal search and seizure, unduly suggestive pretrial identification, and denial of his right to a trial by a jury of his peers. People v. Barksdale, No. 1-85-1785, Order at 3 (Ill.App.Ct. Aug. 18, 1988) [172 Ill.App.3d 1165, 136 Ill.Dec. 574, 544 N.E.2d 1349 (table)]. The state court dismissed that petition in June 1985 as barred by the state’s ten-year limitation period for filing post-conviction challenges. That limitation period originally was only five years, but was increased to twenty years in 1965 and then decreased to ten years effective January 1, 1984. Mr. Barksdale appealed the dismissal of his 1985 petition to state appellate court, which affirmed the dismissal in 1988. People v. Barksdale, No. 1-85-1785, Order [172 Ill.App.3d 1165, 136 Ill.Dec. 574, 544 N.E.2d 1349 (table)] (Ill.App.Ct. Aug. 18, 1988). The Illinois Supreme Court denied leave to appeal. B. District Court 1989 Habeas Proceedings Mr. Barksdale then filed the federal ha-beas petition that is the subject of this appeal. Mr. Barksdale challenged his 1972 conviction on grounds of illegal search and seizure and ineffective assistance of appellate counsel. He also argued that retroactive application of the shortened statute of limitation, without allowing him an opportunity to show a lack of culpable negligence, was an unconstitutional deprivation of due process. The district court held that Stone v. Powell precluded it from directly considering the search and seizure issue. The district court then turned to the question of whether Mr. Barksdale’s failure to bring a timely post-conviction petition in state court was a procedural default barring federal review of Mr. Barksdale’s claim of ineffective assistance of counsel. The court held that there was no due process violation in retroactively applying the shorter statute of limitations. It also held that Mr. Barksdale had procedurally defaulted his ineffective assistance of counsel claim and had not shown cause to excuse his default: Although the federal petitions were dismissed no later than 1983, Barksdale waited until January 1985 to file his state post-conviction petition. Barksdale gives no explanation for the delay. Barksdale, therefore, has failed to show cause for not timely raising his ineffective assistance of counsel claims before the state courts. The claims are found to be waived. Memorandum Opinion and Order, No. 89 C 4068 at 7, 1989 WL 135199 (October 31, 1989). The district court therefore dismissed Mr. Barksdale’s habeas petition. This appeal followed. II ANALYSIS A. Procedural Default As a general rule, federal district courts may not reach the merits of a habeas petition challenging a state conviction if the “state court declined to address a prisoner’s federal claims because the prisoner had failed to meet a state procedural requirement. In these cases, the state judgment rests on independent and adequate state procedural grounds.” Coleman v. Thompson, — U.S.-, 111 S.Ct. 2546, 2554, 115 L.Ed.2d 640 (1991). In this appeal, it is undisputed that the Illinois courts based their refusal to reach the merits of Mr. Barksdale’s 1985 post-conviction petition on the independent state ground of his failure to file within the time period permitted by the amended version of paragraph 122-1. However, Mr. Barksdale contends that the dismissal of his state petition did “not provide an ‘adequate’ basis for the district court to abstain from habeas corpus review” because, at the time he filed the state petition, Illinois courts had not determined the retroactivity of the shortened statute of limitation. Appellant’s Br. at 9. Only in 1986 did an Illinois court hold that the shortened period would be applied retroactively. See People v. Robinson, 140 Ill.App.3d 29, 94 Ill.Dec. 387, 487 N.E.2d 1264, 1267 (1986). That holding was adopted by the Illinois Supreme Court two years later in People v. Bates, 124 Ill.2d 81, 124 Ill.Dec. 407, 529 N.E.2d 227, 229 (1988). Failure to comply with state procedural rules, such as the statute of limitation involved in this case, provides an adequate basis for barring federal habeas relief “only if the state court acts in a consistent and principled way. A basis of decision applied infrequently, unexpectedly, or freakishly may be inadequate, for the lack of notice and consistency may show that the state is discriminating against the federal rights asserted.” Prihoda v. McCaughtry, 910 F.2d 1379, 1383 (7th Cir.1990). Mr. Barksdale contends that, in early 1985, he could not expect that the amended version of paragraph 122-1 would be applied retroactively. When Illinois earlier had changed the limitation period from five to twenty years, Illinois courts had refused to apply the expanded period retroactively. See, e.g., People v. Richeson, 50 Ill.2d 46, 277 N.E.2d 134, 136 (1971). Nonetheless, Illinois courts long have distinguished between the non-retroactivity of lengthened statutes of limitation and the retroactivity of shortened statutes of limitation. Compare id. (nonretroactivity) with Orlicki v. McCarthy, 4 Ill.2d 342, 122 N.E.2d 513 (1954) (retroactively applying shortened statute of limitation under state Dramshop Act) and Meegan v. Village of Tinley Park, 52 Ill.2d 354, 288 N.E.2d 423, 426 (1972) (retroactively applying newly enacted limitation period to bar preexisting cause of action). Thus, the Illinois Supreme Court was not announcing a new, unexpected rule when it held that the shortened limitation period in- paragraph 122-1 was retroactive: [O]ur cases, and cases from other jurisdictions, have drawn a distinction between the revival of a cause of action by extending the statute of limitations, and cutting off a cause of action by shortening the limitation period. The denial of retroactive application in the former instance does not preclude such application in the latter. Bates, 529 N.E.2d at 229. We therefore conclude that the retroactive enforcement of Illinois’ amended limitation period by its state courts did not render the dismissal of Mr. Barksdale’s petition an inadequate state ground for barring habeas review by the district court. Mr. Barksdale also contends that the district court erred by dismissing his petition without examining the relevant state court records. Such review was necessary, he argues, to fulfill the district court’s obligation to determine if the state findings merited a presumption of correctness under 28 U.S.C. § 2254(d). See United States ex rel. Ballard v. Bengston, 702 F.2d 656, 663 (7th Cir.1983); United States ex rel. Jones v. Franzen, 676 F.2d 261, 265 (7th Cir.1982). In particular, Mr. Barks-dale asserts that, without the state court records, the district court was unable properly to determine whether the state court’s finding that Mr. Barksdale “failed to show that the delay was not due to his negligence” was based on a “full and fair hearing resulting in findings supported by the record,” as required by Jones, 676 F.2d at 264. If not based on a full and fair hearing, factual findings of the state court are not entitled to a presumption of correctness under 28 U.S.C. § 2254(d). Like the district court, we do not have before us the state court record in Mr. Barksdale’s petition for post-conviction relief, and we do not know whether or not a hearing was held on the subject of culpable negligence. In his pro se habeas corpus petition in the district court, Mr. Barksdale said only that the state court had denied his post-conviction petition “without allowing the Prisoner to exhibit facts showing culpable negligence.” R.l at 5. In his pro se brief to the district court, Mr. Barksdale stated that “[w]hen petitioner attempted to raise the issue of culpable negligence due to his pending Federal petition before Judge McGarr, the State Court denied the Post Conviction without any hearing or ruling on the Post Conviction’s issues.” R.ll at 2. Affirming the dismissal of Mr. Barksdale’s post-conviction petition, the Illinois appellate court stated that the trial court had dismissed Mr. Barksdale’s petition “on the basis that [it] had not been filed within 10 years of the judgments and that defendant failed to show that the delay was not due to his negligence.” People v. Barksdale, Nos. 1-85-1785 & 1-85-1786, Order at 3 (Ill.App.Ct. Aug. 18, 1988) [172 Ill.App.3d 1165, 136 Ill.Dec. 574, 544 N.E.2d 1349 (table)]. The appellate court also found that “there was no showing that his delay was not due to his culpable negligence.” Id. at 3-4. [172 IIl.App.3d 1165, 136 Ill.Dec. 574, 544 N.E.2d 1349 (table)]. These statements may mean that Mr. Barksdale made no allegations in his petition concerning culpable negligence, or that he made allegations, but these allegations, taken as true, did not show a lack of culpable negligence. In either of these cases, the petitioner is not entitled to a hearing on the facts — there is no factual dispute. The Supreme Court of Illinois has long held that the Illinois Post-Conviction Hearing Act places the burden on the petitioner to allege in his petition facts showing that the delay was not due to his culpable negligence. See People v. Reed, 42 Ill.2d 169, 246 N.E.2d 238 (1969); People v. Lansing, 35 Ill.2d 247, 220 N.E.2d 218, 219 (1966). Whether a petition alleges sufficient facts to show a lack of culpable negligence is a question involving the interpretation and application of state law. As we noted in Williams v. Lane, 826 F.2d 654, 659 (7th Cir.1987), “[a] federal court sitting in habe-as corpus is required to respect a state court's finding of waiver or procedural default under state law. Federal courts do not sit to correct errors made by state courts in the interpretation and application of state law.” See also Coleman v. O’Leary, 845 F.2d 696, 699-700 (7th Cir.), cert. denied, 488 U.S. 972, 109 S.Ct. 507, 102 L.Ed.2d 542 (1988). However, there is a third possibility. Mr. Barksdale may be alleging that the state court’s refusal to hear him on the issue of culpable negligence was so arbitrary that it cannot be the basis of procedural default. See Prihoda v. McCaughtry, 910 F.2d 1379, 1383 (7th Cir.1990). The district court, not having the record, assumed in Mr. Barksdale’s favor that Mr. Barksdale had “presented grounds for the delay, but that the state courts ignored them.” Memorandum Opinion and Order, No. 89 C 4068 at 6 (October 31, 1989). Nonetheless, in examining the reasons put forth by Mr. Barksdale for his long delay, the district court found that with those reasons Mr. Barksdale had explained only why he waited until 1983, but that he had offered no explanation for the further delay from 1983 until 1985. Thus, the district court independently concurred in the ruling by the state courts that Mr. Barksdale had made no showing of a lack of culpable negligence. We agree, although on a somewhat different basis. After the 1979 dismissal of Mr. Barksdale’s federal habeas petition for failure to exhaust state remedies, Mr. Barksdale did not again attempt to challenge his convictions until 1985, when he returned to the state court to commence the litigation presently under review. His 1983-84 federal habeas petitions, which he offers as an excuse for failing to commence the state post-conviction review, did not involve his 1972 conviction. They concerned denial of parole. Mr. Barksdale does not explain why he waited from 1979 until 1985 to raise his claim of ineffective appellate counsel in state court. That in 1983 and part of 1984 he was occupied in federal court with challenges to denial of parole cannot justify this long delay. In fact, then, Mr. Barksdale offers no reasonable explanation for his long delay in seeking relief in state court against his convictions. Therefore, even if the state court did refuse to hear evidence of Mr. Barksdale’s 1983-84 litigation, this refusal did not render its determination of procedural default any less correct. Indeed, Mr. Barksdale can point to no precedent in Illinois caselaw that would indicate that the facts he has alleged show a lack of culpable negligence. , In short, the dismissal of Mr. Barksdale’s untimely petition by the Illinois state courts rests on independent and adequate state procedural grounds. B. Cause and Prejudice Mr. Barksdale also argues that, because he was proceeding pro se when he filed his state post-conviction petition, the district court should have applied the “deliberate bypass” test of Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), rather than the “cause and prejudice” test of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Finally, he contends that, even if the latter test is applied, the “cause” element should be applied less stringently in cases involving pro se litigants. Mr. Barksdale’s contention that the deliberate bypass test should apply to his case was foreclosed when the Supreme Court overruled Fay v. Noia shortly after we heard oral argument in this case. In Coleman v. Thompson, — U.S.-, 111 S.Ct. 2546, 2565, 115 L.Ed.2d 640 (1991), the Court made clear that the cause and prejudice test applies to all state procedural defaults: We now make it explicit: In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice. Fay was based on a conception of federal/state relations that undervalued the importance of state procedural rules. The several cases after Fay that applied the cause and prejudice standard to a variety of state procedural defaults represent a different view. We now recognize the important interest in finality served by state procedural rules, and the significant harm to the States that results from the failure of federal courts to respect them. See also Caswell v. Ryan, 953 F.2d 853, 861 n. 7 (3rd Cir.1992); Andrews v. Deland, 943 F.2d 1162, 1189 n. 41 (10th Cir.1991); Farrell v. Lane, 939 F.2d 409, 411-12 (7th Cir.1991) (applying cause prong of cause and prejudice test in case involving pro se post-conviction petition), cert. denied, — U.S. -, 112 S.Ct. 387, 116 L.Ed.2d 337 (1991). The Supreme Court has defined “cause” as some external objective factor, such as interference by officials or unavailability of the factual or legal basis for a claim, which impeded compliance with the state’s procedural rule. Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986). Mr. Barksdale contends, however, that, if he is required to show cause and prejudice, a less stringent definition of cause is appropriate for pro se litigants. This contention is unavailing, for “there is no constitutional right to an attorney in state post-conviction proceedings.” Coleman, 111 S.Ct. at 2566 (citing cases). “ ‘[T]hus, a petitioner’s “failure to act or think like a lawyer cannot be cause for failing to assert a claim.” ’ ” Henderson v. Cohn, 919 F.2d 1270, 1272 (7th Cir.1990) (quoting Harmon v. Barton, 894 F.2d 1268, 1275 (11th Cir.1990) (quoting Smith v. Newsome, 876 F.2d 1461, 1465 (11th Cir.1989)), cert. denied, — U.S.-, 111 S.Ct. 96, 112 L.Ed.2d 68 (1990)); see also McCoy v. Newsome, 953 F.2d 1252 (11th Cir.1992) (“status as a pro se petitioner, standing alone, cannot be considered when determining whether he has shown cause for the default”). Because we conclude that Mr. Barksdale has not shown cause for his procedural default, we need not consider the prejudice prong of the cause and prejudice test. See Henderson, 919 F.2d at 1273. Conclusion For the foregoing reasons, the judgment of the district court is affirmed. Affirmed. ORDER April 28, 1992. The petition for rehearing is DENIED. One matter need be noted. The appellant claims that this court affirmed the judgment of the district court “without any discussion of ‘the reasonable time’ rule whatsoever.” Petition at 3. This matter was discussed explicitly at footnote 9 of the court’s opinion. . Even though the record has been supplemented by respondent in response to the panel's request at oral argument, it remains unclear whether Mr. Barksdale has challenged his 1972 conviction in five or six habeas petitions. The confusion results from the fact that Mr. Barks-dale was convicted again of rape and deviate sexual assault in 1973, and some of these earlier petitions involved his 1973 conviction as well as the 1972 conviction at issue here, and one of them may have involved only the 1973 conviction. . This court denied his application for a certificate of probable cause by unpublished order on August 15, 1984. . Once again, this court denied his request for a certificate of probable cause by unpublished order dated June 16, 1986. . The Illinois court inadvertently listed these issues as challenges to the 1973 judgment; however, it is quite clear that they relate to the 1972 judgment. . See Ill.Ann.Stat. ch. 38, ¶ 122-1 (Smith-Hurd 1990) ("No proceedings under this Article shall be commenced more than 10 years after rendition of final judgment, unless the petitioner alleges facts showing that the delay was not due to his culpable negligence.”). . See Ill.Ann.Stat. ch. 38, ¶ 122-1 (Smith-Hurd 1990) (Historical and Statutory Notes). Effective January 1, 1992, the limitation period is three years. See Ill.Ann.Stat. ch. 38, ¶ 122-1 (Smith-Hurd Supp.1991) (citing P.A. 86-1210, § 2). . This holding is not challenged in this appeal, and we therefore do not discuss the issue further. . We note that our analysis applies only to Mr. Barksdale’s attempt to raise his ineffective assistance of counsel claim, not to his search and seizure claim. The district court dismissed Mr. Barksdale's search and seizure claim under Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), just as we had earlier done in United States ex rel. Barksdale v. Sielaff, 585 F.2d 288, 290 (7th Cir.1978), cert. denied, 441 U.S. 962, 99 S.Ct. 2409, 60 L.Ed.2d 1067 (1979). Mr. Barksdale has not challenged the district court's judgment on that issue in this appeal. We also note that the government did not raise, and we therefore do not reach, the issue of whether Mr. Barksdale's present petition was an abuse of the writ. See McCleskey v. Zant, — U.S.-, 111 S.Ct. 1454, 1470, 113 L.Ed.2d 517 (1991). . Mr. Barksdale also points out that in People v. Robinson, the Illinois court left open the possibility that a claim filed “within a reasonable time after the effective date of the amendment” might not be time-barred despite the shortened limitation period. 487 N.E.2d at 1266. However, in Bates, 529 N.E.2d at 230, the Illinois Supreme Court held that, because paragraph 122-1 itself permitted the limitation period to be excused if the petitioner could show that the delay was not due to "culpable negligence,” this provision created a " 'safety valve,' unique to the Post Conviction Hearing Act, which acts as a substitute for the judicially imposed 'reasonable time’ rule.” Even though the availability of a “reasonable time” exception thus was not definitively determined until 1988, it is clear that a delay of more than one year from the effective date would not have been deemed "reasonable” by the Illinois courts. In fact, the Robinson court itself refused to apply the “reasonable time” exception to a delay of more than one year. 487 N.E.2d at 1267. . The district court's ruling was based on a factual error. In his petition for habeas corpus, Mr. Barksdale did not inform the district court that one of his 1983 petitions was not terminated until June 1984, nearly six months after the effective date of the amendment to the Illinois Post-Conviction Hearing Act. That information was included only in his brief. However, as we note below in our discussion, Mr. Barksdale’s 1983 and 1984 federal habeas litigation did not concern his convictions, as the district court believed, but rather denial of parole. . We note that Illinois courts have construed this exception to the limitations period very narrowly; in fact, "during the more than forty years since the provision was included, the Illinois courts have failed to produce even a single published opinion in which the court found a lack of culpable negligence.” Harris v. DeRobertis, 932 F.2d 619, 622 (7th Cir.1991); see also People v. Bates, 124 Ill.2d 81, 124 Ill.Dec. 407, 529 N.E.2d 227 (1988). Accordingly, we have held that a petitioner for federal habeas corpus relief who had not filed a petition for post-conviction relief in Illinois state courts and whose petition there would be untimely under paragraph 122-1 need not return to state court to file an untimely post-conviction petition on the chance that he could show a lack of culpable negligence. Harris, 932 F.2d at 623-34. Instead, such a petitioner is held to have exhausted his state remedies and to be barred from federal relief by his procedural default unless he can demonstrate "cause and prejudice." .In light of these recent cases, it is clear that the dictum in Buelow v. Dickey, 847 F.2d 420, 429 (7th Cir.1988), cert. denied, 489 U.S. 1032, 109 S.Ct. 1168, 103 L.Ed.2d 227 (1989), distinguishing counseled and pro se litigants in this regard, is not the law in this circuit. Cf. United States ex rel. Hopkins v. Peters, No. 88 C 4050, 1989 WL 36222 at *3 (N.D.Ill. Apr. 12, 1989) (applying cause and prejudice test, but noting, "where Petitioner is appearing pro se, we hesitate to rely on cause and shall go on to consider whether Petitioner can show actual prejudice"), aff'd without published opinion, 909 F.2d 1486 (7th Cir.1990). Even prior to the Supreme Court's recent decision overruling Fay, several circuits had held that the cause and prejudice test applies to pro se litigants. See Ellis v. Lockhart, 875 F.2d 200, 202 (8th Cir.1989); Alexander v. Dugger, 841 F.2d 371, 374 n. 3 (11th Cir.1988): Hughes v. Idaho State Bd. of Corrections, 800 F.2d 905, 908 (9th Cir.1986). . Although it is not relevant here, the Supreme Court also noted: Similarly, if the procedural default is the result of ineffective assistance of counsel, the Sixth Amendment itself requires that responsibility for the default be imputed to the State, which may not "conducft] trials at which persons who face incarceration must defend themselves without adequate legal assistance.” Cuyler v. Sullivan, 446 U.S. 335, 344, 100 S.Ct. 1708, 1716, 64 L.Ed.2d 333 (1980). Ineffective assistance of counsel, then, is cause for a procedural default. Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986). . Accord Prihoda v. McCaughtry, 910 F.2d 1379, 1386 (7th Cir.1990). . See also McKinnon v. Lockhart, 921 F.2d 830, 832-33 n. 5 (8th Cir.1990) ("pro se status and lack of familiarity with the intricacies of the law cannot alone constitute cause"), cert. denied, — U.S. -, 111 S.Ct. 2805, 115 L.Ed.2d 978 (1991); Hughes v. Idaho State Bd. of Corrections, 800 F.2d 905, 909 (9th Cir.1986) ("When a pro se petitioner is able to apply for post-conviction relief to a state court, the petitioner must be held accountable for failure to timely pursue his remedy to the state supreme court."). . We are presented with no reason to conclude that Mr. Barksdale’s 1972 conviction was “a fundamental miscarriage of justice,” Coleman, 111 S.Ct. at 2565, and we thus are not free to ignore his procedural default on that ground. 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_genapel1	G	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed appellant. UNITED STATES of America, Plaintiff-Appellee, v. Bobby Hugh HERRING, Geraldine, Sims Holley, a/k/a Tokie Holley, Elmer Frank Taylor, Thomas Jan Wilkerson, a/k/a Tommy Wilkerson, Charles Anthony Hatley, a/k/a Tony Hatley, a/k/a Rat, Lamont Lawrence Meyers, James Michael Igo, a/k/a Mike Igo, Robert Joseph Carter, a/k/a Buddy Carter, Leon Robert Morrison, a/k/a Bobby Morrison, Jack Warren Ruff, a/k/a Whitey, Robert Alex Hooks, a/k/a Bob Hooks, Defendants-Appellants. No. 90-7039. United States Court of Appeals, Eleventh Circuit. March 11, 1992. James W. May, Gulf Shores, Ala., for Herring. James E. Atchison, Hess, Atchison & Horne, William B. Jackson, II, Mobile, Ala., for Holley. Gregory M. Friedlander, Mobile, Ala., for Wilkerson. Edward R. Tibbets, Mobile, Ala., for Meyers. Reggie Stephens, Mobile, Ala., for Igo. W.A. Kimbrough, Jr., Turner, Onderdonk & Kimbrough, PA, Mobile, Ala., for Carter. Delano J. Palughi, Mobile, Ala., for Morrison. Paul D. Brown, Mobile, Ala., for Hooks. Judy A. Newcombe, Spanish Fort, Ala., for Hatley. James Byrd, Mobile, Ala., for Taylor. Thomas Jeffery Glidewell, Glidewell and Associates, Mobile, Ala., for Ruff. J.B. Sessions, III, U.S. Atty., Donna E. Barrow, Asst. U.S. Atty., Mobile, Ala., for U.S. Before FAY and HATCHETT, Circuit Judges, and GIBSON, Senior Circuit Judge. Honorable Floyd R. Gibson, Senior U.S. Circuit Judge for the Eighth Circuit, sitting by designation. HATCHETT, Circuit Judge: After reviewing this criminal case in which the issues were hotly contested, we affirm the convictions and the sentences because the district court did not err in its rulings, and the prosecutor’s activities did not constitute misconduct requiring a new trial. I. FACTS On December 20, 1987, FBI agents executed sixteen search warrants in the Mobile, Alabama, and Pascagoula, Mississippi areas at the residences of Charles Hatley, James Igo, Lamont Meyers, Robert Carter, Thomas Wilkerson, and Walter Dixon. A. Wilkerson At Wilkerson’s residence, in an upstairs bedroom which had been converted into an office, the FBI agents found Wilkerson and Robert Hooks with four television sets tuned to football games, and two telephones on each of the two desks in the room. Two of these phones had speed dialing capabilities. Additionally, the agents found gambling records including line sheets, betting slips, customer lists, sports schedules, account sheets, reference materials, and other gambling paraphernalia. In the drawer of the desk where Wilkerson was seated, the agents recovered $12,691 in United States currency and $300 in cash attached to a piece of paper bearing the name “Igo.” Wilkerson’s desk also contained two weapons, one of which was loaded. While at the residence, the agents placed a recording device on one of the telephones in the office and recorded numerous calls from customers wanting to place bets on football games. After being given his Miranda rights, Hooks executed a written waiver of rights form, and stated that he had been working for Wilkerson for the past two to three months booking bets over the telephone. Hooks also told the agents that Wilkerson’s wife and two sons participated in taking bets. On January 1, 1988, law enforcement officers conducted a second search of Wilkerson’s home. Officers went again to the upstairs office and found Wilkerson and Robert Morrison present. Wilkerson had replaced all of the equipment that had been previously seized in the first raid, including televisions, calculators, and telephones. Once again, gambling records and paraphernalia were seized. This time, FBI agents conducted a search of a vehicle parked in the driveway of the home and found in the trunk of the vehicle a brown bag filled with gambling records. Along with the other evidence, the contents of the brown bag were sent to the FBI gambling laboratory in Washington, D.C. Marian Moore, a fingerprint specialist at the laboratory, analyzed the contents of the bag and the seized records and determined that twenty-one latent prints were the prints of Morrison. B. Carter In December, the FBI agents also searched Carter’s apartment and found three television sets tuned to football games in the same room with two desks, a copy machine, and three telephones. The agents seized hundreds of gambling records including line sheets, customer account lists, sports schedules, betting slips, mailing lists, labels, and other paraphernalia. The line sheets seized from Carter’s apartment and Wilkerson’s home matched. C. Hatley, Igo, Meyers, and Dixon Agents conducted a similar search at Hatley’s home and seized similar documents, paraphernalia, and cash. Federal agents executed a separate search warrant for the vehicle Hatley used and seized from the vehicle additional gambling records, including betting slips, personal banking records, and football schedules. Searches at the homes of Igo, Meyers, and Dixon resulted in similar findings. II. PROCEDURAL HISTORY The appellants, along with ten others, were indicted in a two-count indictment charging that they had engaged in an illegal gambling business in violation of 18 U.S.C. §§ 1955 and 2, and that they had engaged in a conspiracy in violation of 18 U.S.C. § 371. Pursuant to a plea agreement, Dixon testified that Taylor placed bets with him, and that Taylor was a “bookmaker.” Dixon also testified that from September, 1987, through December, 1987, he and Carter transacted gambling business on almost a daily basis with the exchange of money through a courier named “Ruff.” Dixon further testified that before placing a bet he would first get the line information from Carter, Wilkerson, Holley, and Taylor. Witnesses testified that Bobby Herring received bets from 1986 through 1988 through the telephone. Several witnesses also testified that they knew Wilkerson, Carter, Hatley, Meyers, Igo, Holley, Hooks, Morrison, Ruff, Herring, and Taylor (the bookmakers) and had placed bets with them paying “juice” on losing bets. At trial, FBI Special Agent Ray Stirling, an expert in the field of gambling records analysis, testified that in his opinion the records indicated the following time spans of gambling activity: (1) Carter’s records spanned October 13, 1987, through January 2, 1988; (2) Hatley’s records spanned September 14, 1987, through December 20, 1987; (3) Igo’s records spanned September 2, 1987, through December 20, 1987; (4) Meyers’s records spanned November 24, 1987, through December 20, 1987; (5) Dixon’s records spanned November 24, 1987, through December 20, 1987; and (6) Wilkerson’s records spanned October 21, 1987, through January 1, 1988. Additionally, Stirling testified that approximately $5,151,080 in wagers were placed with Carter; $121,010 in wagers were placed with Hatley; $48,465 in wagers were placed with Igo; $29,445 in wagers were placed with Meyers; $157,815 in wagers were placed with Dixon; and $1,183,730 in wagers were placed with Wilkerson. Stirling also testified that in his opinion, the betting ring was structured as follows: Carter and .Hatley were exchanging wagers; Igo was transferring wagers to Carter; Carter wagering with Igo; and Carter and Igo exchanged wagers with Holley and Herring. Additionally, Stirling testified that wagers were exchanged between Carter and Ruff, Hatley and Holley, Hatley and Taylor, Igo and Wilkerson, Dixon and Carter, Dixon and Wilkerson, and Wilkerson and Hatley. Wilkerson, Carter, Hatley, Holley, Ruff, Hooks, and Morris were convicted on both counts. Meyers, Igo, Herring, and Taylor were convicted only of the conspiracy count. - III. ISSUES The appellants raise the following issues on appeal: (1) whether the district court erred in allowing the expert to express an opinion regarding layoff bets, based on a definition inconsistent with the law of this circuit; (2) whether a sufficient degree of prosecutorial misconduct existed making the trial unfair; (3) whether excessive or prejudicial delay existed in the furnishing of the transcript necessary for completion of the record on appeal; (4) whether the district court erred in denying an evidentia-ry hearing on Hatley and Wilkerson’s motions to suppress evidence; (5) whether the district court abused its discretion in admitting certain evidence; (6) whether the government’s response to a defense counsel’s objection during closing argument was an impermissible and prejudicial comment on Carter’s decision not to testify; (7) whether the government’s cross-examination of the appellants’ expert witnesses was proper; (8) whether the judge’s conduct denied the appellants a fair trial; (9) whether the district court properly denied the motion for severance; (10) whether the district court abused its discretion in admitting the government’s tape recordings; (11) whether the search of Wilkerson’s vehicle exceeded the scope of the warrant; (12) whether the district court committed reversible error in failing to instruct the jury as the appellants requested; and (13) whether the evidence was sufficient to sustain the convictions. IV. DISCUSSION A. The Expert Witness Despite the numerous errors the appellants claim, only two of the issues they raise merit extended discussion. The appellants contend that the linchpin in the prosecution’s case was Agent Ray Stirling, the sole expert witness the government produced to show the interdependence of the appellants based on the exchange of layoff bets. The appellants argue that aside from the testimony of Agent Stirling, the prosecution’s case was comprised mostly of misconduct which denied them a fair trial. Thus, Agent Stirling’s expert testimony regarding layoff bets and the claims of prosecutorial misconduct merit discussion. The appellants argue that the expert testimony of FBI Agent Ray Stirling regarding the definition of a layoff bet was inconsistent with the law of this circuit and thus constituted reversible error. Specifically, the appellants contend that Agent Stirling’s improper legal definition of a layoff bet was erroneously applied to the evidence in this case to create an interdependence between the appellants which did not exist. Since the opinions of the former Fifth Circuit before October 1, 1981, are binding on this court, this court’s definition of a layoff bet is governed, in part, by Fifth Circuit law which restricts layoff bets to bets bookmakers place for the purpose of ridding themselves of excess bets to achieve a balanced book. See Bonner v. City of Prichard, Alabama, 661 F.2d 1206 (11th Cir.1981). See United States v. Avarello, 592 F.2d 1339, 1351 n. 21 (5th Cir.), cert. denied, 444 U.S. 844, 100 S.Ct. 87, 62 L.Ed.2d 57 (1979). In order to assist the nongambler understand the concept of a layoff bet, we provide an excerpt from what the Fifth Circuit termed the anatomy of a bookmaking operation. In United States v. Milton, 555 F.2d 1198, 1200 (5th Cir.1977), the court revisited its explanation of the bookmaking operation that it fully explained in United States v. Box, 530 F.2d 1258, 1260-62 (5th Cir.1976), and provided the following brief explanation: [A] successful bookmaker is not a gambler but a business man. He makes his profit not from winning bets, but from collecting a certain percentage of the amount bet that the losing bettors must pay for the privilege of betting. This percentage, usually ten percent, is called ‘juice’ or ‘vigorish.’ A bookmaker normally has a ‘line’ or ‘point spread’ on each game on which he is taking bets. The calculation is that an equal number of wagered dollars will be attracted to either side of the point spread. Thus, if the line in [college] football is [Miami] by six over [Washington], the bookmaker expects some bettors to wager as much on [Washington] to win or to lose by six or fewer points as others will bet on [Miami] to prevail by more than six points. When this is true, the bookmaker is guaranteed a profit of exactly ten percent. When it is not, he may win more than ten percent or fail to clear ten percent. When the bets placed with a bookmaker are unbalanced, the risk-averse entrepreneur will adopt one of two strategies. The bookmaker may adjust his line up or down until it reaches equilibrium. More likely, he will seek to ‘layoff’ a bet to another bookmaker or to a mere bettor. That is, the bookmakers will bet the more popular of the two teams in the amount (ideally) by which bets on that team exceed the sum bet on the disfavored team at a given point spread. If the popular team wins, he will thus pay out to his bettors more than he took in, but will offset this disbursement by his own layoff winnings. By this device, the bookmaker seeks to balance his books and assure himself neither more nor less than a ten percent profit. Milton, 555 F.2d at 1200 (footnotes omitted). See Avarello, 592 F.2d at 1343 n. 5; Box, 530 F.2d at 1260-62. Thus, for purposes of determining whether a bet is a layoff bet, courts must examine (1) the purpose of the bet, and (2) the occupation of the person making the bet. See Box, 530 F.2d at 1262. Unless bookmakers place bets for the purpose of ridding themselves of excess bets in order to achieve a balanced book, the bet is not a layoff bet. See Box, 530 F.2d at 1262. In this case, when asked to define a layoff bet, Agent Stirling responded, “very basically, a layoff is a wager from one bookmaker to another bookmaker. Now, that layoff could be — the motive for the layoff could be from several different factors. Most generally, layoff is recognized as a balancing tool.” Contrary to the appellants’ argument, Agent Stirling’s definition of a layoff bet is consistent with the law of the Eleventh Circuit and recognizes that bookmakers can and do make personal wagers which are not layoff bets. The expert clearly established that the occupation of the bettor had to be “bookmaker” and the bet had to be utilized as a “balancing tool.” The fact that the expert preceded his statement with the words “most generally” is of no significance. Based upon this definition, Agent Stirling used the term layoff or laid off bet to explain exhibits to the jury and to characterize transactions between the bookmakers. The district court’s ruling allowing this definition of layoff did not constitute error. See Avarello, 592 F.2d at 1351 n. 21. Moreover, as in Avarello, the district court rendered any possible misunderstanding about the definition of “layoff bet” harmless with a proper jury instruction as to the weight to be given expert testimony and as to this circuit’s definition of a layoff bet. In the charge to the jury, the district court instructed that a bookmaker may take wagers on both teams in a sporting event. When a bookmaker receives an excess of bets on one side of a sporting event, in an effort to balance his books and reduce his risk of loss, he may layoff this excess by betting that amount on the team — on the team on which the excess is placed. In that way, a bookmaker directs the excess of his customers’ bets either to another bookmaker who can use more bets on that side of the line, or to any other individual willing to accept the bet. All bets between bookmakers, however, are not necessarily layoff bets. A layoff bet should be defined solely in relation to the occupation of and the purpose of the person making the bet. The occupation and motives of the person accepting the bet are irrelevant to the definition. Additionally, the district court stated in its charge to the jury that “merely because an expert witness has expressed an opinion, does not mean that you must accept that opinion.” Thus, the district court carefully instructed the jury concerning the necessary factual conditions for linking one bookmaker to another based on the exchange of layoff bets, and the court admonished the jury to give no special deference to the expert testimony of Agent Stirling. The district court took adequate steps to protect against the danger that the expert’s opinion would be accepted as a legal conclusion. See Avarello, 592 F.2d at 1352; Milton, 555 F.2d at 1204-05. Furthermore, the district court’s instructions regarding layoffs were consistent with the testimony of the appellants’ expert witnesses. The district court’s instructions gave the jury the proper law, and nothing indicates that the jurors did not abide by the court’s instructions. This court has held that “a jury is presumed to follow jury instructions.” Adams v. Wainwright, 709 F.2d 1443, 1447 (11th Cir.1983), cert. denied, 464 U.S. 1063, 104 S.Ct. 745, 79 L.Ed.2d 203 (1984); see Grizzell v. Wainwright, 692 F.2d 722, 726-27 (11th Cir.1982), cert. denied, 461 U.S. 948, 103 S.Ct. 2129, 77 L.Ed.2d 1307 (1983); United States v. Kabbaby, 672 F.2d 857, 863 (11th Cir.1982). Thus, the district court properly instructed the jury both as to the weight to be given expert testimony and the Eleventh Circuit’s definition of a layoff bet. See United States v. Jones, 712 F.2d 115, 121 (5th Cir.1983); Avarello, 592 F.2d at 1392. B. Prosecutorial Misconduct Each of the appellants also contend that prosecutorial misconduct existed during the trial and that the cumulative effect of the misconduct denied them a fair trial. One incident of alleged prosecutorial misconduct that several of the appellants raise is the prosecutor’s comment that “Mr. Carter hasn’t testified.” Carter, one of the appellants, claimed that this was an improper comment on his silence in violation of his Fifth Amendment privilege against self-incrimination. This court has held that “[t]he standard for determining if a prosecutor has made an impermissible comment on a defendant’s right not to testify is ‘whether the statement was manifestly intended or was of such a character that a jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.’ ” United States v. Watson, 866 F.2d 381, 386 (11th Cir.1989) (quoting United States v. Vera, 701 F.2d 1349, 1362 (11th Cir.1983) (quoting United States v. Dearden, 546 F.2d 622, 625 (5th Cir.), cert. denied, 434 U.S. 902, 98 S.Ct. 295, 54 L.Ed.2d 188 (1977))). Additionally, this court has noted that “in applying this test, the court must ‘look to the context in which the statement was made in order to determine the manifest intention which prompted it and its natural and necessary impact upon the jury.’ ” United States v. Vera, 701 F.2d 1349, 1362 (11th Cir.1983) (quoting United States v. Forrest, 620 F.2d 446, 455 (5th Cir.1980)). We recognized in Watson that the district court is responsible for making this determination, because the district court has the opportunity to observe the prosecutor’s demeanor first hand. See Watson, 866 F.2d at 386. Thus, the district court’s determination of whether manifest intent was present is reviewed only for abuse of discretion. See Watson, 866 F.2d at 386. The prosecutor did not argue that Carter could have or should have testified. The record shows that the prosecutor’s comment was fairly intended to rebut a defense lawyer’s improper objection. After reviewing the comment in the context in which it was made, we hold that the district court did not abuse its discretion in determining that the prosecutor’s comment was not manifestly intended to comment on Carter’s right not to testify. The appellants also contend that the following acts constituted prosecutorial misconduct: (1) the prosecutor discussed Agent Mitchell’s testimony with Agent Glass before Agent Glass testified, in violation of the rule of exclusion of witnesses; (2) the prosecutor lied concerning the fact that she had discussed Agent Mitchell’s testimony with Agent Glass, even after Agent Glass admitted discussing the testimony; (3) the prosecutor introduced the issue of nonpayment of taxes during her closing argument when no such evidence had been presented during the trial; and (4) the prosecutor made comments in her closing argument which suggested that the appellants’ courtroom behavior demonstrated a lack of respect for the court and the jury. This court has held that “[rjeversal on the basis of prosecutorial misconduct requires that the misconduct be ‘so pronounced and persistent that it permeates the entire atmosphere of the trial.’ ” United States v. McLain, 823 F.2d 1457, 1462 (11th Cir.1987) (quoting United States v. Blevins, 555 F.2d 1236, 1240 (5th Cir.1977), cert. denied, 434 U.S. 1016, 98 S.Ct. 733, 54 L.Ed.2d 761 (1978)); see United States v. Weinstein, 762 F.2d 1522 (11th Cir.1985), modified and reh’g denied, 778 F.2d 673 (11th Cir.1985), cert. denied, 475 U.S. 1110, 106 S.Ct. 1519, 89 L.Ed.2d 917 (1986); United States v. Alanis, 611 F.2d 123 (5th Cir.), cert. denied, 445 U.S. 955, 100 S.Ct. 1607, 63 L.Ed.2d 791 (1980). Additionally, we have held that prosecutorial misconduct may be rendered harmless by curative instructions to the jury. See Weinstein, 762 F.2d at 1542; United States v. Nickerson, 669 F.2d 1016, 1020 (5th Cir. Unit B 1982); United States v. Lichenstein, 610 F.2d 1272, 1282 (5th Cir.), cert. denied, 447 U.S. 907, 100 S.Ct. 2991, 64 L.Ed.2d 856 (1980). Thus, “[pjrosecutorial misconduct is a basis for reversing an appellant’s conviction only if, in the context of the entire trial in light of any curative instruction, the misconduct may have prejudiced the substantial rights of the accused.” United States v. Lopez, 898 F.2d 1505, 1511 (11th Cir.1990); United States v. Reed, 887 F.2d 1398, 1402 (11th Cir.1989), cert. denied, 493 U.S. 1080, 110 S.Ct. 1136, 107 L.Ed.2d 1041 (1990). In this case, the prosecutor did not engage in conduct so pronounced and persistent that it permeated the entire atmosphere of the trial. For approximately five weeks, thirteen defense lawyers representing thirteen defendants engaged the prosecutor in battle (as they had a right to do) and the prosecutor introduced thousands of documents into evidence. It was a hotly contested trial. For example, on one occasion, after the jury had been removed from the courtroom, the district court stated: [AJ11 of you are officers of the court. You are all competent and capable of defending your clients. But if you are trying to confuse the issues to get error into this record, I’ll say this: that you’re really, two or three of you, are really trying hard to do that. And I recognize that. But I don’t appreciate it and I don’t think it — I don’t think it’s the kind of thing that officers of the court ought to be engaging in. The district court stated in another side bar conference: [YJou guys are officers of this court. Now, you’ve been trying to try the court from the very beginning. First you tried to try me, and that didn’t work. You tried to try Judge Milling, and that didn’t work. You’ve been trying the prosecution all during this case because — I don’t know why you don’t get out there and defend your own clients rather than trying the government and trying everybody else. Now, you’ve been trying the judge all the way through this thing. You come up to the bench and you don’t address the issue. You want to address something that happened two or three weeks ago. You never talk about the issue. As we stated earlier: the trial was long, the issues were hotly contested, and the lawyers were doing their jobs in placing before the jury facts and theories to aid their clients. Nevertheless, the district judge remained impartial, assessed the prejudicial effect of the prosecutor’s remarks or actions, and issued curative instructions when needed. We give considerable weight to the district court’s assessment of the prejudicial effect of the prosecutor’s remarks and conduct. See Weinstein, 762 F.2d at 1542; Nickerson, 669 F.2d at 1020. Thus, we hold that although the prosecutor should not have made some comments, in the context of the entire trial, and in the light of the district court’s curative instructions, the statements were of no consequence and constituted harmless error. We have reviewed all other claimed errors and find each of them to be without merit. V. CONCLUSION Accordingly, the convictions and judgments are affirmed. AFFIRMED. . "Juice” is a required percentage of a losing bet, usually ten percent, that losing bettors pay for the privilege of betting. This concept makes a $100 bet in essence a $110 risk. . The appellants also contend that the district judge’s act of touching a defense lawyer on the arms, face, and mouth during a side bar discussion in the presence of the jury was improper and created an overwhelming impression that he was not impartial, and thus denied the appellants a fair trial. After several complaints from the law clerk, the clerk, and the prosecutor regarding the excessive noise at the side bar, the district judge merely touched the lawyer in order to get his attention and have him lower his voice. Additionally, the side bar conference was held away from the jury, and over thirty people were present at the conference obscuring any view of the touching from the jury. Thus, we hold that no appearance of partiality existed and conclude that this issue is without merit. Question: What is the nature of the first listed appellant? A. private business (including criminal enterprises) B. private organization or association C. federal government (including DC) D. sub-state government (e.g., county, local, special district) E. state government (includes territories & commonwealths) F. government - level not ascertained G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization) H. miscellaneous I. not ascertained Answer:
songer_appel1_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. JAX ICE & COLD STORAGE CO., a Corporation, Trading as Jax Brewing Company, Appellant, v. Conway P. COE, United States Commissioner of Patents, and Jackson Brewing Company, a Corporation, Appellees. No. 7554. United States Court of Appeals for the District of Columbia. Argued Nov. 12, 1940. Decided Dec. 9, 1940. Writ of Certiorari Denied April 7, 1941. See 61 S.Ct. 837, 85 L.Ed.-. Thomas L. Mead, Jr., of Washington, D. C., and Ernest P. Rogers, of Atlanta, Ga., for appellant. W. W. Cochran, U. S. Patent Office, R. F. Whitehead, and Herbert H. Porter, all of Washington, D. C., for appellees. Before STEPHENS, VINSON, and EDGERTON, Associate Justices. PER CURIAM. This case is governed by Coe v. Hobart Manufacturing Company, 70 App.D.C. 2, 102 F.2d 270, and J. C. Eno (U.S.) Limited v. Coe, 70 App.D.C. 337, 106 F.2d 858. We have carefully considered the earnest and thoughtful argument of appellant’s counsel that we should overrule those cases, but we are still of opinion that they were rightly decided. The judgment appealed from is therefore affirmed. Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case? A. agriculture B. mining C. construction D. manufacturing E. transportation F. trade G. financial institution H. utilities I. other J. unclear Answer:
songer_usc2	29	What follows is an opinion from a United States Court of Appeals. The most frequently cited title of the U.S. Code in the headnotes to this case is 29. Your task is to identify the second most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if fewer than two U.S. Code titles are cited. To choose the second title, the following rule was used: If two or more titles of USC or USCA are cited, choose the second most frequently cited title, even if there are other sections of the title already coded which are mentioned more frequently. If the title already coded is the only title cited in the headnotes, choose the section of that title which is cited the second greatest number of times. UNITED STATES of America, Appellee, v. Edwin L. SULLIVAN, Defendant, Appellant. No. 74-1020. United States Court of Appeals, First Circuit. Argued May 6, 1974. Decided June 4, 1974. Peter Lawson Kennedy, Providence, R. I., with whom Adler, Pollock & Sheehan, Providence, R. I., was on brief, for defendant, appellant. Lauren S. Kahn, Dept, of Justice, with whom Lincoln C. Almond, U. S. Atty., S. Michael Levin, Sp. Atty., Dept, of Justice, and Jerome M. Feit, Atty., Dept, of Justice, were on brief, for appellee. Before COFFIN, Chief Judge, Mc-ENTEE and CAMPBELL, Circuit Judges. McENTEE, Circuit Judge. Defendant was convicted by a jury on two counts of unlawfully and willfully embezzling, stealing, abstracting and converting to his own use funds of the International Union of Operating Engineers, Local No. 57, of which he was an employee and minor official, in violation of 29 U.S.C. § 501(c) (1970). On appeal, defendant principally contends that § 501(c) could not have been properly applied to him, and further that, in any case, the evidence presented at trial did not support his conviction. Defendant’s initial claim is substantially without merit. Section 501(c) provides unambiguously that ‘‘Any person who embezzles, steals, or unlawfully and willfully abstracts or converts to his own use . . . any of the moneys, funds, securities, property or other assets of a labor organization of which he is an officer, or by which he is employed [is guilty of a crime].” (Emphasis supplied). At the time of the illicit activities alleged in the indictment, it is undisputed that defendant was a bonded employee of the local union’s business office, being responsible, in part, for the preparation of checks and the acceptance and receipt of monthly union dues. Moreover, during this period, defendant occupied the union office, of Guard, though the evidence revealed that this position was largely a ceremonial one. Consequently, it seems evident that, upon consideration of defendant’s status both as an employee and an officer, § 501(c) would prima, facie apply to proscribe his participation in the unlawful conduct described therein. However, defendant contends that it was the Congressional intent to limit the full applicability of § 501(c) strictly to those particular union positions, described by 29 U.S.C. §§ 402(q), 501(a) (1970), which involve certain fiduciary obligations vis-a-vis the union. Since defendant further contends that his functions within the union did not fall within the ambit of the fiduciary relationships defined in §§ 402(q) and 501(a), he therefore claims that § 501(c) has no applicability to him. Preliminarily we note that even a liberal construction of this court’s decision in Colella v. United States, 360 F.2d 792, 799, cert. denied, 385 U.S. 829, 87 S.Ct. 65, 17 L.Ed.2d 65 (1966), compels rejection of defendant’s broad contention that §§ 402(q) and 501(a) completely circumscribe § 501(c). While recognizing that “insofar as embezzlement is concerned, the existence of a fiduciary relationship is necessary” for conviction, our opinion in Colella emphasized that “[w]e are not dealing with an indictment charging simply embezzlement. Section 501(c) establishes ‘a new Federal crime of embezzlement of any funds of a labor organization.’ [citation omitted] The new crime can be accomplished in one of four ways: embezzling, stealing, unlawfully and willfully abstracting, and unlawfully and willfully converting.” 360 F.2d at 799. And, while suggesting that a § 501(a) or § 402(q) fiduciary relationship may arguably be an “essential element of the embezzlement means of committing the new federal crime, Colella seems to make clear that such a relationship “is not essential to the three other means.” Id. at 800 n.6. See Doyle v. United States, 318 F.2d 419 (8th Cir. 1963). Moreover, since, as we said in Colella, we “cannot imagine facts constituting embezzlement which would not also, absent a fiduciary relationship, make out unlawful and willful abstraction or conversion,” 360 F.2d at 800, the defendant in the instant case would not have been prejudiced by the fact that he conceivably could not have been convicted of traditional embezzlement, on the assumption that his union functions were not covered by §§ 402(q) and 501(a). “As far as the defendant is concerned, he has been placed in jeopardy with respect to all means of committing the offense by the proper manner of substitution in the indictment of the conjunctive ‘and’ for the statutory disjuctive ‘or’, [citations omitted].” Id. Thus, the impact of §§ 402(q) and 501(a) is at best limited to its effect upon the embezzlement provision of § 501(c), but see note 3 supra, and does not preclude a non-fiduciary union employee or officer from being subject to the remaining three aspects of that section. Nonetheless, even if we were to accept, for the sake of argument, defendant’s contention regarding the limiting role of §§ 402(q) and 501(a), we would still be forced to reject his argument. In the first place, defendant is an elected officer of the union, and strictly speaking, no matter how ceremonial, § 501(a) invests in such officers the requisite fiduciary obligations necessary to sustain conviction under § 501(c), see note 2 supra, even were that section to be modified in the manner defendant suggests. Given the broad protective purposes underlying § 501, see, e. g., United States v. Goad, 490 F.2d 1158, 1161-1162 (8th Cir. 1974) cert. denied, - U.S. -, 94 S.Ct. 3068, 41 L.Ed.2d - (1974); Johnson v. Nelson, 325 F.2d 646, 650 (8th Cir. 1963), we think it entirely appropriate to construe the § 501(a) term “officer” in its most literal sense to include all union officers, no matter how minor their responsibilities. Certainly, it would violate the important judicial and social policy of clarity in the law to permit each potential § 501(c) defendant-officer to attempt to establish that his particular official functions were not comprehended within the “true” spirit of § 501(a). Moreover, to place a narrow construction on the term “officer” might, as in this case, necessitate excluding from § 501 coverage, an individual who, while not a high union official, did play, as the record reveals, a significant role in the administration of local union affairs. But beyond defendant’s arguably limited role as an officer pursuant to § 501(a), it is abundantly clear from the record that the defendant was a “key administrative” employee within the meaning of § 402(q) such that, on this account alone, he possessed a sufficient fiduciary obligation with respect to union funds and assets. Along with John White, Sr. and John White, Jr., defendant was an important and influential member of the union’s administrative staff. His responsibility for preparing cheeks, and for assisting in the collection of dues, constituted a significant role in the necessary performance of daily administrative functions. In view of the obvious importance of defendant’s role within Local 57, we will not now accept his plaintive claim that he was merely an insignificant clerical employee. Thus, even under defendant’s narrow interpretation of § 501(c), as requiring complete modification by §§ 402 (q) and 501(a), his arguments provide little solace since both as an officer, pursuant to § 501(a), and as a key administrative employee, pursuant to § 402(q), defendant possessed the requisite fiduciary relationship with respect to his union necessary to permit application of § 501(c) to him. We next turn to defendant’s additional contention that the evidence adduced at trial will not support his conviction. Initially, we must note that the alleged wrongdoing on the part of defendant is somewhat unique to prosecutions under § 501(c). Whereas most criminal actions brought pursuant to that section involve “affirmative” misconduct — generally in the form of either intentional falsification of union expense vouchers, see, e. g., United States v. Dibrizzi, 393 F.2d 642 (2d Cir. 1968); Colella v. United States, supra, improper application of union funds by union management, see, e. g., United States v. Boyle, 157 U.S.App.D.C. 166, 482 F.2d 755, cert. denied, 414 U.S. 1076, 94 S.Ct. 593, 38 L.Ed.2d 483 (1973); United States v. Silverman, 430 F.2d 106 (2d Cir.), modified per curiam on other grounds, 439 F.2d 1198 (2d Cir. 1970), cert. denied, 402 U.S. 953, 91 S.Ct. 1619, 29 L.Ed.2d 123 (1971), or illicit behavior approaching outright theft, see, e. g., United States v. Bryant, 430 F.2d 237 (8th Cir. 1970) — defendant here was essentially convicted of having “passively” received unauthorized salary increases and Christmas bonuses, knowing the same to have been unauthorized, and hence, illegal. However, as the Second Circuit has observed in a somewhat different context, “the reach of § 501(c) is not limited to union officers who engage in stealthy larcenies or devious embezzlements,” United States v. Dibrizzi, supra, 393 F.2d at 645. Considering that § 501(c) was designed essentially to protect general union memberships from the corruption, however novel, of union officials and employees, see United States v. Harmon, 339 F.2d 354, 357-358 (6th Cir. 1964), cert. denied, 380 U.S. 944, 85 S.Ct. 1025, 13 L.Ed.2d 963 (1965), we do not believe that the proscriptions of that section should be read to operate solely against those who violate its terms in an active manner. In our view, the willing acceptance of misappropriated union funds by a recipient who knows that such funds are unauthorized and illegal will constitute a violation of § 501(c). See United States v. Goad, supra; cf. Woxberg v. United States, 329 F.2d 284, 285-293 (9th Cir.), cert. denied, 379 U.S. 823, 85 S.Ct. 45, 13 L.Ed.2d 33 (1964). Consequently, if upon examination of the record, it appears that there was sufficient evidence to permit the jury to conclude beyond a reasonable doubt that the defendant improperly received union funds (in the form of unauthorized raises and bonuses), and if the evidence further permits the valid inference that defendant knew his receipt of such funds was unlawful, we think that his conviction should be sustained. In this regard, it must be kept in mind that the elements of defendant’s guilt may be supported entirely by circumstantial evidence, United States v. Stubin, 446 F.2d 457 (3d Cir. 1971), and that such evidence, including the fair inferences to be drawn therefrom, must be viewed in the light most favorable to the government. United States v. Bryant, supra, 430 F.2d at 240. In its case-in-chief, the government introduced documentary evidence which clearly established that, on or about July 15, 1968, defendant began receiving a $35 per week salary increase, which raised his previously existing pay scale from a weekly gross of $125 to one of $160. Additionally, by comparable documentary and testimonial evidence, the government proved that in December of 1968, 1969 and 1970, the defendant received annual Christmas bonuses in amounts totalling $120, $125 and $200 respectively. The receipt of the salary increase and the bonuses constituted separate counts in the indictment upon which defendant was convicted. The government further introduced in evidence the amended Constitution of the International Union of Operating Engineers, by which Local 57 was governed. That document provided in part: “Any and all diversion of funds from a Local Union to or for the personal benefit of individual members by way of gifts, additional compensation for benefits or services otherwise paid for, retroactive compensation for services not previously authorized and similar situations shall be illegal and void unless prior to the payment thereof such payment is specifically approved by the [Local’s] membership and is approved in writing by the [International] General President.” Subsequent introduction of Local 57’s minute book for the period covered by the indictment revealed that neither defendant’s salary increase nor his Christmas bonuses were ever approved by the local’s membership or by the General President, as was required by the union constitution. Hence, such payments were, as a matter of unquestioned fact, “illegal and void.” Moreover, since, as earlier indicated, the record disclosed that defendant was an officer of Local 57, as well as an influential employee of the union with some twenty years of service outstanding, we think it quite reasonable for the jury to have inferred that defendant was aware of the constitutional requirements for approval of his pay increase and bonuses. However, defendant contends that, notwithstanding these facts, there was' no evidence admitted to show that he actually knew that his pay raise and bonus payments had not been properly authorized, and thus, that he lacked the requisite willfulness or guilty intent necessary to violate § 501(c). We disagree. Although there was no direct evidence of defendant’s knowledge that the payments were unauthorized, we think that this was inferable from the government’s other proof. In the first place, the union’s minute book indicated that defendant attended virtually every meeting of the general membership during the period covered by the indictment, including all meetings immediately preceding his July 15, 1968, raise and his December 1968, 1969 and 1970 bonuses. Since the constitution required that the general membership approve of these payments, and since his attendance at those meetings must have made it plain to him that no such approval was ever given or even considered, it was clearly reasonable for the jury to conclude that defendant did, in fact, know that the payments were improper and illegal. Secondly, the evidence establishes a close working relationship between defendant and the Whites, who effectively ran the union. To the extent that the evidence also suggested that the Whites knew, or must have known, that these and other payments were illegal, it was permissible for the jury to infer that defendant possessed the same knowledge. Thus, in our view, the evidence satisfactorily established that defendant, a union officer and employee, improperly received for his own benefit misappropriated and unauthorized union funds, knowing that his receipt of those funds was unlawful. Such evidence is, we believe, sufficient to sustain his conviction under § 501(c). The remaining contentions raised by defendant have been carefully examined and have been found to be either clearly without merit, or at most, to constitute harmless error. Affirmed. . Pursuant to tlie Constitution of the International Union of Operating Engineers, the essential functions of the Guard consist of “takfing] ; charge of the doors at meetings to see that none but members in good standing and with the quarterly password enter, . . . furnish [ing] the General President [with] full and complete information on any subject within his control ■ or knowledge when requested and . . . perform [ing] such other duties as are customarily incident to his office or which from time to time may be delegated to him by the Local Union.” . Section 501(a) states, inter alia, that “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.” These officials are vested with a statutory fiduciary responsibility to “hold [union] money and property solely for the benefit of the organization and its members and to manage, invest, and expend the same in accordance with its constitution and bylaws.” Section 501(a) is to some extent modified by’ § 402(q) so as to include within its terms “elected officials and key administrative personnel, whether elected or appointed . . ., but . . . not . . . salaried, non-supervisory professional staff, stenographic, and service personnel.” . Though the existence of a “fiduciary relationship” was held to be a fundamental attribute of embezzlement, and though the Colella court noted that Congress had “spelled out [and refined] its own definition” of this relationship in §§ 402(q) ¿and 501(a), it is by no means clear that the nature of the fiduciary obligations necessary to sustain a conviction for embezzlement under § 501(c) is strictly dependent upon §§ 402 (q) and 501(a). The Colella court had no occasion to formally face the issue of whether a union functionary whose responsibilities do not fall precisely within the terms of §§ 402 (q) and 501(a) could nevertheless be found to possess the requisite fiduciary relationship. Since resolution of this question is not directly necessary to our decision, we express no view upon it. But cf. Johnson v. Nelson, 325 F.2d 646 (8th Cir. 1963). . Although defendant has cited numerous cases in which union officials who, having breached their fiduciary obligations, have been convicted under § 501(c), see, e. g. United States v. Ferrara, 451 F.2d 91 (2d Cir. 1971), cert. denied, 405 U.S. 1032, 92 S.Ct. 1291, 31 L.Ed.2d 489 (1972) ; United States v. Stubin, 446 F.2d 457 (3d Cir. 1971) ; United States v. Silverman, 430 F.2d 106 (2d Cir.), modified per curiam on other grounds, 439 F.2d 1198 (2d Cir. 1970), cert. denied, 402 U.S. 953, 91 S.Ct. 1619, 29 L.Ed.2d 123 (1971) ; United States v. Dibrizzi, 393 F.2d 642 (2d Cir. 1968), it is clear from a close reading of these cases that none of them stand for the broad proposition that a breach of fiduciary responsibility is either a necessary or essential element of conviction under § 501(c). “The terms used in [§ 501 (c) ] retain their common law meaning.” Woxburg v. United States, 329 F.2d 284, 290 (9th Cir.), cert. denied, 379 U.S. 823, 85 S.Ct. 45, 13 L.Ed.2d 33 (1964). Though common law embezzlement “carries with it the concept of a breach of fiduciary relationship,” Colella v. United States, supra, 360 F.2d at 799, neither “stealing,” “abstraction,” nor “conversion” do. We see no reason grounded in policy or logic to extend to these terms a requirement of breach of fiduciary responsibility. . John White, Sr. was the Business Manager of Local 57. His son, John White, Jr. was the President of the Local and also served administratively as its Business Agent. Initially, both were indicted along with the defendant for violations of § 501(c). However, prior to trial, John White, Sr. became legally incompetent, and John White, Jr. died of natural causes. . Additionally, defendant assisted John White, Sr. in determining the assignment of union members to the various jobsites and dealt on a regular business basis with both the union’s employers and its accountants. . This pay increase was made retroactive to January 1, 1968. Accordingly, on' or about July 18, 1968, defendant also received a payment of $980 to cover the period from January 1, 1968, through July 15, 1968. . Apparently, the decision to appropriate union funds to increase defendant’s salary and award him a Christmas bonus was made exclusively by John AVhite, Sr., the Business Manager of Local 57, under whom defendant had long been employed. Question: The most frequently cited title of the U.S. Code in the headnotes to this case is 29. What is the second most frequently cited title of this U.S. Code in the headnotes to this case? Answer with a number. Answer:
songer_source	F	What follows is an opinion from a United States Court of Appeals. Your task is to identify the forum that heard this case immediately before the case came to the court of appeals. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. 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 forum heard this case immediately before the case came to the court of appeals? A. Federal district court (single judge) B. 3 judge district court C. State court D. Bankruptcy court, referee in bankruptcy, special master E. Federal magistrate F. Federal administrative agency G. Court of Customs & Patent Appeals H. Court of Claims I. Court of Military Appeals J. Tax Court or Tax Board K. Administrative law judge L. U.S. Supreme Court (remand) M. Special DC court (not the US District Court for DC) N. Earlier appeals court panel O. Other P. Not ascertained Answer:
songer_weightev	D	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?" This includes discussions of whether the litigant met the burden of proof. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". Fred FLOYD, Appellant, v. UNITED STATES of America, Appellee. No. 10247. United States Court of Appeals Fourth Circuit. Argued March 11, 1966. Decided May 4, 1966. C. S. Bowen and Robert A. Clay, Green-ville, S. C., for appellant. Jerome I. Chapman, Atty., Dept, of Justice (Richard M. Roberts, Acting Asst. Atty. Gen., Meyer Rothwacks and George F. Lynch, Attys., Dept, of Justice, and John C. Williams, U. S. Atty., and James D. McCoy, III, Asst. U. S. Atty., on brief), for appellee. Before SOBELOFF and J. SPENCER BELL, Circuit Judges, and J. BRAXTON CRAVEN, Jr., District Judge. SOBELOFF, Circuit Judge: An action was brought against the United States by Fred Floyd to restrain the collection of certain cabaret taxes, to remove the assessment against him therefor, and to release his property from seizure and threatened sale thereunder. Floyd’s complaint recites that the cabaret, the operation and ownership of which gives rise to a tax obligation, is in fact owned solely by his wife, and that he is not in any way financially involved in the enterprise. The District Court granted the Government’s motion to dismiss, relying on section 7421(a) of the Internal Revenue Code of 1954, which reads: “Except as provided in sections 6212(a) and (c) and 6213(a) [which are not here relevant], no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court.” 26 U.S.C.A. § 7421(a). We agree with the District Court that dismissal is compelled under the Supreme Court’s interpretation of section 7421(a) in Enochs v. Williams Packing & Nav. Co., 370 U.S. 1, 82 S.Ct. 1125, 8 L.Ed.2d 292 (1962). There the Court was dealing with a suit by an employer to restrain the collection of social security taxes and unemployment taxes asserted by the Government to be due. The employer claimed that there was no employment relationship to which the taxes could apply. In reversing the lower courts’ grant of injunctive relief, the Supreme Court declared that a suit by an allegedly delinquent taxpayer to enjoin the collection of taxes must be dismissed for want of jurisdiction unless “it is clear that under no circumstances could the Government ultimately prevail.” 370 U.S. at 7, 82 S.Ct. at 1129. In the instant case the District Court concluded, and we concur, that it is not at all clear that the Government will ultimately fail to establish that the tax liability arising from the operation of the cabaret attaches to Mr. as well as Mrs. Floyd. Appellant nevertheless presses the contention that he is a non-taxpayer, and therefore outside the proscription against suits for injunctive relief embodied in section 7421(a). Floyd does not dispute that the taxes assessed are valid taxes and are owed by the owner of the cábaret, but denies that he has any interest in the cabaret upon which tax liability could lawfully be predicated as to him. In response to this contention it is sufficient to say that this is precisely the issue that should be resolved in the ordinary channels of tax litigation. Falik v. United States, 343 F.2d 38 (2d Cir. 1965), (injunctive relief denied where plaintiff sought to contest the Government’s determination that she was a responsible officer of a tax-delinquent corporation). See also Cooper Agency, Inc. v. McLeod, 235 F.Supp. 276 (E.D.S.C.1964), aff’d per curiam, 348 F.2d 919 (4th Cir. 1965); Broadwell v. United States, 234 F.Supp. 17 (E.D.N.C.1964), aff’d per curiam, 345 F.2d 470 (4th Cir. 1965); Quinn v. Hook, 231 F.Supp. 718 (E.D.Pa.1964), aff’d per curiam, 341 F.2d 920 (3d Cir. 1965). This is not a case where a property owner under no tax assessment is seeking to enjoin the Government from seizing his property to satisfy the tax obligation of another. Cf. Raffaele v. Granger, 196 F.2d 620 (3d Cir. 1952); Adler v. Nicholas, 166 F.2d 674 (10th Cir. 1948). See also Shelton v. Gill, 202 F.2d 503, 506 (4th Cir. 1953). Where no tax deficiency has been asserted against one whose property is seized, a suit against the Government for injuncfive relief seems peculiarly appropriate, for the aggrieved party, not being an alleged tax delinquent, would have no opportunity in the ordinary channels of tax litigation to contest the validity of the Government’s assessment. With respect to Mr. Floyd, however, his complaint shows on its face that the Government has made a levy against him for a deficiency, and we cannot say that this is an exaction merely in “the guise of a tax.” Enochs v. Williams Packing & Nav. Co., 370 U.S. 1, 7, 82 S.Ct. 1125 (1962). The Order of the District Court is Affirmed. . 26 U.S.C.A. § 4231. . A complete statement of the Court’s conclusion follows: “The manifest purpose of § 7421(a) is to permit the United States to assess and collect taxes alleged to he due without judicial intervention, and to require that the legal right to the disputed sums he determined in a suit for refund. In this manner the United States is assured of prompt collection of its lawful revenue. Nevertheless, if it is clear that under no circumstances could the Government ultimately prevail, the central purpose of the Act is inapplicable and, * * * the attempted collection may he enjoined if equity jurisdiction otherwise exists. In such a situation the exaction is merely in ‘the guise of a tax.’ * * * “We believe that the question, of whether the Government has a chance of ultimately prevailing is to be determined on the basis of the information available to it at the time of suit. Only if it is then apparent that, under the most liberal view of the law and the facts, the United States cannot establish its claim, may the suit for an injunction be maintained. Otherwise, the District Court is without jurisdiction, and the complaint must be dismissed.” 370 U.S. at 7, 82 S.Ct. at 1129. Question: Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
sc_authoritydecision	A	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. LANCE et al. v. COFFMAN, COLORADO SECRETARY OF STATE No. 06-641. Decided March 5, 2007 Per Curiam. The Elections Clause of the United States Constitution provides that the “Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.” Art. I, §4, cl. 1 (emphasis added). When Colorado legislators were unable to redraw congressional districts after the 2000 census to accommodate an additional Representative, a state court did it for them. See Beauprez v. Avalos, 42 P. 3d 642 (Colo. 2002). The legislature was able to pass a redistricting plan in 2003, which Colorado’s Governor signed into law. See Colo. Rev. Stat. Ann. §2-1-101. Colorado’s attorney general, however, filed an original action in the Colorado Supreme Court to enjoin Colorado’s secretary of state from implementing this new plan, noting that Article V, §44, of the Colorado Constitution limits redistricting to once per census. The Colorado General Assembly intervened in the action to defend its plan. The Colorado Supreme Court granted the injunction, holding that “judicially-created districts are just as binding and permanent as districts created by the General Assembly,” and that the court-drawn plan must remain in effect until the next decennial census. People ex rel. Salazar v. Davidson, 79 P. 3d 1221, 1231 (2003), cert. denied, 541 U. S. 1093 (2004). The court further held that this result did not offend the Elections Clause of the United States Constitution. 79 P. 3d, at 1232. Immediately after Salazar was decided, four Colorado citizens — none of whom had participated in Salazar — filed the instant action in Federal District Court. They argued that Article V, §44, of the Colorado Constitution, as interpreted by the Colorado Supreme Court, violates their rights under the Elections Clause. The District Court initially determined that it lacked jurisdiction to hear the suit in light of the Rooker-Feldman doctrine, but we vacated and remanded for further proceedings. Lance v. Dennis, 546 U. S. 459 (2006) (per curiam). On remand, the District Court held that the citizen-plaintiffs had standing to bring their Elections Clause challenge. Lance v. Dennis, 444 F. Supp. 2d 1149, 1154-1155 (2006). The court went on, however, to hold that the suit was barred by issue preclusion because the plaintiffs “stand in privity with the Secretary of State and the General Assembly,” who were on the losing side in the Salazar litigation. 444 F. Supp. 2d, at 1161. The concurring judge concluded that appellants lacked standing to sue in the first place. Id., at 1162 (Porfilio, J., concurring in result). Plaintiffs appeal once again. Federal courts must determine that they have jurisdiction before proceeding to the merits. Steel Co. v. Citizens for Better Environment, 523 U. S. 83, 94-95 (1998). Article III of the Constitution limits the jurisdiction of federal courts to “Cases” and “Controversies.” One component of the case-or-controversy requirement is standing, which requires a plaintiff to demonstrate the now-familiar elements of injury in fact, causation, and redressability. See Lujan v. Defenders of Wildlife, 504 U. S. 555, 560-561 (1992). “We have consistently held that a plaintiff raising only a generally available grievance about government — claiming only harm to his and every citizen’s interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large — does not state an Article III case or controversy.” Id., at 573-574. See also Daimler Chrysler Corp. v. Cuno, 547 U. S. 332, 344 (2006) (refusing to create an exception to the general prohibition on taxpayer standing for challenges to state tax or spending decisions, and observing that taxpayer standing has been rejected “because the alleged injury is not ‘concrete and particularized,’ but instead a grievance the taxpayer ‘suffers in some indefinite way in common with people generally’ ” (citation omitted)). Our refusal to serve as a forum for generalized grievances has a lengthy pedigree. In Fairchild v. Hughes, 258 U. S. 126 (1922), for example, a citizen sued the Secretary of State and the Attorney General to challenge the procedures by which the Nineteenth Amendment was ratified. We dismissed the suit because it was “not a case within the meaning of.... Article III.” Id., at 129. The plaintiff sought to assert “only the right, possessed by every citizen, to require that the Government be administered according to law and that the public moneys be not wasted.” Ibid. “Obviously,” we held, “this general right does not entitle a private citizen to institute [a suit] in the federal courts.” Id., at 129-130. Similarly, in Ex parte Lévitt, 302 U. S. 633 (1937) (per curiam), we dismissed a citizen suit claiming that Justice Black’s appointment to this Court contravened the Constitution’s Ineligibility Clause, Art. I, §6, cl. 2. We found that the petitioner had no interest in the suit “other than that of a citizen and a member of the bar of this Court.” 302 U. S., at 634. That was not enough. To have standing, we observed, a plaintiff must have more than “a general interest common to all members of the public.” Ibid. See also Frothingham v. Mellon, decided with Massachusetts v. Mellon, 262 U. S. 447, 488 (1923) (taxpayer standing cannot be predicated upon an injury the plaintiff “suffers in some indefinite way in common with people generally”). Cf. Tyler v. Judges of Court of Registration, 179 U. S. 405, 406 (1900) (“[E]ven in a proceeding which he prosecutes for the benefit of the public ... [the plaintiff] must generally aver an injury peculiar to himself, as distinguished from the great body of his fellow citizens”). A pair of more recent cases further illustrates the point. In United States v. Richardson, 418 U. S. 166 (1974), a federal taxpayer challenged the Government’s failure to disclose certain CIA expenditures as a violation of the Constitution’s Accounts Clause, which requires that “a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.” Art. I, §9, cl. 7. Relying on Lévitt, this Court dismissed the claim as a “generalized grievance” that is “plainly undifferentiated and ‘common to all members of the public.’” Richardson, 418 U. S., at 176-177. See also id., at 191 (Powell, J., concurring) (“The power recognized in Marbury v. Madison, 1 Cranch 137 (1803), is a potent one. Its prudent use seems to me incompatible with unlimited notions of taxpayer and citizen standing”). The same day, in Schlesinger v. Reservists Comm. to Stop the War, 418 U. S. 208 (1974), we addressed standing to bring a challenge under the Constitution’s Incompatibility Clause, which provides that “no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.” Art. I, §6, cl. 2. Citizen-taxpayers brought a lawsuit contending that Members of Congress who were also members of the military Reserves violated the Incompatibility Clause. This Court dismissed for lack of standing. It “reaffirmed] Lévitt in holding that standing to sue may not be predicated upon an interest of the kind alleged here which is held in common by all members of the public, because of the necessarily abstract nature of the injury all citizens share.” 418 U. S., at 220. Refusing to entertain generalized grievances ensures that “there is a real need to exercise the power of judicial review” in a particular case, and it helps guarantee that courts fashion remedies “no broader than required by the precise facts to which the court’s ruling would be applied.” Id., at 221-222. In short, it ensures that courts exercise power that is judicial in nature. The instant case parallels Fairchild, Lévitt, and their progeny. The plaintiffs here are four Colorado voters. Three days after the Colorado Supreme Court issued its decision in Salazar, they filed a complaint alleging that “Article V, § 44 of the Colorado Constitution, as interpreted in Salazar, violated [the Elections Clause] of the U. S. Constitution by depriving the state legislature of its responsibility to draw congressional districts.” Lance v. Davidson, 379 F. Supp. 2d 1117, 1122 (2005). In light of the discussion above, the problem with this allegation should be obvious: The only injury plaintiffs allege is that the law — specifically the Elections Clause — has not been followed. This injury is precisely the kind of undifferentiated, generalized grievance about the conduct of government that we have refused to countenance in the past. It is quite different from the sorts of injuries alleged by plaintiffs in voting rights cases where we have found standing. See, e. g., Baker v. Carr, 369 U. S. 186, 207-208 (1962). Because plaintiffs assert no particularized stake in the litigation, we hold that they lack standing to bring their Elections Clause claim. Our two decisions construing the term “Legislature” in the Elections Clause do not contradict this holding. Each of these cases was filed by a relator on behalf of the State rather than private citizens acting on their own behalf, as is the case here. See State ex rel. Smiley v. Holm, 184 Minn. 647,238 N. W. 792 (1931) (per curiam), rev’d sub nom. Smiley v. Holm, 285 U. S. 355 (1932); Ohio ex rel. Davis v. Hildebrant, 241 U. S. 565 (1916). In neither case did we address whether a private citizen had alleged a “concrete and particularized” injury sufficient to satisfy the requirements of Article III. The judgment of the United States District Court for the District of Colorado is therefore vacated in part, and the case is remanded with instructions to dismiss the Elections Clause claim for lack of standing. We affirm the District Court's dismissal of the Petition Clause claim. It is so ordered. Qur prior decision in this case did not violate this principle because Rooker-Feldman concerns a district court’s subject-matter jurisdiction, Exxon Mobil Corp. v. Saudi Basie Industries Corp., 544 U. S. 280, 291 (2005), and “there is no unyielding jurisdictional hierarchy,” Ruhrgas AG v. Marathon Oil Co., 526 U. S. 574, 578 (1999). 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_typeiss	C	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. Jerome C. POWERS, Plaintiff-Appellee, v. J. B. MICHAEL & CO., Inc., Defendant-Appellant. No. 15294. United States Court of Appeals Sixth Circuit. April 7, 1964. Certiorari Denied June 15, 1964. See 84 S.Ct. 1886. William F. Kirsch, Jr., Memphis, Tenn. (David G. Williams, Shepherd, Heiskell, Williams, Wall & Kirsch, Memphis, Tenn., on the brief), for appellant. Thomas R. Prewitt, Memphis, Tenn. (Armstrong, McCadden, Allen, Braden & Goodman, Memphis, Tenn., of counsel), for appellee. Before PHILLIPS, Circuit Judge, MAGRUDER, Senior Circuit Judge for the First Circuit, and WEINMAN, District Judge. Sitting by designation pursuant to Section 294(d), Title 28 U.S.Code. MAGRUDER, Circuit Judge. Father Jerome C. Powers, driving his Buick car, had a collision with a truck on a Tennessee highway leading to Memphis. He was west bound and the truck was east bound. They met head-on. It was about dusk and also there was a drizzling rain at the moment of the collision. Both the plaintiff and the truck driver were unconscious after the impact and did not recall how the accident happened, and so there was no direct evidence of the cause of it. Father Powers testified that he was going at a reasonable speed and that his car was always on the right-hand side of the highway. After the accident the plaintiff’s car was somewhat over the line on the left-hand side of the road; but that was to be expected in the circumstances. Plaintiff sued, not the State of Tennessee but rather a contractor with which the State had a contract to widen a section of Highway 64, on which Father Powers was traveling. Since the accident took place on a portion of Highway 64 not included in the contract, the defendant contended that it had no responsibility to put up signs or other warnings of a dangerous condition of the highway. Another defense was that, if the defendant was guilty of any common law negligence, the plaintiff was himself guilty of contributory negligence. The issue of contributory negligence was left to the jury under instructions as to which the defendant took no exception, and therefore under Rule 51, Federal Rules of Civil Procedure, there could not be any objection on this score. In fact the defendant does not raise contributory negligence as an issue on appeal. Two of the points raised on appeal, which we must discuss hereinafter, refer to the trial judge’s alleged error in admitting evidence. The third has to do with the trial judge’s conduct at the trial, which the defendant says overstepped the line which even a federal judge may pursue. The fourth relates to whether the contractor had any duty to post a warning sign, because the accident occurred at a place on the highway excluded from the contract which the defendant had with the State of Tennessee. It may be noticed that this is not an action for breach of contract brought by the State of Tennessee against the defendant, but rather an action of tort brought by the plaintiff against the defendant for common law negligence proximately causing damages to the plaintiff. It seems that at a bridge on Highway 64 there was a narrowing of the highway from 24 feet to 18 feet. There was evidence by the witness Wilkinson for the defendant that he had warned a representative of the highway department of the State of Tennessee of the dangerous condition of this part of the road because he had observed that several automobiles had gone off the edge of the highway at that location. Mr. Wilkinson, an employee of the defendant, testified that from the presence of ruts in the soft part of the approaches to the bridge he was under the impression that there was “some danger of a car running down off of that and losing control,” and that he more than once told Mr. Graham, a division maintenance engineer of the Tennessee Highway Department, of the danger. Mr. Graham examined the locality and did not find that it was necessary to put up any more signs. If they had been installed, it would have had to be upon the part occupied by the defendant, in order to give adequate warning. It appears that the defendant and the highway department were in joint control of the premises and that the highway department did investigate whether any signs should be erected where the work was going on. The contract did not specify that the defendant should have warning signs on the portion of the highway which was included in its contract. However, as a practical construction of the contract, each party customarily warned the other of a dangerous condition which should be made known. There was evidence that Father Powers ran off the road at a spot within the excluded portion of Highway 64 near a bridge where the highway became narrower. The only question which was raised at that time was whether the defendant had any duty to do anything about the danger to automobilists because of the narrowing of the highway. The trial judge properly denied an instruction requested by the defendant that it was under no duty to do anything about a dangerous condition on an excluded portion of the highway. Upon the contrary, he charged the jury to the effect that “[0]ne who creates or maintains on a highway, or on adjacent shoulders to a highway, a condition of such character that danger of injury therefrom to persons lawfully using the highway may or should, in the exercise of ordinary care, be foreseen or apprehended is under the duty of exercising reasonable care, by means of signs or other means to prevent such injury; and the fact that a State Highway Department is bound by contract to maintain safeguards to prevent accidents and to take other precautions for the protection of the motoring public cannot relieve the person who creates or maintains such danger from liability. “In this case, gentlemen of the jury, if you find that defendant created a hazard which was the proximate cause of the accident in question and resulting injuries, the Court instructs you that the defendant was not entitled to assume that the State Highway Department would comply with any con-traetual obligations that it had with respect to the condition in question.” With reference to the alleged error by the trial judge in admitting evidence, the plaintiff introduced evidence that accidents had taken place prior to the one to him at approaches to other bridges on Highway 64. The trial judge was careful to tell the jury that this evidence was not admissible on the issue of the original negligence of the defendant, but solely for the limited purpose of establishing that the defendant had notice of the danger at that point. Furthermore, the applicable Tennessee decisions do not require exact proof of identity of conditions in order to render the evidence of prior accidents admissible on the question of notice. One should not be hypercritical upon this point. It is enough that the conditions were substantially the same when the other ears skidded off the highway. John Gerber Co. v. Smith, 150 Tenn. 255, 263 S.W. 974 (1924). The sufficiency of the showing of similarity of conditions is primarily a matter for the discretion of the trial judge. We perceive no abuse of discretion in this particular. The other alleged error in the admission of evidence by the trial judge was that the defendant put up on the premises subsequent to the accident some danger signs and smudge pots. The trial judge cautioned the jury at the time this evidence was introduced that it was not admissible as proof of original negligence by the defendant, if there was such, but was admissible only as it tended to prove that this part of the highway was under the control of the defendant. This was repeated in the general charge. It is true that the possible prejudicial effect of such evidence remains in the ease, but certainly it is a matter of discretion for the trial judge to admit this evidence for this limited purpose, and again we perceive no abuse of discretion, See Trigg v. H. K. Ferguson Co., 30 Tenn.App. 672, 209 S.W.2d 525 (1947). The appellant alleges misconduct by the trial judge which denied it the right to a trial before an impartial tribunal. See “The Trials and Tribulations of an Intermediate Appellate Court,” 44 Cornell L.Q. 3, 4 (1958). The evidence of examination by the trial judge concerns the testimony of Louie Graham, an employee of the Highway Department called by the defendant. There was the “loaded” question asked by the defendant, “Should the trial judge assume the role of a partisan advocate in his examination of the defendant's witness in such manner as to make the testimony of the witness appear to be contradictory and in such manner as to show partisanship on the part of the trial judge?” It was said by the defendant that the district court answered “Yes” to this question. Of course, the district court denied appearing as a “partisan advocate,” which obviously he should not do. The trial judge allowed a complete direct examination by counsel for the defendant, a cross-examination by counsel for the plaintiff, a redirect examination, a recross-examination, and a redirect examination, before he undertook, with evident reluctance, his questioning of the witness. The trial judge told the jury that they were the sole judges of the facts and that his questioning of the witness was not intended to show any opinion by him as to the merits of the case. It is discretionary with a federal judge how far he should question a witness for the purpose of eliciting the truth from him. We perceive no abuse of discretion in this respect. Indeed, in his charge to the jury the trial judge was very fair to the defendant and failed to disclose any hostility to it. A judgment will be entered affirming the judgment of the District Court. 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_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. Ernest WILLIAMS, Appellant, v. ST. LOUIS COUNTY, K. Tihen, J. Ruddy, City of Berkeley, R.A. Barry, Berkeley Police Dept., R.E. Woerther, A. Zeis, A. Hunt, J.D. Wright, Wicks M. Poeschell, and C.J. Hoffmeister, Appellees. No. 86-1903. United States Court of Appeals, Eighth Circuit. Submitted Nov. 19, 1986. Decided March 4, 1987. Briefs of appellant and appellee were not filed. Before HEANEY, ARNOLD, and BOWMAN, Circuit Judges. ARNOLD, Circuit Judge. Ernest Williams appeals from the District Court’s denial of his motion to vacate a January 7, 1986 order dismissing his 42 U.S.C. § 1983 suit. Williams’s complaint alleged that the defendants had deprived him of certain property without due process. The District Court dismissed the complaint on the ground that Missouri law provided Williams adequate postdeprivation remedies for his loss, citing Parratt v. Taylor, 451 U.S. 527, 539-44, 101 S.Ct. 1908, 1914-17, 68 L.Ed.2d 420 (1980), and Allen v. City of Kinloch, 763 F.2d 335 (8th Cir.), cert. denied, — U.S. —, 106 S.Ct. 313, 88 L.Ed.2d 289 (1985). Williams has moved this Court for appointment of counsel, and certain of the defendants have moved that his appeal be dismissed for lack of jurisdiction. Having received briefs from certain defendants, we proceed to address the merits of Williams’s appeal; because we conclude that Williams’s efforts to invoke state remedies after the dismissal of his § 1983 suit demonstrate that he in fact has no adequate postdeprivation remedy at state law, we reverse the decision of the District Court. I. Williams is a Missouri state prisoner serving a life sentence for homicide. The property at issue here was taken from him by officers of the Berkeley, Missouri, Police Department following his arrest for the homicide on January 8,1981. The property consists of clothing, a wallet, keys, currency, ar,.d, most importantly, a gold ring with four diamonds that Williams values at $4,500. ' On September 3,1985, Williams filed this suit in the District Court. Williams’s complaint alleges that while his property was originally seized on the pretext that it was to be used as evidence, it was not used as evidence, and that, in fact, the defendants took the property from him with the intention of permanently depriving him of it. Williams also' alleges that on March 26, 1981, defendant Ruddy, a St. Louis County Circuit Judge, ordered all Williams’s assets seized to be used to pay attorney’s fees for Williams’s defense counsel; Williams contends that there was no authority for Ruddy’s order under Missouri law, that it was issued without adequate procedural safeguards, and that the various defendants knew the order was void on its face. Williams’s complaint did not specify whether the property at issue was ever seized pursuant to Judge Ruddy’s order, or simply remained out of Williams’s hands due to its original seizure upon his arrest, and did not state whether the defendants still have the property or have disposed of some or all of it; presumably, Williams was in the dark on these points. In any case, Williams alleged that the defendants' actions deprived him of property without due process, and sued for return of his property and damages under 42 U.S.C. § 1983. The defendants did not file answers to Williams’s complaints, and instead filed motions for its dismissal on several grounds. In its January 7, 1986 order, the District Court agreed with the defendants that Williams had alleged only a random, unauthorized, albeit intentional, deprivation of his property, and that, under Parratt v. Taylor, 451 U.S. 527, 539-44, 101 S.Ct. 1908, 1914-17, 68 L.Ed.2d 420 (1980), and Hudson v. Palmer, 468 U.S. 517, 534-35, 104 S.Ct. 3194, 3204-05, 82 L.Ed.2d 393 (1984), this did not violate his due process rights if the state provides an adequate postdeprivation remedy. The Court continued, citing Allen v. City of Kinloch, 763 F.2d at 337, that Williams had an adequate postdeprivation remedy in the form of a Missouri common-law replevin action or an action under R.S.Mo. § 542.301(1). On this basis, the District Court dismissed Williams’s complaint. Williams did not appeal the District Court’s dismissal. Instead, he promptly attempted, unsuccessfully, to file an in for-ma pauperis action for the return of his property in the Circuit Court of St. Louis County. Williams alleges, however, that on two occasions the Clerk of the Circuit Court returned his pleadings to him, unfiled, because he failed to comply with a local rule concerning in forma pauperis actions. When Williams attempted to file his pleadings a third time, this time having obtained a copy of and complied with the local rule, the Clerk again returned the pleadings unfiled, this time because the Court, without giving a reason, denied him leave to proceed in forma pauperis. Williams was directed to pay a filing fee of $177.00 if he wished to have his pleadings filed. Williams then petitioned the Missouri Supreme Court for a writ of mandamus to compel the Circuit Court to grant him in forma pauperis status, but that Court denied his petition, also without giving a reason. Williams then returned to the District Court with a motion under Fed.R.Civ.P. 60(b) to vacate the January 7, 1986 dismissal and reinstate his civil-rights complaint. The District Court denied this motion in a one-sentence order dated June 17, 1986, and Williams filed a timely notice of appeal from this order. On October 22, 1986, this Court directed the defendants to file briefs addressing several factual and legal questions concerning the authority for Judge Ruddy’s March 26,1981 orders in the homicide prosecution, the disposition of Williams’s property, the reasons why the Circuit Court for St. Louis County rejected Williams’s state-law action, and the applicable Missouri statute of limitations. In response, defendant Barry, an Assistant Prosecuting Attorney for St. Louis County, and defendant Tihen, an investigator for the St. Louis County prosecutor, acknowledged that the St. Louis County prosecutor’s office acquired Williams’s property for purposes of its prosecution of Williams for homicide. Barry and Tihen further revealed that Williams’s property has not been disposed of, and is currently stored in the St. Louis County prosecutor’s evidence locker. II. We first address the motion of several of the defendants to dismiss this appeal for lack of jurisdiction. The defendants argue that Williams’s appeal is untimely under Fed.R.App.P. 4(a) because he did not notice the appeal within 30 days of the District Court’s January 7, 1986, dismissal of his complaint. This argument is without merit; Williams has appealed the June 17, 1986 denial of his motion to vacate, not the original dismissal of his complaint, and he noticed his appeal of this order in timely fashion. See Fed.R.App.P. 4(a) (notice of appeal must be filed “within 30 days after the date of entry of the judgment or order appealed from.” (emphasis added)). III. We therefore turn to the merits of Williams’s Rule 60(b) motion. Williams contends that the Missouri courts’ refusal to grant him in forma pauperis status demonstrates that he has no adequate post-deprivation remedy at state law. He maintains that this development requires vacation of the District Court’s dismissal, which was wholly predicated upon the availability of such a remedy. We agree. The definition of what constitutes an adequate postdeprivation remedy under Parratt and its progeny has been the subject of some discussion and disagreement among courts and commentators; for the most part the debate has focused upon whether state immunity laws that would block recovery render otherwise-available state remedies inadequate. See Smolla, The Displacement of Federal Due Process Claims by State Tort Remedies: Parratt v. Taylor and Logan v. Zimmerman Brush Company, 1982 U.Ill.L.Rev. 831, 871-86; Note, Parratt v. Taylor Revisited: Defining the Adequate Remedy Requirement, 65 B.U.L.Rev. 607, 623-44 (1985). Compare, e.g., Groves v. Cox, 559 F.Supp. 772 (E.D.Va.1983) (sovereign-immunity bar to relief does not render remedy inadequate), with Lambert v. McFarland, 612 F.Supp. 1252, 1267-68 (N.D.Ga.1984) (governmental function immunity renders remedy inadequate). This issue was raised before the Supreme Court in Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986), and Davidson v. Cannon, 474 U.S. 344, 106 S.Ct. 668, 88 L.Ed.2d 677 (1986), but the Court found it unnecessary to resolve the question. Justice Blackmun, dissenting in Davidson, would have held that a New Jersey immunity statute rendered a state-law tort claim an inadequate remedy, 106 S.Ct. at 676-77 (Blackmun, J., joined by Marshall, J., dissenting); Justice Stevens, concurring in Daniels and Davidson, took the position that such immunities do not render a remedy inadequate under Parratt. 106 S.Ct. at 680-81. Fortunately, the present case can be resolved without entering the lists in this debate. For here, even the standard for adequate postdeprivation • remedies espoused by courts with the most expansive view of what constitutes an adequate remedy indicates that Williams has no adequate state remedy. Courts that have approved remedies that were subject to sovereign or official immunity have taken the view that a postdeprivation remedy is adequate if it simply affords “the right to present a claim and be heard,” Groves v. Cox, supra, 559 F.Supp. at 777, and that “Parratt requires [no] more than the provision of a hearing ... before a body with authority to grant a remedy.” Id. at 775-76. See Note, Parratt v. Taylor Revisited, supra, 65 B.U.L. Rev. at 623-27. In our view, Missouri, by virtue of the rebuff of Williams’s efforts to proceed in forma pauperis, has not permitted him to present his claim and be heard. We can discern no basis for the state courts’ denial of in forma pauperis status that is sufficient to meet the requirements of Parratt; indeed, the denial of Williams’s petition for leave to proceed in forma pauperis is inexplicable. First, both Missouri statutes and rules of court provide authority for courts to waive filing fees and permit litigants to proceed in forma pauperis. See R.S.Mo. § 514.040; Mo.R.Civ.P. 77.03. See generally State ex rel. Coats v. Lewis, 689 S.W.2d. 800, 802 (Mo.App.1985). Further, there is nothing to indicate that Williams has the money to proceed in any fashion other than in forma pauperis. The District Court allowed Williams to proceed in forma pauperis upon a showing that he was unemployed, without significant assets (other than those he seeks to recover here), and without income, except for an occasional $20 his family sends him in prison. The District Court record contains the affidavit of indigence Williams says he attempted to file in the Circuit Court of St. Louis County. It also avers that Williams is incarcerated, unemployed, without income, and without significant assets; in Coats, the Missouri Court of Appeals found an almost identical affidavit from a state prisoner sufficient to establish the prisoner’s in forma pauperis status. 689 S.W.2d at 807. Further, there is nothing to indicate that Williams’s state-court pleadings were meritless on their face. To refuse to waive filing fees and grant in forma pauperis status in these circumstances raises concerns of a constitutional magnitude even outside the context of an assessment of the adequacy of state remedies under Parratt. See Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971); United States v. Kras, 409 U.S. 434, 93 S.Ct. 631, 34 L.Ed.2d 626 (1973). We need not address those concerns here, however; instead, we hold only that where an indigent plaintiff presents a non-frivolous state-law claim, the denial of in forma pauperis status or similar relief for no apparent reason renders an otherwise-adequate postdeprivation remedy inadequate under Parratt. We further hold that the Missouri courts’ disposition of Williams’s efforts to pursue state remedies requires that the District Court’s dismissal of his § 1983 complaint be vacated under Rule 60(b)(6). See Klapprott v. United States, 335 U.S. 601, 614-15, 69 S.Ct. 384, 93 L.Ed. 266 (1949) (Rule 60(b)(6) “vests power in courts adequate to enable them to vacate judgments whenever such action is appropriate to accomplish justice.”). See generally C. Wright & A. Miller, Federal Practice and Procedure, § 2864 (1973 and 1986 Supp.). The District Court’s original decision that adequate state-law remedies were available to Williams was entirely justified when made; nonetheless, subsequent developments that the District Court could not have anticipated have shown that those remedies are not, in fact, open to Williams. Williams has been diligent throughout in pursuing his claims, and we can see no injustice that would come to the defendants from the reinstatement of his suit. In these circumstances, we think the only equitable solution is to vacate the dismissal of Williams’s action and permit him to have his claims heard on their merits. IV. For these reasons, we reverse the decision of the District Court denying Williams’s motion to vacate, and order that his suit be reinstated, subject, of course, to any applicable defenses, e.g., absolute or qualified immunity, that defendants may assert. . The defendants consist of two groups, those connected with St. Louis County and those connected with the City of Berkeley. The former group comprises the county itself, Assistant Prosecuting Attorney Richard Barry, and investigator Kenneth Tihen. The latter group comprises the City of Berkeley, the Berkeley Police Department, and several individual Berkeley pólice officers. St. Louis County never entered an appearance in the District Court nor filed an answer. Defendants Barry and Tihen have appeared together represented by the same attorney. A single attorney represents all of the individual Berkeley defendants as well as the City of Berkeley. . Williams, who is black, also alleged, albeit in somewhat conclusory fashion, that the defendants had taken his property and kept it from him because of his race, in violation of the Equal Protection Clause of the Fourteenth Amendment, and cited a number of other civil rights statutes as bases for relief, including 42 U.S.C. §§ 1981, 1982, 1985, and 1988. . The District Court dismissed not only Williams’s procedural due-process claim, but his equal-protection claim as well. See supra, n. 2. This was error. Parratt governs only procedural due-process claims; the availability of an adequate postdeprivation remedy is germane to the question whether due process has been afforded, but has no bearing on claims that a plaintiffs Equal Protection, First Amendment, or other substantive rights have been violated. On remand, the equal-protection claim should be reinstated. . The District Court record contains this third set of state circuit court pleadings, including Williams’s request to proceed in forma pauperis and his affidavit of indigence. . Defendants suggest that Williams’s state-court action may have been barred by limitations. Certainly the existence of a good statute-of-limitations defense would not make a state-court remedy inadequate for Parratt purposes. But here the state courts have not said that limitations is a bar, and it seems clearly not to be. The applicable statute of limitations is three years, R.S.Mo. § 516.130, but the cause of action probably did not accrue until Williams's criminal conviction became final, on October 21, 1983. Only then did it become clear that Williams’s property would not be needed as evidence. . In Coats, the Court held that when a plaintiff files pleadings accompanied by a request to proceed in forma pauperis, § 514.040 requires the circuit court to permit the filing subject to summary dismissal if the court is not satisfied that the plaintiff qualifies as an indigent. 689 S.W.2d at 806, Coats further held that a circuit court has no discretion to determine a prospective plaintiffs indigence until the pleadings are filed. Id. at 807. Here, however, the circuit court denied Williams in forma pauperis status in summary fashion, without ever filing his pleadings, and the Missouri-Supreme Court, as evidenced by its denial of a writ of mandamus, refused to interfere with this disposition. 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_circuit	E	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. FLEMING, Adm’r of Wage and Hour Division, U. S. Dept. of Labor, v. JACKSONVILLE PAPER CO. et al. JACKSONVILLE PAPER CO. et al. v. FLEMING, Adm’r of Wage and Hour Division, U. S. Dept. of Labor. No. 10118. Circuit Court of Appeals, Fifth Circuit. May 25, 1942. Irving J. Levy and Mortimer B. Wolf, Asst. Sols., U. S. Dept, of Labor, and Abner Brodie, Principal Atty., U. ■ S. Dept, of Labor, all of Washington, D. C., Chas. H. Spitz, Atty., U. S. Dept, of Labor, of Jacksonville, Fla., and Geo. A. Downing, Regional Atty., U. S. Dept, of Labor, of Atlanta, Ga., for appellant. Louis Kurz and Reuben Ragland, both of Jacksonville, Fla., for Jacksonville Paper Co. et al. Before SIBLEY, HOLMES, and Mc-CORD, Circuit Judges. SIBLEY, Circuit Judge. The Jacksonville Paper Company is a very large wholesale distributor of paper and paper products whose main office and warehouse are in Jacksonville, Florida, but which maintains branch warehouses in twelve other cities in Florida and in two other States. Some of the products it sells are manufactured in Florida by a partnership composed of certain of its officers and stockholders and known as Southern Industries Company. But most of them it purchases in States other than Florida for shipment by boat, rail, or truck across State lines to the various warehouses. The employees of Jacksonville Paper Company order these goods, keep the books concerning them, and make payment for them, and also haul them in from the wharves or freight depots, and unload the freight cars and trucks which bring them to the several warehouses. After sale to the customers the goods are delivered by Jacksonville Paper Company’s trucks. Frequently goods have been resold before they are ordered, and are intended for and presently delivered to these very customers. Quite often they are specially manufactured for such customers, and bear their names. Often, too, they are trucked to customers direct from the wharf or freight car without being deposited in the warehouses. But stocks of merchandise are regularly maintained in the warehouses and the major part of the goods handled are deposited there for a greater or less time until resold or ordered out. At some of the warehouses the sales out are all within the State. At others sales are made across State lines. Practically the entire production of Southern Industries Company is taken by Jacksonville Paper Company, and a large part is thus shipped regularly interstate to the warehouses outside Florida. Warehouses and factory were all inspected by the Wage and Hour Administrator in December, 1939, and January, 1940, and he concluded all had employees engaged in commerce within Sections 6 and 7 of the Fair Labor Standards Act, 29 U. S.C.A. §§ 206, 207, with which there was not compliance. Southern Industries Company and five of the warehouses, which were selling interstate, were conceded to have employees protected under the Act, but it is claimed they have observed it since April 27, 1940. On July 8, 1940, however, the Administrator filed suit to restrain violations against Jacksonville Paper Company and Southern Industries Company. The court granted an injunction against the latter, and against the former as to the warehouses which sold interstate, but refused it as to the other warehouses, and gave judgment for costs equally divided. Both sides appeal. It will be helpful first to notice some general principles. Sections 6 and 7 of the Act deal with an “employee who is engaged in commerce or in the production of goods for commerce.” It is the employment of the particular employee and not the business of the employer, which is to be regarded. Yet the two are closely related, because the employee’s work cannot be in commerce unless the employer’s business is to that extent in commerce. On the other hand, the employer may be largely engaged in commerce, but the particular employee, engaged in some other work, may not be. The percentage of the employer’s business intrastate as compared with that interstate proves little. The question must be whether the work of the particular employee for the time in question is in commerce or in the production of goods for commerce. His whole time and work need not be thus in commerce, because the Act does not make any distinction of that sort. If a substantial part of his work is in commerce or in producing goods for commerce, he must be dealt with according to the Act. And. “commerce” must not be limited to “transportation”. Section 3, 29 U.S.C.A. § 203, which is the dictionary of the Act, declares that “Commerce means trade, commerce, transportation, transmission, or communication” interstate. Transportation is only a part of it. Trade is another part, and according to the old maxim, it takes two to make a trade. Importer as well exporter, buyer as well as seller, is a participant; and ordering and paying for goods are included. If across S’tate lines all those engaged in such work are in commerce. The Act, Sect. 13(a) (2), 29 U.S.C.A. § 213(a) (2), excepts employees in a retail or service establishment the greater part of whose selling is in intrastate commerce, so that all employees of these are under or not under the Act. A wholesaler like Jacksonville Paper Company is not included in this exception, and must pay its employees who -are employed in any phase of commerce according to the Act, although all its sales may be made intrastate. There can be no hard and fast line drawn between the employees at one of these warehouses and those at another. The employees who work exclusively in intrastate business at any of them are not under the Act. Those who work either at selling or delivering across State lines, or at buying and receiving across State lines, are employed in commerce, whether they write the letters, keep the books, or load and unload or drive the trucks. As we understand the record, some of this is done at every warehouse. The unloading at destination of an interstate shipment is work in interstate transportation, whether done by the carrier or another. Baltimore & O. S. W. R. R. v. Burtch, 263 U.S. 540, 44 S.Ct. 165, 68 L.Ed. 433; Puget Sound Stevedoring Co. v. Tax Commission, 302 U.S. 90, 58 S.Ct. 72, 82 L.Ed. 68. And the purchase of goods to be transported across State lines is interstate commerce as truly as the transportation itself. Currin v. Wallace, 306 U.S. 1, and cases cited on page 10, 59 S.Ct. 379, 83 L.Ed. 441. Without reviewing the multitude of decided cases as to when interstate transportation ends, we are justified in holding that after imported goods are delivered to and received by the importer, and become part of his property held within the State subject to his disposition, whether in the original containers or not, the subsequent sale and delivery of them within the State is intrastate commerce. The typical case is a stock of goods in a warehouse awaiting sales. It does not matter that the goods were imported with a view to selling them afterwards to particular customers, or that according to past experience they would likely be sold to them, or would' surely be sold to someone very soon. If they come to rest in the hands of the importer, they have ceased to be in interstate commerce because of their importation, and his employees thereafter engaging solely in selling them within the State are not employed in interstate commerce. There are, however, border line distinctions. Where Jacksonville Paper Company takes an order from a customer for goods and purchases them in another State to fill that order, and they are shipped, interstate with the definite intention that those goods be carried at once to that customer, and they are so carried, the whole movement is interstate, and the fact that title may have passed during transit, or that vehicles may have been changed, will not prevent the entire work of delivery to their final destination being an employment in commerce. Where, however, the purpose to deliver particular goods to fill a particular precedent order arises only after the goods come to rest at their originally intended destination, the new intrastate transportation afterwards underaken will not be a part of the original interstate movement, and employees aiding only the intrastate movement are not thereby employed in commerce under the Act. We therefore do not agree with the District Court that a line can be drawn between all the employees at one warehouse and all those at another. Nor do we agree with the Administrator that all employees at all the warehouses are necessarily under the Act because the goods they handle were imported for sale. The employment of each employee must be looked to, where-ever he may work, to see whether a substantial part of his work during the wage period is in commerce, or not. We think it likely that it will appear that some employees at every warehouse are employed in commerce, and the Administrator in that event will be entitled to declaratory or other relief covering such employees at all the warehouses. Southern Industries Company as to its employees producing goods for commerce and Jacksonville Paper Company as to those warehouses where employees are conceded to be employed in 4 commerce, say that relief by injunction ought not to be granted because violations of the Act had ceased at latest by April 27, 1940, about six weeks before the suit was filed, and because an injunction will not issue to prevent that which is not threatened or has ceased; citing Industrial Ass’n v. United States, 268 U.S. 64, 84, 45 S.Ct. 403, 69 L.Ed. 849; United States v. United States Steel Corp., 251 U.S. 417, 444, 40 S.Ct. 293, 64 L.Ed. 343, 8 A.L.R. 1121; Blease v. Safety Transit Co., 4 Cir., 50 F.2d 852, 856; Champion Spark Plug Co. v. Reich, 8 Cir., 121 F.2d 769. The Administrator points to Sect. 17 of the Act, 29 U.S.C.A. § 217 giving the court jurisdiction “for cause shown * * * to restrain violations,” and to such cases as United States v. Trans-Missouri Freight Ass’n, 166 U.S. 290, 309, 17 S.Ct. 540, 41 L.Ed. 1007; Federal Trade Commission v. Goodyear Co., 304 U.S. 257, 259, 260, 58 S.Ct. 863, 82 L.Ed. 1326; National Labor Relations Board v. Pennsylvania Greyhound Lines, 303 U.S. 261, 271, 58 S.Ct. 571, 82 L.Ed. 831, 115 A.L.R. 307; and he contends that injunctions to establish public rights stand on a different footing from those in private matters. We are of opinion that Section 17 gives jurisdiction to grant but does not require in every case the grant of an injunction. Injunction is here, as it usually is, in the discretion of the court. This case is not one where the violations were dead issues at the filing of the suit; nor was cessation entirely voluntary, but was the result of recent official pressure. And Jacksonville Paper Company and the Administrator were still at serious issue as to some applications of the law. The District Court refused to hear evidence as to violations between April 27, 1940, and the filing of the suit. We think it would have been in order to hear whether the violations were continuing and whether if they had ceased there was no purpose to renew them; but it is clear there had been recent violations, and there was still contention, and this was enough to ground the grant of injunction upon. It was error, however, to grant an injunction as broadly as was done, for it reads: “from violating any of the pro-visions of the Fair Labor Standards Act of 1938.” Such an injunction would put the defendants in contempt of court if thereafter in any way they violated this law, whereas it should have been restricted to a repetition of such violations as were found to have been committed, and similar ones. New York, New Haven & H. R. Co. v. Interstate Commerce Commission, 200 U.S. 361, 362, 404, 26 S.Ct. 272, 50 L.Ed. 515. A limited injunction was also granted, but as to Jacksonville Paper Company it refers to employees at named warehouses and offices only. We need not pass upon the question whether the judgment for divided costs is good as against the Administrator, who asserts he stands as the United States in being immune against costs, for we shall reverse the judgment on the grounds above discussed, and this question is not likely to recur in the case. We do not undertake to frame a decree appropriate to the whole situation, thinking it can best be done with the aid of counsel in the court below. We therefore reverse the judgment and remand the cause for such modification of the findings as ought to be made and a new decree in accordance with- this opinion. See 11 Am.Jur., Commerce, especially §§ 43, 46, 62, 63, 64, 66, 69, 71, 74.. We so held in Jax Beer Co. v. Redfern, 5 Cir., 124 F.2d 172, and Swift & Co. v. Wilkerson, 6 Cir., 124 F.2d 176. 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_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. Howard Donald S. WASHINGTON, Appellant, v. UNITED STATES of America, Appellee. No. 21105. United States Court of Appeals District of Columbia Circuit. Argued Jan. 12, 1968. Decided May 20, 1968. Mr. George C. Davis, Washington, D. C., with whom Mr. John D. Conner, Washington, D. C. (both appointed by this court) was on the brief, for appellant. Mr. James A. Strazzella, Asst. U. S. Atty., with whom Messrs. David G. Bress, U. S. Atty., Frank Q. Nebeker and Seymour Glanzer, Asst. U. S. Attys., were on the brief, for appellee. Before Danaher, Burger and Leventhal, Circuit Judges. DANAHER, Circuit Judge: Convicted of violations of the narcotics laws, this appellant contends that the District Court erred in denying his motion to suppress the use in evidence against him of some 15 capsules containing heroin. He argues that when he discarded an envelope containing the heroin capsules, he acted in apprehension of an impending arrest' for which, at least up to that moment, the police lacked probable cause. Before the District Court was evidence that on July 11, 1966 about 3:30 P.M., two police officers, specially trained and experienced in investigations of narcotics violators, were dressed in old clothes. While on investigative duty, they observed the appellant who was known to them as a narcotics addict mingling with and talking to yet other known narcotics users in an area much frequented by such people. While maintaining such surveillance, one of the officers saw the appellant receive money from and pass something to one of the group whereupon the officers approached. The appellant commenced to walk away. The officers walked after him. He then began to hasten his steps and so did the officers. As he crossed the street at a run, he discarded an envelope from which a few capsules were then spilled onto the street. One officer picked up the capsules, identified them as of the type usually found in the possession of narcotics violators and called to the other officer “Stop him— I’ve got the stuff,” or words to that effect. The appellant was then placed under arrest, as the District Judge found. In Dorsey v. United States it was contended that there had been an illegal search where narcotics had been seized by two narcotics squad officers who were engaged in a similar preventative patrolling mission. We observed: “If policemen are to serve any purpose of detecting and preventing crime by being out on the streets at all, they must be able to take a closer look at challenging situations as they encounter them. All we hold here is that this was one of those situations, and that the police response to it was a justifiable one which did not project their law-enforcement responsibilities beyond permissible constitutional limits.” Earlier in Green v. United States, we remarked that officers in the course of an investigation may ask questions before making an arrest. Under the circumstances there disclosed, we concluded that the narcotics officers were entitled to ask a known addict if he were still using narcotics and, if so, to make an effort to induce him to inform them as to the sources of his supply. One of two men under observation responded to the police call but the other took flight. His precipitous action, we observed, constituted one more circumstance to be taken into account by the officer who followed him. It was then concluded that, all circumstances considered, the trained, experienced narcotics officers acted reasonably as they moved toward the appellant. We observed: “He could have declined to talk. He could have refused to halt. The officers certainly would have had no right whatever, then and there without more, either to seize him or to search him.” This appellant would have us say that he was unlawfully compelled to give evidence against himself when he discarded the contraband for he knew that he possessed the heroin and feared that it would be discovered if he were placed under arrest. There had been no arrest. There had been no search. Washington himself threw down the envelope containing the narcotics. After the evidence had thus come to light, the District Court assuredly was free to reach a conclusion of reasonableness respecting the conduct of the officers. The ensuing arrest was not unlawful. We find no error. Affirmed. . 125 U.S.App.D.C. 355, 372 F.2d 928 (1967). . Id. at 358, 372 F.2d at 931. . 104 U.S.App.D.C. 23, 259 F.2d 180 (1958), cert, denied, 359 U.S. 917, 79 S.Ct. 594, 3 L.Ed.2d 578 (1959). . Id. at 24, 259 F.2d at 181. . But in the circumstances shown the police certainly were privileged to question him if for no other reason than that he give a good account of himself. Freeman v. United States, 116 U.S.App.D.C. 213, 214, 322 F.2d 426, 427 (1963); cf. Brown v. United States, 125 U.S.App. D.C. 43, 46 n. 4, 365 F.2d 976, 979 n. 4 (1966); Lee v. United States, 95 U.S. App.D.C. 156, 221 F.2d 29 (1954). . Cf. Jackson v. United States, 112 U.S. App.D.C. 191, 301 F.2d 515, cert. denied, 369 U.S. 859, 82 S.Ct. 947, 8 L.Ed.2d 17 (1962). 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:

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