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songer_appnatpr	99	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "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. DIKEMAN et al. v. JEWEL GOLD MINING CO. et al. (Circuit Court of Appeals, Ninth Circuit. June 14, 1926.) No. 4829. Execution @=»302. Under Alaska Statute, execution sale of property of lessor to satisfy specific liens against it-held to exhaust such liens, and after redemption of property 'by lessee it was not subject to resale to satisfy same demands. Appeal from the- District Court of the United States for the Third Division of the Territory of Alaska; E. E. Ritchie, Judge. Action by J. M.' Dikeman and others against the Jewel Gold Mining Company and others. From an order denying a petition for resale of property of the named defendant to satisfy certain claims, plaintiffs appeal. Affirmed. See, also, 2 F.(2d) 665. Arthur Frame and. Jas. S. Truitt, both of Anchorage, Alaska, and Walter Christie, of San Francisco, Cal., for appellants. W. H. Rager, of Anchorage, Alaska, for appellee Jewel Gold Mining Co. Before GILBERT, HUNT, and RUD-KIN, Circuit Judges. RUDKIN, Circuit Judge. This case was before this-court on writ of error in Dikeman v. Jewel Gold Mining Co., 2 F.(2d) 665, where a full, statement of the facts may be found. After the writ of error was there dismissed for want of jurisdiction, the plaintiffs in the court below petitioned that court for an order directing a resale of the property of the Jewel Gold Mining Company, the lessor, to satisfy the balance due on the personal decrees against the lessee. The present appeal is from an order denying that petition. As will appear from the statement referred to, personal decrees were entered in favor of the several plaintiffs and against the lessee, Jewel Mining Syndicate, but no relief was awarded against the lessor, Jewel Gold Mining Company, beyond a decree establishing certain liens against its property and directing a sale thereof to satisfy them. Briefly stated, the appellants now contend that the redemption by the lessee reinstated their liens against the property of the lessor, and the property should be resold to satisfy those liens. On the other hand, the appellees contend that the liens against the property of the lessor were exhausted by the sale, and that the same property cannot be resold to satisfy the same demands, even though there has been a redemption from the prior sale. This latter contention must be sustained. As is well known, the Alaska statute was taken from the laws of Oregon, and both sides invoke the construction placed on the laws of Oregon by its Supreme Court. In Flanders v. Aumack, 32 Or. 19, 51 P. 447, 67 Am. St. Rep. 504, it was held that the redemption of real property from an execution sale by the grantee of the judgment debtor, when the property was bid in for less than the amount of the judgment, reinstates the lien.for the unpaid balance, and a resale of the property may be had to satisfy the same. But the court was careful to distinguish between specific liens and general judgment liens. Thus, it was said: “A mortgage is a specific lien, which attaches by virtue of the contract of the parties concerned; but the lien of a judgment is general, and attaches by operation of law, as a sequence of its rendition. Foreclosure is a remedy by which the property covered by the mortgage may be subjected to sale for the payment of the demand for which the mortgage stands as security, and, when the decree is had and the property sold to satisfy it, the mortgagee has obtained all he contracted for; but, if there is also a personal decree against the mortgage debtor, this becomes, from the date of its docketing, a general.lien upon his real property, as in ease of a judgment; and, if a deficiency remains after the; application of the proceeds of the sale of the lands covered by the mortgage, the decree may be enforced by execution, as in ordinary cases. * * • The resale does not take place under the order for the sale of the specific property covered by the mortgage lien, for that has been exhausted, but under the personal decree which remains as a deficiency decree against the mortgage debtor after the application of the proceeds arising under the order of sale; and a redemption will not reinstate the specific mortgage lien, while it will the general lien acquired by the personal decree. This distinction is clear, and is bottomed both upon principle and authority. The redemption is from the sale, and not from the mortgage; and if the lien of the personal decree has never attached, by reason of the mortgagor not having the fee of the property at the time it was rendered, there never existed any lien to be reinstated against his successor in interest, who purchased prior to the decree.” See, also, Williams v. Wilson, 42 Or. 299, 70 P. 1031, 95 Am. St. Rep. 745. It will thus be seen that, under the decisions of the Supreme Court of Oregon, the specific liens against the property of the lessor were exhausted by the sale, and were not reinstated by the subsequent redemption. The decree is therefore affirmed. Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number. Answer:
songer_initiate	B	What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff. UNITED STATES of America, Plaintiff-Appellee, v. James Michael BAKER, Defendant-Appellant. No. 78-1883. United States Court of Appeals, Ninth Circuit. Jan. 18, 1979. John C. Emerson, Special Atty., U. S. Dept. of Justice, San Francisco, Cal., for plaintiff-appellee. Daniel A. Bacon, Fresno, Cal., for defendant-appellant. Before BROWNING and CHOY, Circuit Judges, and CHRISTENSEN, District Judge. The Honorable A. Sherman Christensen, Senior United States District Judge for the District of Utah, sitting by designation. PER CURIAM: James Michael Baker whose appeal is before us, was convicted with five other defendants in a bench trial before the district court of conducting an illegal gambling business in violation of 18 U.S.C. § 1955. Vital to Baker’s conviction were taps by federal agents of telephone lines which were used by the various defendants in connection with their gambling operations. Overriding the question of the sufficiency of the evidence, also presented by Baker here, is his contention that issuance by the district court of the order authorizing the interceptions, and consequentially the admission into evidence of the overheard conversations, constituted error by reason of alleged failure of the supporting affidavits “to set forth facts adequately showing why for each separate wiretap traditional investigative techniques had been attempted, had failed, or were unlikely to succeed.” It is beyond question that without the electronic interception of Baker’s conversations the government’s case against him would have failed. It is not so clear that the elimination of the fruits of any other one of the remaining three taps authorized by the same order upon the basis of the same affidavits, would have had similar effect. The significance, if any, of such differentiation is not addressed in the briefs, nor is the differentiation itself. Short of the latter refinement which we have determined to be insignificant in this case for reasons later appearing, Baker’s counsel earnestly relies upon language found in United States v. Abascal, 564 F.2d 821 (9th Cir. 1977), cert. denied, 435 U.S. 953, 98 S.Ct. 1583, 55 L.Ed.2d 804 (1978), for insistence that interception of Baker’s conversation by means of one of the taps was invalid because all of them were not adequately supported by the affidavits upon which the court’s order was based. I. VALIDITY OF THE WIRETAPS It would be a gratuitous retracing of lines already drawn by numerous decisions of this court, and a blinking out of the narrowness of appellant’s attack, to discuss in detail the considerations leading us to conclude that the foundation affidavit generally is adequate to support the district court’s order. It was not comprised of mere “boilerplate”, conclusionary language, circumstances that would apply to problems that could be expected in the investigation of ordinary gambling cases, the stretching of a single investigative episode into “a full and complete statement”, or undue reliance upon the investigator’s experience in other cases. It “etched the nature and contours” of this particular gambling business from the statements of reliable informants who had firsthand knowledge but who were afraid and would refuse to testify in court, as well as “the nature and extent of this investigation up- to the requesting point with enough particularity to allow a judge reasonably to ascertain that continued use of ordinary surveillance probably would be fruitless.” United States v. Abascal, 564 F.2d 821, 826 (9th Cir. 1977), supra, citing United States v. Spagnuolo, 549 F.2d 705 (9th Cir. 1977), supra. Baker is in no position to complain because the affidavit on which the intercept order was based did not demonstrate as to himself particularly that traditional investigative techniques had been attempted and failed or were unlikely to succeed. Before the wiretap of the Judd telephone was accomplished, Baker’s participation in the illegal gambling business being investigated was not known so far as the record discloses.- The foundation affidavit named as suspects the other five defendants “and others yet unknown”. The government is not required to identify an individual in a wiretap authorization application unless it has probable cause to believe that the individual is engaged in criminal activity under investigation and that the individual’s conversation will be intercepted over the target telephone. 28 U.S.C. § 2518(l)(b)(iv). United States v. Alfonso, 552 F.2d 605, 613-615 (9th Cir.), cert. denied, 434 U.S. 922, 98 S.Ct. 398, 54 L.Ed.2d 279 (1977). Cf. United States v. Scully, 546 F.2d 255, 259 (9th Cir. 1976), cert. denied, 430 U.S. 970, 97 S.Ct. 1168, 50 L.Ed.2d 578 (1977) supra. In any event, in the absence of a showing of bad faith or prejudice Baker’s intercepted conversations thus properly could be considered as those of a participant yet unknown at the time of the application and could be utilized for evidence, notwithstanding the absence of reference to him in the intercept application, providing that the showing was sufficient with respect to Judd and his telephone over which the interceptions questioned by Baker were made. Cf. U. S. v. Donovan, 429 U.S. 413, 97 S.Ct. 658, 50 L.Ed.2d 652 (1977). See also U. S. v. Santarpio, 560 F.2d 448, 454 (1st Cir.), cert. denied sub nom. Schepici v. United States, 434 U.S. 984, 98 S.Ct. 609, 54 L.Ed.2d 478 (1977); U. S. v. Sklaroff, 552 F.2d 1156, 1158 (5th Cir. 1977), cert. denied sub nom. Goldstein v. U. S., 434 U.S. 1009, 98 S.Ct. 718, 54 L.Ed.2d 751 (1978); U. S. v. De La Fuente, 548 F.2d 528, 538 (5th Cir.), cert. denied sub nom. Sierra et al. v. U. S., 434 U.S. 954, 98 S.Ct. 479, 54 L.Ed.2d 312 (1977); U. S. v. Joseph, 519 F.2d 1068 (5th Cir.), cert. denied, 424 U.S. 909, 96 S.Ct. 1103, 47 L.Ed.2d 312 (1975). See also United States v. Scully, 546 F.2d 255 (9th Cir. 1976), cert. denied, 430 U.S. 970, 97 S.Ct. 1168, 60 L.Ed.2d 578, supra. Yet there remains the question whether by reason of any flaw in the Jones affidavit peculiar to Judd the showing was insufficient to sustain interception of conversations over Judd’s telephone, including those of Baker. We do not here question the standing of Baker to raise this point. Abascal, 564 F.2d at p. 825. If the foundations for a wiretap are established with regard to a particular, telephone, ordinarily it is not fatal to the order of interception for that telephone that the particularization with regard to another telephone or principal may be insufficient. Conversely, if there is no foundation for an interception of a wire communication over a telephone for want of a particularized showing of need, it will not suffice as to that telephone that there is a foundation for the wiretapping of other telephones. This is the teaching of Abascal and Santora So a showing that two or more principals are involved in one conspiracy as to one of which a sufficient affidavit has been filed is not alone sufficient to support an application as to all of the alleged principals or their telephones. But a particularized need for wiretaps may be established as to several principals and their telephones, depending upon the circumstances alleged, not only by a minutia of detail discretely directed, but by persuasive facts pertaining in common to all of the principals and their telephones. The Jones affidavit, in addition to individually directed details, does allege circumstances pertaining to all of the tapped telephones and the putative participants that meet the tests laid down by this court. These included a factual showing of due consideration of the possibilities of infiltration, the infeasibility of locating gambling records, the reluctance of informants to testify in court, the probable unproductiveness of investigation through grand jury proceedings, the conducting of numerous physical surveillances of all of the principals listed in the affidavit, including Judd, and the discovery that they were particularly wary of surveillance. These general allegations were particularized by specific examples of difficulties and obstructions encountered in the process. It is true that Judd’s situation unlike that of other suspects was not covered by specific examples of unsuccessful physical surveillance or infiltration. Yet we believe that the Jones affidavit read as a whole reasonably established as to Judd, as well as to the others named, that other or additional investigative procedures short of electronic surveillance if further pursued would be unlikely to succeed. Government investigators, subject to evaluation by the courts on similar bases, are entitled to use reason and common sense in the performance and documentation of their investigations to support applications for wiretaps. The statute does not mandate the indiscriminate pursuit to the bitter end of every non-electronic device as to every telephone and principal in question to a point where the investigation becomes redundant or impractical or the subjects may be alerted and the entire investigation aborted by unreasonable insistence upon forlorn hope. Upon the showing made, the district court could reasonably conclude, and did so, that alternative means of investigation had failed or likely would be unsuccessful as to Judd. The order approving the interceptions being valid, the admission into evidence of the conversations participated in by Baker over Judd’s telephone was proper. II SUFFICIENCY OF THE EVIDENCE Baker joined with the other defendants, without waiving objections to the wiretap order, in a stipulation of facts. The other defendants agreed that the information therein recited was sufficient to support findings of their guilt, but Baker declined to accede to the latter construction as pertaining to himself, and submitted a supplemental affidavit which he asked the court also to consider in his defense. Revealed by the authorized interceptions were the operations of a gambling business which received wagers on college and professional sports, the majority of such wagers consisting of football bets placed by telephone. In all, more than $140,000 in bets were received from 86 persons during the 13-day period of the interceptions. The daily operations of the gambling business were conducted primarily at a residence in Fresno leased to defendant Robert Monopo-li. During the period in question, defendants Robert Monopoli, Julius Monopoli, Bruce Wilkins and David Hunt disseminated line information to, and accepted bets from, betters on a telephone at the Fresno office and two other locations. John Judd was an independent bookmaker who accepted bets at his Bakersfield residence. Every few days during the indictment period, Wilkins called defendant Judd in Bakersfield and received the “line” from Judd on basketball and football games to be played in the coming week. No other source of line information was used by the gambling business. Wilkins also placed lay-off wagers with Judd by telephone. The gambling business did not use any other outlet for lay-off wagers. In addition, Judd was a one-third partner with Robert Monopoli and Wilkins in the profits or losses resulting from bets placed in Fresno with football cards. Baker was an independent bookmaker who operated from a residence in Arroyo Grande, California. On five occasions on five separate days during the indictment period, he supplied line information to Judd, which Judd relayed to Wilkins or Monopoli; Wilkins and Monopoli disseminated such line information to their betters or agents in Fresno. On five occasions on five separate days during this period Baker accepted a total of $3,700 in lay-off wagers from Judd, which Judd had received as lay-off wagers from Wilkins or Monopoli. After receiving this and other information through the wire interceptions, FBI agents executed search warrants. At James Baker’s residence they found numerous line sheets and betting slips and a settlement sheet reflecting 19 accounts. Transcripts of the detailed communication interceptions indicated a close relationship between the business Judd and Baker transacted over the telephone and the gambling business conducted by the other defendants. Supplementing by affidavit the agreed statement of facts, Baker alleged that he or Judd received line information by calling J. K. Sports, Inc., in Los Angeles; that he did not furnish line information to Judd with knowledge that it would be relayed to Monopoli or Wilkins; that the wagers he received from Judd were on Judd’s personal account and were not lay-off bets; and that he was not aware at any time during the indictment period of the Fresno gambling operation. Although it appears that Baker had no knowledge of the Fresno operation as such, the stipulation does not support his claim that Judd received line information from J. K. Sports. The stipulation indicates that Baker knew that Judd’s wagers were lay-off bets because in one of the conversations Judd told Baker, “It’s a lay-off from a place up there. See under ‘me’.” (“Me” was the designation of an account referred to previously by Judd in relaying bets received from another member of the organization.) The trial court was not bound to accept defendant’s allegations at face value and could draw reasonable inferences from the stipulation of facts. It was reasonable to conclude that Baker violated Section 1955 because he regularly and directly exchanged line information and lay-off bets with Judd as an integral part of the illegal gambling business. This conviction finds ample support in the record. Affirmed. . An “illegal gambling business” as defined by the statute is one which is a violation of the law of a State or political subdivision in which it is conducted, involves five or more persons who conduct, finance, manage, supervise, direct or own all or part of such business, and has been or remains in substantially continuous operation for a period in excess of thirty days or has a gross revenue of $2,000 in any single day. . The Omnibus Crime Control and Safe Streets Act of 1968, § 2518(l)(c), in part provides that each application for an order authorizing or approving the interception of a wire or oral communication shall include “a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous.” . The wiretap statute requires that § 2518(l)(c) be satisfied with regard to each separate wiretap. Thus a showing of need for the Batchelder wiretap would not necessarily justify the need for the Petroff wiretap. It is not enough that the agents believe the telephone subscribers they wish to tap are all part of one conspiracy. Less intrusive investigative procedures may succeed with one putative participant while they may not succeed with another. . 564 F.2d at p. 826. See also United States v. Santora, 583 F.2d 453, 466 (9th Cir. 1978), which recognized that an initial intercept order was sufficiently specific to meet standards applied in other 9th Circuit cases but that “this does not mean that once the Government has established the inadequacy of investigative alternatives relating to certain subjects, it may then dispense with the required showing when applying to tap the telephone of other conspirators.” . United States v. Santora, 583 F.2d 453 (9th Cir. 1978), supra; United States v. Abascal, 564 F.2d 821, 825 (9th Cir. 1977); United States v. Spagnuolo, 549 F.2d 705, 710 (9th Cir. 1977); United States v. Scully, 546 F.2d 255, 260-61 (9th Cir. 1976), cert. denied, 430 U.S. 970, 97 S.Ct. 1168, 50 L.Ed.2d 578 (1977); United States v. Feldman, 535 F.2d 1175, 1179 (9th Cir. 1976); United States v. Kalustian, 529 F.2d 585, 588-589 (9th Cir. 1975); United States v. Turner, 528 F.2d 143, 152 (9th Cir.), cert. denied sub nom. Grimes v. United States, 423 U.S. 996, 96 S.Ct. 426, 46 L.Ed.2d 371 (1975); United States v. Smith, 519 F.2d 516, 518 (9th Cir. 1975); United States v. Kerrigan, 514 F.2d 35, 38 (9th Cir.), cert. denied, 423 U.S. 924, 96 S.Ct. 266, 46 L.Ed.2d 249 (1975). . The application was in the form of an affidavit by the Special Attorney for the Department of. Justice. While he set out the context and results of the investigative summary and ventured conclusions concerning satisfaction of the statutory requirements, the lower court had to look primarily to the affidavit of Robert Edward Jones, Special Agent of the Federal Bureau of Investigation, as do we, to determine whether the requisite factual showing had been made. . Where proof of the jurisdictional number of participants is dependent upon the validity of the other wiretaps or where a particular wiretap otherwise valid constitutes the “fruits of an illegal wiretap”, a particular defendant who could claim no flaws in the tap of his own telephone may have standing to question the validity of other taps by reason of a failure of the foundational affidavit to set forth facts adequately showing for all of the wiretaps that traditional investigation techniques had been attempted, had failed or were unlikely to succeed. See 18 U.S.C. § 2515; United States v. Iannelli, 477 F.2d 999 (3d Cir. 1973), affd, 420 U.S. 770, 95 S.Ct. 1284, 43 L.Ed.2d 616 (1974); United States v. Spagnuoio, 549 F.2d 705 (9th Cir. 1977), supra, at pp. 711-712. See also Abascal, supra, at 827. This is not the situation here, where all other taps were at least as clearly supported as the tap on Judd’s line. . Two wiretaps were involved in Abascal. As to one, there was “little doubt of the sufficiency of the supporting affidavit.” The court held with regard to the second tap on the basis of a showing similar to the one made here that its supporting affidavit also was sufficient. In Santora, an affidavit purportedly supporting a second tap was held insufficient because it relied by reference upon an affidavit dealing with a prior tap and different suspects. . The “line” or “point spread” is a number of points given to the weaker team in a particular contest to make it as likely to win as the stronger team. The bookmaker must utilize a line to assure that bets are attracted to each team in equal amounts. If a bookmaker can achieve equal wagers on each team, he assumes no risk on the outcome of the game but is guaranteed a profit he charges the losing betters. (Stipulation of the parties.) . When betting action becomes heavy on one side, the bookmaker uses three principal devices to bring the betting volume into parity. He may refuse to accept bets on the heavy side hoping that continued betting on the other side will bring the game into balance. He may adjust the line making the underbet side a more attractive wager. More probably, however, particularly if game time is near, the bookmdker will bet the excess with another bookmaker. Known as a “lay-off’ bet this wager is placed as if the laying-off bookmaker is betting and he must make the wager at the second bookmaker’s line and must pay the prevailing profit if he loses. (Stipulation of the parties.) . United States v. Sacco, 491 F.2d 995 (9th Cir. 1974); United States v. Santarpio, 560 F.2d 448 (1st Cir.), cert. denied sub nom. Schepici v. United States, 434 U.S. 984, 98 S.Ct. 609, 54 L.Ed.2d 478 (1977), supra; United States v. Alfonso, 552 F.2d 605 (5th Cir.), cert. denied, 434 U.S. 922, 98 S.Ct. 398, 54 L.Ed.2d 279 (1977), supra; United States v. DiMuro, 540 F.2d 503 (1st Cir. 1976), cert. denied, 429 U.S. 1038, 97 S.Ct. 733, 50 L.Ed.2d 749 (1977); United States v. Schaefer, 510 F.2d 1307 (8th Cir.), cert. denied, 421 U.S. 978, 95 S.Ct. 1980, 44 L.Ed.2d 470 (1975); United States v. Smaldone, 485 F.2d 1333 (10th Cir. 1973), cert. denied, 416 U.S. 936, 94 S.Ct. 1934, 40 L.Ed.2d 286 (1974); United States v. Thaggard, All F.2d 626 (5th Cir. 1973); United States v. Iannelli, 477 F.2d 999 (3d Cir. 1973), affd, 420 U.S. 770, 95 S.Ct. 1284, 43 L.Ed.2d 616 (1974), supra. 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_applfrom	L	What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court). SUN OIL COMPANY, Transferee, Sunray DX Oil Company and Subsidiaries, Transferor v. COMMISSIONER OF INTERNAL REVENUE, Appellant. No. 76-2388. United States Court of Appeals, Third Circuit. Argued May 5, 1977. Decided Sept. 7, 1977. As Amended Nov. 29,1977. Myron C. Baum, Acting Asst. Atty. Gen., Gilbert E. Andrews, Gary R. Allen, John A. Dudeck, Jr., Attys., Tax Div., Dept, of Justice, Washington, D. C., for appellant. Thompson, Knight, Simmons & Bullion, Buford P. Berry, J. David Anders, Emily A. Parker, Dallas, Tex., for appellee. Before SEITZ, Chief Judge, ROSENN, Circuit Judge, and LORD, Chief Judge. Joseph S. Lord, III, Chief Judge of the Eastern District of Pennsylvania, sitting by designation. OPINION OF THE COURT ROSENN, Circuit Judge. In the quest to obtain capital, to generate business liquidity, or to minimize taxes, private enterprise often resorts to the sale of property and a simultaneous leaseback to the seller. A recurring question in transactions of this sort is whether after the transfer of title to the property some or all of the critical incidents of ownership still remain with the grantor despite his newly designated status as lessee. This case concerns conveyances of 320 parcels of unimproved service station sites at cost by Sunray DX Oil Company (“Sun-ray”) to a tax-exempt trust and simultaneous leasebacks to the grantor. The sole question is whether the transaction was a mere financing arrangement between the parties or an authentic sale. The Commissioner disallowed Sunray’s deduction of its rental payments on the ground that the transaction did not constitute a true sale and that the rental payments were not a bona fide business expense deductible under section 162(a)(3) of the Internal Revenue Code of 1954 (“the Code”). In a proceeding for redetermination of the deficiency brought by Sun Oil Co., Sunray’s successor in interest, the United States Tax Court held that the rental payments were deductible. The Commissioner appealed and we reverse. I. During the taxable years in issue (1965-1968), Sunray, together with its subsidiaries and predecessors, was an integrated oil company engaged in all phases of the petroleum business, including marketing of petroleum and petroleum products. It was merged on October 25, 1968, into Sun Oil Company, a New Jersey corporation which was subsequently restructured as the Sun Oil Company, the appellee taxpayer herein. During the 1950’s and early 1960’s Sunray was actively involved in acquiring service station sites primarily in seventeen central-states along interstate highways and in certain urban areas. For a variety of business reasons, Sunray concluded that the most preferable means of obtaining working capital would be to convey its service station sites and then simultaneously lease them back rather than to mortgage the properties and incur a debt obligation on its books. After deciding to pursue this course of action, Sunray ascertained that General Electric Pension Trust (the “Trust”) was interested in taking title to the properties, advancing funds to Sunray equal to the cost of the properties, and then entering into lease agreements with Sunray on a long term basis together with options to purchase. After extensive negotiations concerning terms and conditions of the proposed sale and leasebacks, Sunray and the Trust entered into their first letter agreement, dated October 13, 1964, under the terms of which Sunray agreed to convey by general warranty deed and the Trust agreed to purchase approximately 120 service station sites. The agreed purchase price for the parcels of land, mostly unimproved, was equal to Sunray’s cost of acquisition and in the aggregate was not to exceed six million dollars. Simultaneous with purchase, Sun-ray agreed to lease the properties from the Trust for a primary term of 25 years with quarterly rentals sufficient to enable the Trust to amortize its investment in full over such initial term at an interest return of 4% percent on its investment. The lease contained options exercisable by Sunray to renew the lease for two five-year terms at annual rentals equivalent to 2V2 percent of the purchase price of the land and for an additional eleven five-year terms at annual rentals equivalent to IV2 percent of the purchase price. On April 24, 1967, Sunray entered into a second letter agreement with the Trust under the terms of which the Trust agreed to purchase and Sunray agreed to sell approximately 200 additional service station sites at a price equal to Sunray’s acquisition costs but not to exceed an aggregate price of eleven million dollars. Sunray again agreed to leaseback the properties for a primary term of 25 years with quarterly rentals sufficient to amortize the Trust’s investment in full over such initial term at an interest return of 5% percent with similar renewal options to Sunray as in the first letter; the annual rentals for the first two five-year terms were equivalent to 3 percent of the purchase price, for five additional five-year terms were equivalent to 2V2 percent of the purchase price, and for six final five-year terms equaled 2 percent of the purchase price. Sunray consummated the second letter agreement by conveying 213 separate parcels of land each by separate warranty deed. At or about the same time, Sunray leased the properties for rentals under the terms set out in the letter agreement. Sun-ray and the Trust executed master leases at each of the closings, the terms of such leases being essentially the same except for the effective dates, properties described, and the quarter-annual payments. The leases require that the basic rent be payable absolutely net to the Trust throughout the term without deduction or setoff and that Sunray, as lessee, pay all taxes, assessments, or similar charges assessed against the premises. The major provisions of the leases were capsulized by the Tax Court as follows: Each lease afforded Sunray an option to purchase any of the leased properties on specified dates, provided Sunray had discontinued or would discontinue the then business use of the property to be purchased. In each instance the price to be paid for the property was to equal its “fair appraised value * * * to Lessor.” The appraisal of the property was to be conducted by three appraisers: one chosen by the lessor, one chosen by the lessee, and one chosen by the other two appraisers. The decision of any two appraisers was to be conclusive. Sunray required that it be able to terminate its obligations to lease any property that might prove uneconomical to operate as a service station. Each lease was therefore made to provide: During the Primary Term of this Lease, Lessee may, if Lessee intends to discontinue or has discontinued the use of the Leased Premises for its then business use, make a rejectable offer to purchase the Leased Premises as of any Basic Rent payment date occurring, in the Primary Term at a price in cash equal to the sum of the present values * * * of all quarterly Basic Rent payments to become due on and after the proposed purchase date * * * plus an amount sufficient to insure the Trust of a return of 5 percent per annum over the term of the investment. Each lease further provided that if on any one of several specified dates * * * Lessee, in the sole exercise of its business judgment, determines that the continued leasing of the Leased Premises has become unprofitable or unreasonable or unnecessary in the conduct of its business use, Lessee may make a rejectable offer to purchase * * . Offers to purchase made pursuant to this clause were to be identical to those offers that might have been made by Sunray had it discontinued the then business use of the property. The Trust was given 30 days in which to consider any rejectable offer that might be made and was nowise obligated to accept such an offer. In the event such an offer were rejected, however, Sunray would be released from its obligation to lease the property which it had offered to purchase. Each lease further provided: In lieu of making any rejectable offer to purchase the Leased Premises permitted * * under this Lease, Lessee shall have the right to substitute for the Leased Premises other property (to consist of land only) having a then value at lease equal to the rejectable offer to purchase consideration which otherwise would have been applicable. * * * (Footnotes deleted.) As of July 15, 1974, Sunray made over 130 rejectable offers to repurchase properties which it had decided would not be used for business purposes. The Trust accepted each of the offers, reconveyed the properties, and released Sunray from all obligations under the lease. II. Relying heavily on Helvering v. Lazarus & Co., 308 U.S. 252, 60 S.Ct. 209, 84 L.Ed. 226 (1939), the Commissioner contends that Sunray retained all of the benefits and burdens of ownership to the 320 service station sites it conveyed to the Trust. He maintains that the purported transfer of title and leaseback agreements were, in substance, nothing more than an elaborate financing device in which the Trust stood essentially in the position of a secured lender. The leaseback agreements, the Commissioner asserts, enabled Sunray to reflect the transactions as a footnote on its balance sheets rather than a liability, minimizing any impact on its credit rating, and, at the same time, enabled Sunray to claim a 100 percent “rental” deduction for its full cost of acquiring non-depreciable land; and that Sunray in fact retained an equity interest in the properties disqualifying the periodic payments under the leases from being deductible under section 162(a) of the Code. The Commissioner asserts that his position is supported by: (1) the “net” lease arrangement; (2) the condemnation and casualty loss provisions of the lease; (3) Sun-ray’s absolute options to repurchase under the terms of the leases; (4) Sunray’s unique right to substitute properties in the event its offers were rejected; and (5) “rental” provisions which served simply to return to the Trust the principal sum advanced with fixed interest. Sunray, however, argues that the periodic quarterly payments made pursuant to its agreements with the Trust constituted consideration for the use for business purposes of the service station sites, that the properties were sold for a fair sales price in an arm’s length transaction, and that the payments were, therefore, deductible as rentals under section 162(a)(3). The Tax Court concluded that the terms of the leases did not support the Commissioner’s contention that Sunray retained an equity interest in the leased properties after the conveyances. The court believed that the purpose of the provisions for repurchase of the leases was not “to provide Sunray with the means to reacquire the leased properties,” the Trust being under no obligation to accept any offers which might be made, but to insure Sunray’s ability to cancel the leases of any property which might prove uneconomical to operate as a service station site. We disagree. III. A threshold problem confronting us is the standard of review. Sunray asserts that the Tax Court based its decision on findings of fact, which included a finding as to the parties’ intent, and that these findings are binding upon us unless clearly erroneous. The record in the instant case, however, rests substantially on an indisputed record, consisting principally of stipulations of the underlying facts and appended exhibits, including the leases at issue. The basic rights, duties, and economic interests of the parties are essentially not in dispute. The dispute centers around the characterization for income tax purposes of the letter and lease agreements. The oral testimony offered by each of the parties was either expert testimony interpreting the documents or background testimony of some of the principals pertaining to the negotiations and their views of the transaction. In ABKCO Industries, Inc., v. Commissioner, 482 F.2d 150, 155 (3d Cir. 1973), we held the “interpretation and construction of a contract is a question of law and that the interpretation by the Tax Court is reviewable by this court.” Of course, the subjective intent of the parties may be a consideration in interpreting an agreement where the documents are ambiguous or incomplete and, in such circumstances, the court’s determination of the unexplained subjective intent is a finding of fact. When, however, the documents embodying the transaction are clear and complete, “the court is called upon to interpret the documents, and from their substance, to characterize the transaction for tax purposes as a matter of law.” Frank Lyon Co. v. United States, 536 F.2d 746, 751 (8th Cir.), cert. granted, 1976, 429 U.S. 1089, 97 S.Ct. 1097, 51 L.Ed.2d 534. Regardless of whether the parties honestly believe the transaction to be a lease, where the documents they have executed fully embody the elements of their bargain it is the documents themselves, not the parties’ conceptions of them, which must govern the legal characterization of the transaction. See Oesterreich v. Commissioner, 226 F.2d 798, 801-02 (9th Cir. 1955). We view the question here as essentially legal, not factual, and fully reviewable by this court. Helvering v. Lazarus & Co., supra; American Realty Trust v. United States, 498 F.2d 1194, 1198 (4th Cir. 1974). IY. In the usual mortgage transaction between a debtor and creditor, the funds advanced to the debtor are secured by a lien on his property. The debtor agrees to repay the funds over a fixed term together with specified interest for their use; generally, the ownership of property does not change hands. The usual business bargain between a commercial lessor and lessee is far more complex. Real estate interests between a lessor and lessee normally are divided into a number of parts, each of which represents an ownership interest in property. In order to sort out these interests, the following pragmatic approach has recently been suggested: If the characterization for federal income tax law purposes of the interests of a lessor and a lessee is to be determined in a manner consistent with business realities, the inquiry must change from “Who is the owner of the property for tax purposes?” to “Are the ownership interests of lessor and lessee as characterized by the parties consistent with traditional substantive business bargains between lessors and lessees?” Rosenberg & Weinstein, Sale-Leasebacks: An Analysis of These Transactions After The Lyon Decision, 45 J. of Tax, 146, 148 (1976). In the instant case, the actual conveyance to the Trust of title to the properties and the fair market value of the prices assigned to them does not appear to be an issue. Although Sunray argues that the presence of -fair market value as a consideration for the transfer distinguishes the instant case from Helvering v. Lazarus & Co., supra; and Leeds & Lippincott Co. v. United States, 276 F.2d 927 (3d Cir. 1960), we doubt that this is a controlling consideration. We deem much more significant the relationships of the parties after the transfer of the properties as a result of the burdens, benefits, and risks imposed on each of them by the terms and conditions of their lease agreements. In determining whether the sale-leaseback transactions in the instant case created the traditionally bargained for business relationships between owner and lessee or whether Sunray in fact retained an equity in the real estate despite the conveyances, we look to the economic realities of the leases and not to the labels applied by the parties. In Lazarus, supra, the taxpayer claimed depreciation on three buildings in which it operated a department store, the legal title to two of which and the assignment of a 99 year lease to the third it had transferred to a bank as trustee for certain land trust-certificate holders. The trustee had at the same time leased all three back to the taxpayer for 99 years with options to renew and purchase. The taxpayer claimed depreciation as a deduction because it bore the capital loss from wear, tear, and exhaustion of the buildings. The Commissioner disallowed the deduction on the ground that the statutory right to depreciation follows legal title. The Court of Tax Appeals, however, allowed the deduction, concluding that the transaction between the taxpayer and the trustee bank was in reality a mortgage loan; that the conveyance of title to the bank was actually given merely as security for a loan and that the “rent” stipulated in the leaseback was intended as a promise to pay an agreed 5 percent interest on the loan. The circuit and Supreme Courts affirmed, the Supreme Court noting that in the field of taxation the courts are “concerned with substance and realities, and formal written documents are not rigidly binding.” Lazarus, supra, 308 U.S. at 255, 60 S.Ct. at 210. A. THE RISKS AND RESPONSIBILITIES As in Lazarus, the lease arrangements between the parties in the case sub judice provide that the lessee, Sunray, pay all taxes and assume the full burden and cost of keeping the premises in good condition. The Trust is relieved of the responsibility to repair, rebuild, or renew any buildings, structures, or improvements “or to make any expenditures whatsoever in connection with this lease....” Moreover, Sunray has agreed to indemnify the Trust and hold it harmless from any and all liabilities arising from the use and occupancy of the premises, including liability for any causes of action, judgments or violations of laws or regulations affecting the premises. Sunray has also obligated itself to pay rent absolutely net throughout the term without deduction or setoff under any circumstances. Diminution of rental even because of casualty or condemnation is not permitted. Thus, it is apparent that the leases impose essentially all burdens, risks, and responsibilities for the properties upon the lessee. Thrusting all of such burdens and risks on the lessee under every condition and circumstance and none on the lessor is hardly consistent with customary substantive bargains in the market place between lessors and lessees. B. THE BENEFITS OF THE TRANSACTION 1. Bejectable offers upon condemnation or seizure by eminent domain. In addition to assuming the risks and burdens incident to the ownership of property, Sunray also controls certain important benefits which traditionally are reserved to the owner in the event leased premises are condemned or seized by eminent domain. During the primary term, if all or any part of the leased premises becomes “in the sole and absolute judgment of lessee” undesirable for the lessee’s business or for any use then existing, because of a taking by condemnation or eminent domain, the lessee has the right to make a “rejectable offer” to purchase the property. The Trust has thirty days after receipt of the written offer to accept or reject it and failure to act within the prescribed period constitutes an acceptance. Significantly, the lessee not only has the unilateral right to determine whether the taking is sufficient to make the premises “undesirable” for its further use, but the repurchase price fixed for the offer is equal to the sum of all present values of the quarterly payments to become due after the proposed date of repurchase, plus a pre-determined premium. If Sunray’s offer to repurchase during the primary term is rejected by the Trust, then the condemnation award is payable both to Sunray and the Trust as “their interests may appear” at the time of the taking. During the extended term of the leases, Sunray also has the absolute right to share in any condemnation award as “their interest may appear.” Significantly, if a portion of the premises is taken by condemnation or eminent domain but the lessee elects to occupy the balance, there is no abatement of rent and the entire award for the taking belongs to the lessee. The lessee is also irrevocably empowered to negotiate the terms and price for any taking and to sell and convey the properties without the prior approval or joinder of the Trust. We view the retention of such broad powers by the lessee in the event of condemnation or government seizure of the land, especially the power to negotiate the price for the land, and the absence of rent abatement in the event of a partial taking and continued occupancy of the balance as inconsistent with the traditional role of a lessee. 2. Rejectable offers upon discontinuance of use. Sunray also enjoys the unique right when, “in the sole exercise of its business judgment,” it decides that the use of a parcel of land is no longer profitable or necessary in conducting its business to make a rejectable offer to purchase it. Again, the price is not dependent upon the fair market value of the land at the time but is fixed in an amount equal to the sum of the present values of all quarterly basic rent payments to become due in the future plus the applicable prepayment premium shown in Schedule “C” attached to the leases. 3. Lessee’s rights of substitution. Sunray also had the extraordinary and absolute right, in lieu of making any reject-able offer or upon rejection of such an offer, to substitute other land having at least equal value for the leased premises. The value of the land to be substituted “[was to] be determined by the lessee’s book value therefor.” This unilateral right of substitution thus enabled Sunray to reacquire legal title to any parcel of land whenever it made a rejectable offer. 4. Analysis of rejectable offer provisions. We believe that the substance and reality of the “rejectable offer” provisions, particularly the rights of substitution, enabled Sunray during the taxable years in issue to retain ultimate control over the leased properties subject to repayment with interest of the advances made by the Trust. We cannot accept the Tax Court’s conclusion that the rejectable offer provisions do not vest any equity interest in the lessee because “the trust was under no obligation to accept such offers as might be made.” The Tax Court, failed to analyze the lessee’s rights of substitution, dismissing them with the observation that they were never exercised and were ultimately rescinded on August 9, 1972; we believe these rights of substitution rendered illusory the lessor’s rights to reject an offer. The limitations of time, distance, and subject matter also erode whatever substance may have existed in the lessor’s rights to reject an offer. The Trust had only thirty days after the receipt of reject-able offers to reject them and the failure to act was deemed to be an acceptance. The offers left the Trust with virtually an impossible task of securing independent appraisals on comparative low unit value properties, securing competent advice, and reaching an intelligent, considered decision within a short time on multiple pieces of diverse properties geographically dispersed over many states. In fact, the Trust initially objected to the thirty-day limitation but ultimately accepted it and agreed to waive an appraisal requirement. Rejecting the offer would have required the Trust, having no employees with background or experience in real estate management, to undertake the heavy burden of managing small real estate parcels and properties scattered over 17 states. The acceptance of such a burden was viewed by trust officials as being inconsistent with the investment goals of this 2V2 billion dollar trust. Furthermore, since Sunray had to certify that the property would no longer be used for its then existing business purposes, the only time the parcels would be repurchased as a practical matter would be for resale. The extreme impracticality of rejecting a rejectable offer is evidenced by the Trust’s acceptance of all 186 of Sunray's “rejectable” offers made during the first few years of the leases. The Trust never took possession of any property described in a rejectable offer. Thus, Sunray, even though it was the titular lessee of the properties, had the exclusive means of realizing the benefits in appreciation in the market value of the properties by making a rejectable offer which had little likelihood of being rejected; if perchance it were rejected, Sunray had the absolute right to substitute other parcels of property. In addition, as we later discuss, Sunray had also the absolute option to repurchase the properties during the extended terms of the leases for an option price equal to the fair appraised value of the leased premises to the lessor. In our view, the powers vested in the lessee in the event of condemnation or seizure of property pursuant to the power of eminent domain, including the right to negotiate the sale or settlement price, the right to make rejectable offers, and the extraordinary rights of substitution are significant benefits characteristic of the ownership of property rather than that of a leasehold. C. THE RENTALS Rentals in these transactions were apparently geared to return the Trust’s advances plus interest. To achieve such a result, the rentals for the primary term were set at a predetermined figure. According to R. Paul Henry, who negotiated these transactions for Sunray, the rental value was fixed by formula based on a twenty-five year period to enable the Trust to recover the amount of money advanced for the properties plus “a reasonable agreed amount for what would be comparable to interest. And then, should the leases be terminated prior to the end of the twenty-five year primary term, an added amount would be paid to G.E. [the Trust] because this was a rather awkward type transaction.” Additional evidence in the record indicates that the rentals do not reflect the market value of the properties. We think it significant that the Trust determined the fair rental value for the properties by merely treating the transaction as an “investment alternative,” rather than applying the capitalization of earnings method as an accepted appraisal method. Mr. Pope, the Commissioner’s expert, prepared a valuation report for the properties which is in the record. It reveals that the rentals fixed for the primary term are quite high. A fair rental value for a non-wasting asset such as unimproved land to a lessee with Sunray’s high credit standing would be the cost of money times the investment. Mr. Pope’s valuation report reveals that in October 1964, Government bonds were yielding 4.15 percent, triple A utility bonds were paying 4% percent, and top grade corporate bonds were paying 4.52 percent. Effective mortgage rates ranged from 5.5 percent to 6.1 percent, depending upon the lending institution. Although the annual rate of return due under the transactions with the Trust was 6.79 percent, Mr. Pope revealed that a reasonable rate of return would have been 4% percent, the interest rate specified in the lease agreement, without the amortization of the cost of the land. The amortization of unimproved land as part of the rental, represented by the difference of 2.144 percent, is not a common practice in the marketplace. In short, the rentals were mathematically geared to amortize the moneys advanced by the Trust at the agreed annual rate of 4% percent over the primary 25 year term of the lease or through the exercise of Sunray’s repurchase rights; they bear little resemblance to the true economic value of the properties. Also supporting the Commissioner’s contention that the rentals do not reflect market value but were merely based on a formula which included the current interest rate plus an amortization factor is the underlying “Schedule of Direct Reduction Loan” attached to the leases which sets forth in typical loan arrangement form the interest rate, the amount of the principal loan, the term of years, the payment number and the apportionment of the quarterly payments between principal and interest. This schedule of payments is identical to the procedures utilized in conventional direct reduction mortgage loans which became popular in this country during the “Great Depression” of the 1930’s. Likewise, in their negotiations, the parties frequently referred to the payment of interest and principal, to “standby fees” and loan “commitment fees,” terms common in mortgage financing and not in the traditional relationships between lessor and lessee. In the letter dated September 21,1974, to Eastman Dillon, Sunray’s counsel also points out that in the twenty-sixth year of the proposed lease, “the unencumbered appraised value would probably exceed the original investment if present inflationary trends continue.” Notwithstanding his conception of the increased value in the land and his prophetic view of inflationary trends, the rentals payable in the twenty-sixth year and thereafter during the next sixty-four years of the thirteen extended terms do not increase but are sharply reduced. The quarter annual rents drop from $1015.38 to $375.00 for the first two extended terms and then drop again to $225.00 for the next eleven extended terms. Thus, Sunray having paid for the properties in full during the primary term, was entitled to remain in possession for the next sixty-five years at nominal rents. If it exercised all of its options for each of the extended terms, the additional cost therefor, as the Tax Court recognized, was merely to increase the Trust’s return from 4% percent per annum to 5'A percent. It is hardly conceivable that an owner of real estate— especially a large sophisticated trust — concerned with a fair rental on its land rather than a return of its loan and interest, would enter into a lease with sharply declining rentals for sixty-five years following the conclusion of the primary term on December 31, 1989. The extended term features of the lease further indicate to us that the Trust, as a lender, was only looking to a return at a fixed rate on its advances, and not to a reasonable return on the fair market value of property which it held as owner. D. THE OPTIONS TO REPURCHASE The repurchase provisions of a sale and leaseback agreement serve the same function as a mortgage loan when the repurchase price is geared to the unamortized principal advanced by the purchaser-lessor. See Frank Lyon Co., supra, 536 F.2d at 752-54. In the instant case, in addition to Sunray’s right to make rejectable offers to repurchase the parcels in certain situations by, in effect, paying off the unpaid principal balance of the Trust’s advance plus the applicable schedule “C” premium payment, Sunray has the absolute right to purchase leased parcels under section 9 of the leases during the first year of each of the thirteen extended terms. This right is subject to the same conditions stipulated in connection with the rejectable offers (1) that Sunray must discontinue the use of the premises “for its then business use” and (2) that the repurchase price be equal to the “fair appraised value of the leased premises to Lessor” as fixed by three appraisers. These provisions give Sunray considerable flexibility despite the requirement that it must discontinue “its then business use” of the property. Since most of the sites were unimproved non-income properties at the time of the lease arrangements, Sunray could improve the properties and resell them to investors whenever it deemed conditions appropriate in the future, as it previously had done on other occasions with similar properties, and such a sale would work a change in the “then business use.” Furthermore, nothing prevented Sunray from diversifying its operations and using the land for other income producing purposes. The Commissioner contends that the appraisal procedure prescribed for these nonrejectable options gives Sunray another avenue by which to enjoy appreciation and the “equity” built up through its “rental” payments. The contract provides that upon exercise of the option, the lessor and lessee will each appoint an appraiser and the two appraisers thus chosen will select a third. The appraisers are required by majority decision to fix “the fair appraisal value of the leased premises to the Lessor” and the appraisal fees and expenses are to be paid solely by the lessee. The Tax Court disagreed with the Commissioner’s analysis of this provision, reasoning: Respondent [Commissioner] maintains that the price established by this formula would be the appraised value of the property as encumbered by the Sunray leases — an amount equated by respondent with the present value of future rentals. Thus understood, the provision establishing the option price would preclude the Trust from enjoying appreciation in the value of the property subsequent to the conveyance by Sunray. In our opinion, however, the formula, based as it is upon an appraisal of the property, would secure to the Trust the benefit of such appreciation. We believe the Tax Court misconstrued the provisions when it read them as requiring the lessee to pay the fair market value for the property upon the exercise of the options. In the absence of a provision to the contrary, the appraisers had to consider all legal obligations encumbering the property in appraising its value and had to recognize the present value of any reversion in the land at the termination of the encumbrance. Plaza Hotel Ass’n v. Wellington Ass’n, 55 Misc.2d 483, 285 N.Y.S.2d 941 (Sup.Ct.), aff’d, 28 A.D.2d 1209, 285 N.Y.S.2d 267 (1967), aff’d, 22 N.Y.2d 846, 293 N.Y.S.2d 108, 239 N.E.2d 736 (1968). Counsel for Sunray recognized that the leases encumbered the properties and adversely affected their appraisal after the primary term. Thus, in assessing the “fair appraised value... to Lessor,” the appraisers would have to consider the encumbrances of the properties with leases of very low rentals, thereby seriously reducing the present value of future rentals. The Commissioner also contends that since the option price was equal to the present value of future rents payable under the lease the appraisers must recognize that the reversionary value of the property in the year 2055 is de minimis because of the high discount factor applicable to a sum due sixty-five years in the future. If the fair market value had doubled or quadrupled, Sunray would be able to acquire the property for a fraction of its original cost. Sun-ray argues, on the other hand, that the lease agreements are not totally clear, and that the Commissioner’s interpretation conflicts with the language of the lease, with the interpretation of his own expert, and with that of the trustees of the Trust. Sunray asserts that the Tax Court appropriately found that the option price was not merely equivalent to the present value of future rents but that it would secure to the Trust, upon appraisal, the benefit of any appreciation in value of the properties. Our review of this holding by the Tax Court is not limited to the clearly erroneous rule, as Sunray argues, since the interpretation of the option provisions is a question of law. We disagree with the Tax Court’s view of these provisions of the leases for the reasons previously expressed and hold that the “then appraised value” to the lessor is essentially equivalent to the present value of the future rents under the lease. Thus, the options to repurchase provide Sunray with a built in latch-string by which it could spring legal title to the properties whenever it served its convenience without obligating Sunray to pay the fair market value. Sunray could thereby acquire the benefits of appreciation in the property by merely paying the present value of future rents payable under the lease. Finally, Sunray contends that the Trust may, without notice to or consent of Sun-ray, assign or transfer to any party, for any purpose, at any time its rights under the lease, even for purposes of refinancing. It argues that the Trust’s ability to refinance its investment is a significant attribute of real estate ownership. This may be true as a general principle. In the instant case, however, the right to assign or refinance may be hollow since it is subject to the extraordinary low rentals during the lengthy extended terms of the leases. Furthermore, any significance attached to the right to refinance is eroded in the instant case by other significant attributes of ownership retained by the lessee. V. In conclusion, we recognize that sale-leaseback arrangements play a useful and accepted role in our economy. We also note that some of the provisions of the leases in the instant case when viewed independently do not brand the transaction as a financing arrangement. A number of other important features, however, “have been employed in the same transaction with the cumulative effect of depriving [the lessor] of any significant ownership interest.” Frank Lyon Company v. United States, supra, 536 F.2d at 754. As the lessee, Sunray bore the burdens, risks, and responsibilities for the properties, including the obligation to provide the Trust with a fixed guaranteed return under all circumstances and conditions. The lessee also controlled important benefits traditionally reserved to the owner of property: the lessee had the right to negotiate the settlement or accept the condemnation award and receive the payment; in the event of total or partial condemnation the lessee retained the right to terminate the lease whenever in its sole judgment a parcel of land was no longer profitable or necessary in its business and to make a “rejectable offer” which for all practical purposes was unrejectable; the lessee, in any event, enjoyed the right to substitute other land if perchance an offer was rejected or in substitution of a rejectable offer. These risks, burdens, and benefits are strong attributes of ownership, not of a leasehold interest. The leases also bear marked similarities to debt financing, particularly to direct reductions loans, including the structural and guaranteed interest rate, consistent with the going market interest rate for quality firms of Sunray’s credit standing, the prepayment penalties, the schedule of payments, and the rejectable offer procedures. The rents have no visible connection with the economic value of the property but are evidently related to a fixed interest return on the advances. Finally, the options to acquire the property at the end of the primary term at the value to the lessor is a form of “equity” because the value to lessor is really the present value of future payments for sixty-five years at a specified rate. We therefore conclude that the sale-leaseback transactions were a financing arrangement. Sunray’s claim under section 162(a)(3) for rental payments made pursuant to Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)? A. Trial (either jury or bench trial) B. Injunction or denial of injunction or stay of injunction C. Summary judgment or denial of summary judgment D. Guilty plea or denial of motion to withdraw plea E. Dismissal (include dismissal of petition for habeas corpus) F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict) G. Appeal of post settlement orders H. Not a final judgment: interlocutory appeal I. Not a final judgment: mandamus J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment K. Does not fit any of the above categories, but opinion mentions a "trial judge" L. Not applicable (e.g., decision below was by a federal administrative agency, tax court) Answer:
songer_respond2_1_2	D	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained". NATIONAL NUT CO. OF CALIFORNIA v. KELLING NUT CO. et al. No. 8204. Circuit Court of Appeals, Seventh Circuit. March 20, 1943. Rehearing Denied May 10, 1943. Arthur D. Welton, Jr., Frank J. Foley, Guy A. Gladson, and Bryce L. Hamilton, all of Chicago, Ill., for appellants. John J. McLaughlin, of Chicago, Ill., for appellee. Before MAJOR, KERNER, and MIN-TON, Circuit Judges. PER CURIAM. In a suit pending in the District Court of the United States for the Southern District of California, Central Division, Judge O’Connor issued an order on September 17, 1942, authorizing the plaintiff to take depositions under Rule 26 of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c. Sometime on or about October 9, 1942, the plaintiff filed a petition in the office of the Clerk of the District Court of the United States for the Northern District of Illinois, praying the court to authorize a subpoena duces tecum to .issue commanding Max J. Kelling, President, and Walter Halleman, Secretary of the defendant corporation, to appear and testify, and to produce and bring with them certain papers from the files of the defendant, The Kelling Nut Company, enumerating them. From what we can learn from the short record filed in this matter, a subpoena duces tecum was issued for the witnesses above mentioned, requiring them to produce and bring with them the documents enumerated. On December 14, the District Court for the Northern District of Illinois entered an order that the defendants deliver up for inspection of the plaintiff’s attorneys all documents produced in response to the subpoena duces tecum of December 11, 1942, directed to witnesses Kelling and Halleman ; that the defendants produce certain of their papers and files; and that defendants’ attorneys direct witnesses to submit to oral examination with respect thereto. Defendants moved to vacate this order and in the alternative to modify it in certain respects and to quash the subpoena in part. The court on January 5, 1943, modified the order in one respect, refused to further modify it, and overruled the motion to vacate. From the order of December 14, 1942, as modified by the order of January 5, 1943, the defendants gave notice of appeal to this Court. The defendants have filed a short record here, and now ask for an extension of time in which to file the complete record. The plaintiff has filed a motion to dismiss the appeal on the ground that the order of December 14, 1942, as modified, is not a “final decision” within the meaning of Section 128 of the Judicial Code, 28 U.S.C.A. § 225. If the order is not a final decision, we have no jurisdiction. Hatzenbuhler v. Talbot, 7 Cir., 132 F.2d 192. As this is a jurisdictional question, it is proper in raise it at any time. We are of the opinion that the order is not a “final decision” within the meaning of the statute. It involves only a ruling of the court in the proceedings of a trial. The proceedings in the District Court for the Northern District of Illinois were ancillary to and in aid of the main suit pending in California. The order in question was only a step in that proceeding. Nothing was decided finally that adjudicated the rights of the parties. We take it the deposition when concluded here or any part of it is subject to the action of the court in California, and if any error is committed, the defendants may yet be heard. It is perfectly clear that a refusal to issue a subpoena duces tecum or a refusal to quash one already issued is not an appealable decision. Cobbledick v. United States, 309 U.S. 323, 60 S.Ct. 540, 84 L.Ed. 783. Here the order in question was only in aid of the subpoena and for the purpose of making^ it effective. This does not divest the proceeding of its ancillary character and make it an independent proceeding. It remains as it was in the beginning, a mere step in the trial. It settled nothing except to remove the impediment to further procedure. Alexander v. United States, 201 U.S. 117, 26 S.Ct. 356, 50 L.Ed. 686; International Agricultural Corporation v. Pearce, 4 Cir., 113 F.2d 964; Goodyear Tire & Rubber Co., Inc., v. Jamaica Truck Tire Service Co., Inc., 7 Cir., 66 F.2d 91. The motion to dismiss is sustained, and the appeal is dismissed. Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business? A. local B. neither local nor national C. national or multi-national D. not ascertained Answer:
songer_usc1	0	What follows is an opinion from a United States Court of Appeals. Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title. REESE v. LOUISVILLE TRUST CO. No. 6138. Circuit Court of Appeals, Sixth Circuit. May 13, 1932. ■ R. Ruthenburg, of Louisville, Ky., for appellant. H. H. Nettelroth, of Louisville, Ky. (Robert G. Gordon, Squire R. Ogden, and Gordon, Laurent & Ogden, all of Louisville, Ky., on the brief), for appellee. Before HICKS, HICKENLOOPER, and SIMONS, Circuit Judges. PER CURIAM. The state eourt, having appointed a receiver for the Louisville Trust Company, terminated the receivership upon a plan of reorganization being carried into effeet. Appellant appeared in such proceeding and objected to the termination of the receivership. His objections were overruled and he appealed to the Court of Appeals of 'Kentucky, where the decree of the lower eourt was affirmed. Thereupon he instituted the present action in the District Court, suing in behalf of himself and all others similarly situated and claiming that the judgment of the Court of Appeals of Kentucky, affirming the decree of the circuit court of that state, deprived plaintiff of his property without due process of law in violation of the Fourteenth Amendment to the Constitution of the United States. No other ground of jurisdiction appearing, plaintiff’s appeal wa$ dismissed upon appropriate motion. We are not here concerned with the merits of plaintiff’s other contentions, viz., that he is entitled to restitution of certain trust funds alleged to have been illegally invested by the appellee and to the appointment of a receiver to effeet such restitution. No contention was made that the state courts did not have jurisdiction in originally appointing the receiver or in the conduct of such receivership, including its termination. The only contention is that in the exercise of such jurisdiction the state eourt erred in granting the relief sought by other parties to such action and in denying relief to appellant. Under such circumstances the District Court has no jurisdiction to entertain an action on appellant’s behalf in effect to set aside the judgments of the state courts whether such judgments involved the decision of constitutional questions or otherwise. Rooker et al. v. Fidelity Trust Co. et al., 263 U. S. 413, 44 S. Ct. 149, 68 L. Ed. 362. Affirmed. Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number. Answer:
songer_state	33	What follows is an opinion from a United States Court of Appeals. Your task is to identify the state or territory in which the case was first heard. If the case began in the federal district court, consider the state of that district court. If it is a habeas corpus case, consider the state of the state court that first heard the case. If the case originated in a federal administrative agency, answer "not applicable". Answer with the name of the state, or one of the following territories: District of Columbia, Puerto Rico, Virgin Islands, Panama Canal Zone, or "not applicable" or "not determined". LAMB’S CHAPEL and John Steigerwald, Plaintiffs-Appellants, v. CENTER MORICHES UNION FREE SCHOOL DISTRICT and Louise Tramontano, in her official capacity as president of the Board of Education for Center Moriches Schools, Defendants-Appellees, New York State Attorney General’s Office, Intervenor. No. 470, Docket 91-7718. United States Court of Appeals, Second Circuit. Argued Nov. 4, 1991. Decided March 18, 1992. Mark N. Troobnick, Washington, D.C. (Jordan W. Lorence, Concerned Women for America Legal Foundation, Jay A. Seku-low, Walter M. Weber, Free Speech Advocates, of counsel), for plaintiffs-appellants. Harold G. Trabold, Patchogue, N.Y. (Dranitzke, Lechtrecker & Trabold, Pat-chogue, N.Y., August H. Englert, Fiedel-man & Hoefling, Jericho, N.Y., of counsel) for defendants-appellees Center Moriches Union Free School Dist. and Louise Tra-montano. Jeffrey I. Slonim, Asst. Atty. Gen., New York City (Robert Abrams, Atty. Gen., Lawrence S. Kahn, Deputy Sol. Gen., Atty. Gem’s Office, State of N.Y., of counsel), for intervenor New York State Atty. Gen. Jay Worona, Albany, N.Y. (Cynthia P. Fletcher, New York State School Boards Ass’n, Inc., of counsel) for amicus curiae New York State School Boards Ass’n, Inc. Before CARDAMONE, PIERCE and MINER, Circuit Judges. MINER, Circuit Judge: Plaintiffs-appellants Lamb’s Chapel and John Steigerwald appeal from a summary judgment entered in the United States District Court for the Eastern District of New York (Wexler, J.) in favor of defendants-appellees Center Moriches Union Free School District and Louise Tramontano, as President of the Board of Education of the School District. Lamb’s Chapel is an Evangelical Christian church, incorporated under the New York not-for-profit corporation law, located at Center Moriches, Suffolk County, New York. John Steigerwald is the Pastor of Lamb’s Chapel. The School District is a subdivision of the State of New York duly organized to provide public education in Suffolk County. This action was brought to secure declaratory and injunctive relief as redress for the refusal of the School District to allow the use of School District facilities, during non-school hours, for the showing of a series of religious films. The School District relied on a New York statute as well as a local rule in denying use of the facilities. In granting summary judgment, the district court determined that the School District’s facilities were “limited public forums,” which had not been opened to religious groups by policy or practice. Accordingly, the court concluded that the facilities properly were barred to the plaintiffs in accordance with the New York Education Law and the School District’s own Local Rules. On appeal, appellants contend that the School District, having created public forums by policy and practice, has excluded speech from the forum on the basis of content. This, they urge, is violative of the First Amendment. Appellants also contend that the denial to them of equal access to the School District’s facilities, based on the religious content of their speech, is a violation of the Establishment Clause. Finally, they contend that a prior decision of this Court upholding the New York statute that allows the exclusion of religious groups from school district facilities in the absence of a practice of opening the facilities to other religious organizations is erroneous and should not be followed. Finding no merit in any of these contentions, we affirm the judgment of the district court. BACKGROUND By application dated November 19, 1988, Pastor Steigerwald sought the use of rooms in the Center Moriches High School for Lamb’s Chapel Sunday morning services and for Sunday School. The hours specified were 9:00 A.M. to 1:00 P.M., and the time period indicated was one year, beginning in December of 1988. The application was made on a form provided by the School District and entitled “Application For Use of School District Facilities.” Attached to the application form was a sheet entitled “Rules and Regulations for Community Use of School Facilities.” Rule No. 7 was set out as follows: “The school premises shall not be used by any group for religious purposes.” Above his signature on the application form, Pastor Steigerwald indicated that he had read the Rules and Regulations and agreed to comply fully with them “excluding #7.” Accompanying the application, and dated November 21, 1988, was a letter to Alice Schoener, School District Clerk, from the Pastor. In the letter, Pastor Steigerwald introduced himself and his Church and noted that their “paramount objective [was] to share the love of Christ in very real and practical ways.” He also indicated that he had taken a tour of the Center Moriches High School to “see if the school had adequate facilities for a movie series on the family that will be free of charge and open for the community to attend.” Pastor Steigerwald stated in his letter that he had met with the high school principal, who was concerned that the content of the film be nonsectarian in view of the constitutional requirement for the “separation of church and state.” The letter continued: “Those who espouse such a ... view are seriously misinformed. Enclosed you will find several articles that correctly interpret the law that is presently being upheld by the Supreme Court of the United States of America.” By letter dated November 23, 1988 on behalf of the School District, Ms. Schoener advised Pastor Steigerwald that the application “requesting the use of the high school for your Sunday services” was denied, citing Local Rule No. 7 as well as the State Education law. Referring to scheduling problems, Ms. Schoener further advised that she was “very much afraid that, even without the prohibited religious activity aspect, your request would have to be denied.” Undeterred, Pastor Steigerwald pressed forward on December 16, 1988 with another application for use of the high school facilities, the second application being limited to one evening per week for five weeks. The hours designated were 7:00 P.M. to 10:00 P.M. and the activity specified was “Family emphasis & Movie presentation by Dr. James Dobson.” The purpose set forth was “To open up the film to share some pracital [sic] insights about the family.” The facilities requested were the auditorium or gymnasium. In response to the second application Ms. Schoener wrote to Pastor Steigerwald on January 18, 1989 to request “a more detailed description of your proposed use (including a brochure describing the film),” noting that she was “hard pressed to determine from your description, what the five-part movie would represent” but “suspected] that it would certainly have religious connotations.” In the letter requesting additional information, Ms. Schoener observed that “[t]he district has not, in the past, allowed the high school auditorium to be used by any group primarily for its own purposes.” A brochure describing the film, “Turn Your Heart Toward Home,” was forwarded by Pastor Steigerwald to Ms. Schoener on February 2, 1989. According to the brochure, the film comes in a 6-part series “every parent should see.” In the film, Dr. James Dobson, said to be an expert on family life, “reminds parents of society’s slide toward humanism — the undermining influences of radio, television, films and the press — which can only be counterbalanced by a loving home where Christian values are instilled from an early age.” In her response dated February 8, 1989, Ms. Schoener advised Pastor Steigerwald as follows: “This film does appear to be church related and therefore your request must be refused.” Additionally, Ms. Schoener denied a request made by Pastor Steigerwald on February 2,1989, for use of the elementary or high school on Friday or Saturday evenings “for ‘non-religious purposes’ such as volley ball.” The reason given was: “We do not schedule outside organizations to use the facilities on Fridays and Saturdays.” Pastor Steigerwald continued to press his petition. On October 11, 1989, he submitted yet another application for the use of Center Moriches School District facilities to show the same film series, described in this application as a “Family oriented movie from a Christian perspective.” The stated purpose of Lamb’s Chapel was “To invite community of Center Moriches to view this very practical movie for family raising.” Once again, the use of an auditorium for five week days over a five-week period was sought. This last application met with a terse response by Ms. Schoener: “This film does appear to be church related and therefore your request must be refused.” The complaint in this action was filed on February 9, 1990 and includes four causes of action: violation of the Freedom of Speech and Assembly Clauses; violation of the Equal Protection Clause; violation of the Free Exercise Clause; and violation of the Establishment Clause. As to each cause, the plaintiffs allege that the defendants’ actions were taken under color of state law and in violation of the Civil Rights Act of 1866, 42 U.S.C. § 1983. The injunctive relief sought was an order permitting plaintiffs the use of the auditorium of the high school or elementary school to show the film series and to allow religious groups use of the facilities without discrimination because of the religious content of their speech. Also sought was a judgment declaratory of plaintiffs’ rights to use the facilities in question in accordance with constitutional protections guaranteed by the First and Fourteenth Amendments, including the Free Speech, Freedom of Assembly, Free Exercise, Establishment and Equal Protection Clauses of the Constitution. Plaintiffs also sought a declaration of the unconstitutionality of section 414 of the New York Education Law to the extent it bars the use of school district facilities for purposes of religious speech. Plaintiffs’ motion for a preliminary injunction to compel the School District to allow the use of the District’s facilities was denied by the district court in a Memorandum and Order dated May 16, 1990. The court reviewed the facts presented on the motion as well as the applicable legal and constitutional principles and concluded that plaintiffs had “not shown either a substantial likelihood of success on the merits or sufficiently serious questions going to the merits.” Lamb’s Chapel v. Center Moriches Union Free School Dist., 736 F.Supp. 1247, 1254 (E.D.N.Y.1990). An appeal to this Court from the Order denying the preliminary injunction was withdrawn, and the matter was returned to the district court for further proceedings. Thereafter, the plaintiffs moved for summary judgment and the School District cross-moved for the same relief. After hearing testimony as well as considering exhibits and affidavits, the district court granted the School District’s motion and denied the plaintiffs’ motion in a Memorandum and Order dated July 15, 1991, giving rise to this appeal. In granting summary judgment, the district court found “that if the intended use of school facilities is not required or authorized by statute, there is no constitutional right to such use where a school district has not, by policy or practice, permitted a similar use in the past.” Lamb’s Chapel v. Center Moriches Union Free School Dist., 770 F.Supp. 91, 98 (E.D.N.Y.1991). Although it determined that the Center Mo-riches School District facilities are limited public forums, the court concluded that the “District ha[d] not, by policy or practice, opened its doors to groups akin to Lamb’s Chapel,” and therefore held “that the School District’s denial of plaintiffs’ applications to show the film series [was] viewpoint-neutral and, hence, constitutional.” Id. at 99. We agree with the conclusion reached by the district court. DISCUSSION According to the Supreme Court, the extent of permissible governmental regulation of expressive activity on publicly owned property is dependent upon the character of the public property in question. See Perry Education Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 44, 103 S.Ct. 948, 954, 74 L.Ed.2d 794 (1983). The Court has identified three categories of publicly owned property and has defined what regulatory power, consistent with the First Amendment, may be exercised in each category. See Cornelius v. NAACP Legal Defense and Educational Fund, Inc., 473 U.S. 788, 802, 105 S.Ct. 3439, 3448, 87 L.Ed.2d 567 (1985). The power of the State to regulate expression is most limited in regard to the category of public property designated “traditional public forum.” Streets, parks and similar locales, said to “have immemorially been held in trust for the use of the public and [which], time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions,” Hague v. CIO, 307 U.S. 496, 515, 59 S.Ct. 954, 964, 83 L.Ed. 1423 (1939), fall within this classification. In such a forum, a regulation providing a content-based exclusion may be enforced only when “necessary to serve a compelling state interest” and must be “narrowly drawn” to serve that purpose. Perry, 460 U.S. at 45, 103 S.Ct. at 955. Also, narrowly tailored, content-neutral regulations pertaining to the time, place and manner of expression in a traditional public forum may be enforced, if they “serve a significant government interest, and leave open ample alternative channels of communication.” Id. See Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 2753, 105 L.Ed.2d 661 (1989). The second category of public property pertinent to this analysis is made up of property purposefully opened for use by the public for expressive activity. Although government is not required to open this sort of forum or to keep it open indefinitely, the regulation of expression in a locale encompassed within the second category must meet the same standards as are applicable to a traditional public forum. Perry, 460 U.S. at 46, 103 S.Ct. at 955. Places opened specifically for the use of certain speakers or for the discussion of certain subjects are referred to as “limited” or “designated” fora. See Longo v. U.S. Postal Service, 953 F.2d 790, 793-94 (2d Cir.1992); Travis v. Owego-Apalachin School Dist., 927 F.2d 688, 692 (2d Cir.1991). As to these fora, “the first amendment protections provided to traditional public forums only apply to entities of a character similar to those the government admits to the forum.” Calash v. City of Bridgeport, 788 F.2d 80, 82 (2d Cir.1986). Least restricted is the power of government to regulate expression in the third category of public property — the nonpublic forum. Included in this category is property that is not open for communicative purposes either by tradition or designation. Perry, 460 U.S. at 46, 103 S.Ct. at 955. With respect to such property, where governmental control is analogous to that of a private owner, see United States Postal Service v. Council of Greenburgh, 453 U.S. 114, 129-30, 101 S.Ct. 2676, 2685, 69 L.Ed.2d 517 (1981), a reasonableness standard prevails, see International Soc’y For Krishna Consciousness v. Lee, 925 F.2d 576, 580 (2d Cir.1991), cert. granted, — U.S. -, 112 S.Ct. 855, 116 L.Ed.2d 764 (1992). The standard is met when the applicable restrictions “reflect a legitimate government concern and do not suppress expression merely because public officials oppose the speaker’s view.” See Paulsen v. County of Nassau, 925 F.2d 65, 69 (2d Cir.1991). The Center Moriches School District facilities appellants sought to use do not fall within the categories of “traditional public forum” or “non-public forum,” and appellants do not contend that they do. What appellants do contend is that the school authorities in the Center Moriches School District by policy and practice have opened the facilities for the use of the general public and that the exclusion of religious speech is prohibited under the standards governing the second category. See Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260, 267, 108 S.Ct. 562, 567, 98 L.Ed.2d 592 (1988). An examination of pertinent policy and actual practices, however, convinces us that the school property in question falls within the subcategory of “limited public forum,” the classification that allows it to remain non-public except as to specified uses. See Deeper Life Christian Fellowship v. Board of Educ., 852 F.2d 676, 679 (2d Cir.1988) (Deeper Life I). In the matter of School District policy, the District is governed by section 414 of the New York Education Law and its own Local Rule No. 7. Section 414 sets out ten purposes for which the use of schoolhouse facilities may be granted throughout the State of New York: instruction; public library purposes; social, civic and recreational meetings; events for which admission fees are charged, if the fees are to be applied to educational and charitable (but not religious) purposes; elections and political meetings; civic forums and community centers; classes for mentally retarded minors; recreation and athletics; child care services during non-school hours; and graduation exercisés held by not-for-profit elementary and secondary schools, provided no religious service is performed. N.Y.Educ.Law § 414[l](a)-(j) (McKinney 1988 & Supp.1992). Religious uses are nowhere permitted in this enumeration. All the uses specified are subject to such regulations as may be adopted by boards of education in the various school districts of the state, but the regulations must not conflict with the state law. See id. As previously noted, the Board of Education of the Center Moriches Union Free School District has provided in its Local Rule No. 7 that “[t]he school premises shall not be used by any group for religious purposes.” In Deeper Life I we adopted a state court interpretation of section 414 that the use of New York school facilities is confined to nonreligious purposes, see Trietley v. Board of Educ., 65 A.D.2d 1, 5-6, 409 N.Y.S.2d 912, 915 (4th Dep’t 1978), and thereby ascertained the state’s intent to create a limited public forum from which religious uses would be excluded. See Deeper Life I, 852 F.2d at 680. We determined in that case that under the statute and applicable New York City Board of Education regulations, the School Board had no discretion with respect to the granting of use permits to religious groups. See Deeper Life Christian Fellowship v. Sobol, 948 F.2d 79, 83 (2d Cir.1991) (Deeper Life II). Appellants argue, in effect, that once the school district facilities are opened as a public forum for one purpose, they are opened for all purposes. They take issue with our view that “property remains a nonpublic forum as to all unspecified uses ..., and exclusion of uses — even if based upon subject matter or the speaker’s identity — need only be reasonable and viewpoint-neutral to pass constitutional muster,” Deeper Life I, 852 F.2d at 679-80 (citations omitted), and contend that our view does not represent a proper interpretation of Supreme Court precedent. That challenge is barred by the rule of stare decisis, not only as a consequence of the Deeper Life cases but also as a consequence of our decision in Travis, where we held that “in a limited public forum, government is free to impose a blanket exclusion on certain types of speech, but once it allows expressive activities of a certain genre, it may not selectively deny access for other activities of that genre.” 927 F.2d at 692. In Travis, the school district was constrained to open its facilities to a religiously-oriented, fund-raising entertainment event benefitting a pregnancy counselling organization affiliated with an organization that promoted Christian gospel evangelism, having previously opened the facilities to a religious Christmas program involving the collection of toys for needy children. “The Christmas program .., created at least a limited public forum for fund-raisers with religious themes.” Id. at 693. In Deeper Ufe I, we sustained a preliminary injunction in a case in which a church sought the temporary use of an elementary school building, finding as a fair ground for litigation that “the School Board ha[d] opened this forum to [the church] through a practice of granting permits to use public school facilities to other religious organizations.” 852 F.2d at 680. Whether Center Moriches has opened its facilities to religious uses and purposes presents a close question here. On appeal, appellants principally rely upon three prior uses of school district facilities to demonstrate a prior practice of opening Center Moriches public schools to outside of school religious uses: a Salvation Army Band Benefit Concert; a Gospel Music Concert; and a lecture series entitled “Psychology and the Unknown,” given by Jerry Huck. The Band Benefit Concert involved performances by the Center Mo-riches High School Band as well as the Salvation Army Greater New York Youth Band. The money raised at this concert was used to provide a scholarship for a high school band member and to provide funds for children to go to summer camp. The only religious connotations found in the Joint Band Program were the invocation, the performance of a piece called “Jericho Revisited” and the finale, “God Bless America.” Although appellants adduced evidence that “the Salvation Army is a church or a quasi-church,” the Joint Band Program hardly can be described as any kind of a religious use of school district property. The theme of the Program was not religious and any reference to religion was incidental at best. The Gospel Music Concert was performed by a group called the “Southern Harmonizers Gospel Singers.” The purpose of the program was to raise money for the school’s black student scholarship fund. The program consisted in the main of gospel and spiritual music. The business manager of the Singers defined gospel music as “the good news of God.” Included in the program were such well-known religious songs as “Amazing Grace!” and “The Lord is my Shepherd” from the Twenty-Third Psalm of the Old Testament. The business manager responded in the affirmative when asked if the concert could be enjoyed for the music itself. Obviously, this is so. Much of the world’s greatest music has some religious connotation but can be enjoyed by people of all religious beliefs as well as people of no religious beliefs. The performance by the Southern Harmonizers was not a religious service or event but a musical and cultural one. It took place in a non-religious context and had a non-religious purpose. The lecture series, “Psychology and The Unknown,” by Jerry Huck, was sponsored by the Center Moriches Free Public Library. The library’s newsletter characterized Mr. Huck as a psychotherapist who would discuss such topics as parapsychology, transpersonal psychology, physics and metaphysics in his 4-night series of lectures. Mr. Huck testified that he lectured principally on parapsychology, which he defined by “reference to the human unconscious, the mind, the unconscious emotional system or the body system.” When asked whether his lecture involved matters of both a spiritual and a scientific nature, Mr. Huck responded: “It was all science. Anything I speak on based on parapsychology, analytic, quantum physicists [sic].” Although some incidental reference to religious matters apparently was made in the lectures, Mr. Huck himself characterized such matters as “a fascinating sideline” and “not the purpose of the [lecture].” As is apparent from the foregoing, none of the prior uses pointed to by the appellants were for religious purposes. Nor are we able to discern any previous uses of any school district property for religious purposes upon an examination of the record. Incidental references to religion or religious figures, the occasional use of religious terms, and the performance of music with religious overtones do not convert a secular program into a religious one. The programs cited as examples did not carry out religious themes nor were they presented in a religious context. We simply have not been able to identify any prior use of Center Moriches School District facilities for purposes that are religious in any meaningful way. We therefore conclude that the facilities were limited forums not opened to religious uses by policy or practice and that there was no constitutional violation in the failure of the School District to afford access to appellants. Widmar v. Vincent, 454 U.S. 263, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981) and Board of Educ. of the Westside Community Schs. v. Mergens, 496 U.S. 226, 110 S.Ct. 2356, 110 L.Ed.2d 191 (1990), relied upon appellants, do not dictate a contrary result. In Widmar, the Court held that a state university could not deny access to university facilities to students who wished to conduct religious meetings on campus. Widmar, 454 U.S. at 273, 102 S.Ct. at 276. The Court found in that case that “[t]hrough its policy of accommodating their meetings, the University has created a forum generally open for use by student groups,” noting that “the campus of a public university, at least for its students, possesses many of the characteristics of a public forum.” Id. at 267 & n. 5, 102 S.Ct. at 273 & n. 5. In Mergens, the Court held that the Equal Access Act, 20 U.S.C. § 4071(b) prohibited a high school from “discriminating, based on the content of the students’ speech, against students who wish to meet on school premises during noninstructional time.” 496 U.S. at 247, 110 S.Ct. at 2370. The high school had created a limited open forum- by allowing noncurriculum-related student groups to use the school facilities. The denial of a request to form a Christian club, under the circumstances revealed, constituted a denial of equal access under- the Equal Access Act. Although appellants contend that our Deeper Life opinions are incompatible with these Supreme Court decisions and that the decisions compel a reversal of the district court in the case at bar, the contention is baseless. Widmar involved the use of university property by student groups in a situation where a number of such groups had been afforded access, to the point where, as to the students, a “generally open forum” was created. 454 U.S. at 267, 102 S.Ct. at 273. Similarly, in Mergens, the religious use of school property was sought by students, who have a greater claim on the use of school property than outsiders, especially when the property generally is open to student groups. The Supreme Court decided Mergens purely on statutory grounds, noting that it did not need to decide whether the First Amendment requires the same result. In the Deeper Life cases, as in the case at bar, we are presented with outside organizations seeking access where access has been limited and all religious use has been barred by policy and practice. The appellants argue that denial of access somehow violated the Establishment Clause of the First Amendment as well as the Freedom of Speech Clause. It is difficult to see how this is so. If anything, a claim of a violation of the Free Exercise Clause would be expected. Nevertheless, there is no basis for any claim of First Amendment violation here. We have considered all of the arguments advanced by the appellants and find them meritless. CONCLUSION The judgment of the district court is affirmed in all respects. 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_state	56	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". Jhonny A. HUAMAN-CORNELIO, Petitioner, v. BOARD OF IMMIGRATION APPEALS, Respondent. No. 92-1201. United States Court of Appeals, Fourth Circuit. Argued Oct. 2, 1992. Decided Nov. 19, 1992. Rex B. Wingerter, Washington, D.C., for petitioner. Norah Ascoli Schwarz, U.S. Dept, of Justice, Washington, D.C., (Stuart M. Gerson, Atty. Gen., David J. Kline, Asst. Director, Office of Immigration Litigation, Charles E. Hamilton, III, Office of Immigration Litigation, Civil Div., U.S. Dept, of Justice, Washington, D.C., on brief), for respondent. Before WILKINSON, NIEMEYER, and LUTTIG, Circuit Judges. OPINION WILKINSON, Circuit Judge: Petitioner in this case contests the denial of his application for asylum by the Board of Immigration Appeals (“BIA”). The immigration judge (“U”) had ruled in petitioner’s favor on the asylum claim, and petitioner contends chiefly that subsequent panels of review must'pay that initial ruling substantial deference. We think, however, that petitioner would accord more weight to the IJ’s finding than the law compels or even allows. Applying the proper standard of review to petitioner’s claims, we affirm the BIA’s decision that he was statutorily ineligible for asylum. I. Petitioner Jhonny Huaman-Cornelio (“Huaman”) is a citizen of Peru. In 1987, Border Patrol agents twice caught him entering the United States illegally from Mexico. The first time, Huaman convinced the agents he was Mexican, and they allowed him to return to Mexico. The second time, he filed a request for asylum and withholding of deportation. While in Peru, petitioner was an engineering student and a member of an underground political opposition party, the Movi-miento Revolucionario Tupac Amaru (“MRTA”), from 1983 to 1987. According to Huaman, MRTA functioned primarily as a nonviolent, propaganda-spreading organization during the early years of his involvement. ' MRTA did, however, extort money, food, and goods from stores and factories for. distribution to the poor. It also organized strikes and demonstrations. From 1983 to 1985, petitioner gained influence in MRTA. He became privy to confidential MRTA membership lists and secret meeting places around Péru’s National University of Engineering (the “University”). As an MRTA leader, Huaman received false identification papers that made it more difficult to link him with MRTA. In 1984, Peruvian police arrested him at a demonstration, but later released him. While in custody, Huaman showed the authorities only his false identification papers, and the government did not discover his true identity or his connection with MRTA. In 1985 and early 1986, MRTA came under the influence of Shining Path, a Maoist, terrorist group well-known for its violent tendencies. As MRTA’s tactics turned toward bombing buildings and killing people, Huaman claimed his personal ideology would not let him participate in violence that destroyed the people he sought to help. Although afraid to abandon the Shining Path organization outright, he claimed that he moved gradually to the periphery of the organization and refrained from participating in violent acts. As part of a series of crackdowns against Shining Path, Peruvian police surrounded the University in September of 1986. Authorities arrested several MRTA leaders, exposed secret meeting places, and confiscated hidden propaganda and explosives. Huaman avoided arrest. In the aftermath of the raid, the remaining MRTA leadership began to suspect the presence of a traitor, someone who was privy to names of leaders and locations of secret meeting and hiding places. Huaman was questioned about being the traitor, but he denied the charge. After this denial, petitioner remained on the fringes of the organization. He believed, however, that some MRTA members continued to suspect him as a traitor because he had not enthusiastically embraced the tactics of Shining. Path. For about two months, Huaman felt he was picked on, and he got into a series of fistfights with MRTA members. In late 1986 or early 1987, he left the University. In February of 1987, Peruvian authorities again raided the University as part of a larger operation against Shining Path. Petitioner thought he might again be suspected of being a traitorous informer, so he left Peru three days after the February raid. He exited the country with a passport issued to him in his correct name by the Peruvian government just five months before his departure. Less than a month later, Huaman made his illegal entries into the United States. Petitioner had a hearing before an immigration judge in early 1988. The IJ considered Huaman’s testimony at the hearing to be credible. The IJ concluded that “a reasonable person in [Huaman’s] circumstances would fear persecution from the MRTA,” as well as “persecution by the authorities in Peru,” and therefore found the petitioner eligible for asylum. The IJ also concluded that Huaman had met the higher standard for withholding of deportation because it was “more likely than not that [he] would be persecuted by MRTA for his political opposition to that organization,” but that Huaman had not met the higher standard of proving a probability of persecution by the Peruvian government. The Immigration & Naturalization Service appealed to the- BIA, and the BIA reversed the IJ. The BIA concluded that Huaman had not established a basis for a well-founded fear of persecution by either MRTA or the Peruvian government because he had not presented evidence that MRTA leadership actually believed him to be a traitor or that the Peruvian government was even aware of his affiliation with MRTA. The BIA also held that, having failed to meet the burden for asylum, petitioner necessarily could not meet the higher burden for withholding of deportation. Huaman now appeals the BIA’s decision. II. Huaman’s first set of arguments relates to the appropriate standard of review for appeals of deportation orders. First, Huaman argues that the BIA erred in reviewing the decision of the immigration judge de novo, when it was required to defer to the IJ’s findings unless those findings were not supported by substantial evidence. Second, Huaman urges that, when confronted with contrary findings by the BIA and IJ on asylum eligibility, this court should defer to the IJ as the first-instance factfinder. We reject both arguments because they misconstrue the BIA’s, and our own, role in deportation proceedings. Huaman argues that the BIA should not review IJ asylum decisions de novo because the IJ is in the best position to assess the witness credibility which lies at the heart of all applications for asylum. This argument, however, ignores the specific administrative procedure established for asylum cases. The procedure calls for the BIA to review IJ decisions on appeal, and it does not limit the scope of this review in any way. See 8 C.F.R. §§ 3.1(b)(2), 208.18(c), and 242.21. The BIA, not the IJ, wields ultimate authority over asylum decisions, subject only to the specific intervention of the Attorney General. 8 C.F.R. § 3.1(h). The BIA clearly has the power to' review an IJ’s findings de novo, to make its own findings even as to matters of credibility, and to assess the legal sufficiency of the evidence. Ghassan v. INS, 972 F.2d 631, 635 (5th Cir.1992); Martinez v. INS, 970 F.2d 973, 974 (1st Cir.1992); Charlesworth v. INS, 966 F.2d 1323, 1325 (9th Cir.1992); Damaize-Job v. INS, 787 F.2d 1332, 1338 (9th Cir.1986). Of course, there may be good reasons in a given case for the BIA to credit the IJ’s determinations, but there is no requirement that it do so. This case demonstrates why the BIA should have de novo review authority in asylum cases. Determinations of whether an individual has a “well-founded fear of persecution” involve not only a subjective inquiry into what fear the individual feels but also an objective assessment of the specific facts on which that fear is based. In this case, Huaman’s personal testimony obviously persuaded the IJ of Huaman’s feeling of fear. What petitioner’s case lacked, however, was real proof of any objective facts. Appropriate de novo review by a body like the BIA serves to assure that the statutory requirement that any fear of persecution be “well founded” will be rigorously applied. Huaman next urges this court to take heightened notice of the IJ’s ruling on the asylum issue and defer to the IJ when the decisions of the IJ and the BIA conflict. This argument ignores what we believe to be the appropriate standard of judicial review in deportation proceedings. As a court of appeals, we review only the findings and order of the BIA, not those of the IJ. Section 106(a) of the Immigration and Nationality Act vests us only with the jurisdiction to review “final orders of deportation.’’ 8 U.S.C. § 1105a(a).' Final orders are entered only after all administrative remedies have been exhausted; thus final orders in deportation proceedings come from the BIA, the highest administrative tribunal. Other circuits have reached the same conclusion. See, e.g., Elnager v. INS, 930 F.2d 784, 787 (9th Cir.1991); Castillo-Rodriguez v. INS, 929 F.2d 181, 183 (5th Cir.1991). Further, the scope of our review of BIA decisions is narrow, not broad. The Supreme Court has stated that we must uphold the BIA’s decision if it is supported by substantial evidence from the record as a whole. INS v. Elias-Zacarias, —— U.S. -, -, 112 S.Ct. 812, 815, 117 L.Ed.2d 38 (1992). In other words, we can reverse the BIA only if the evidence presented by the petitioner “was so compelling that no reasonable .factfinder could fail to find the requisite fear of persecution.” Id., — U.S. at -, 112 S.Ct. at 817. This narrow standard of review recognizes the respect we must accord both the BIA’s expertise in immigration matters and its status as the Attorney General’s designee in deportation decisions. See 8 C.F.R. § 3.1(d)(1). We decline to vary the standard of review for the not uncommon situation of this case— when the BIA decides to overturn an IJ’s ruling. III. We move next to Huaman’s substantive claims. Petitioner argues that the BIA applied the wrong standard for determining asylum eligibility, and that he met the correct standard. We reject both contentions. The BIA applied the correct standard for determining asylum eligibility, and substantial evidence supports the BIA’s denial of eligibility for Huaman. To be eligible for asylum, an alien must meet the definition of “refugee” under the Refugee Act of 1980 (the “Act”). Under the Act, a refugee is any person who is unable to return to his or her country because of “persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion....” 8 U.S.C. § 1101(a)(42)(A). The standard for proving a “well-founded fear of persecution” is the “reasonable person test.” M.A. v. INS, 899 F.2d 304, 311 (4th Cir.1990) (en banc). An individual seeking asylum under this standard must show (1) that a reasonable person in the circumstances would fear persecution; and (2) that the fear has “some basis in the reality of the circumstances” and is validated with “specific, concrete facts.” Id. (citations omitted). As mentioned above, this test has both subjective and objective elements — a subjective inquiry into what the applicant for asylum fears and an objective finding of facts on which to base that fear. Additionally, petitioner has to show that his fear of persecution stems directly from one of the five categories of persecution listed in the Act. Even aliens with a “well-founded fear” of persecution supported by concrete facts are not eligible for asylum if those facts indicate only that the alien fears retribution over purely personal matters or general conditions of upheaval and unrest. See Matter of Maldonado-Cruz, 19 I. & N.Dec. 509, 512 (BIA 1988), rev’d on other grounds, 883 F.2d 788 (9th Cir.1989). In petitioner’s case, the BIA properly applied the above standards. Here petitioner relies too much on his own subjective fear. Huaman’s testimony focuses on what MRTA might possibly do to him five years after he emphatically denied being a traitor, and what the Peruvian government might possibly do because of some alleged connection with Shining Path. Such hypotheses may give rise to fear on petitioner's part. They do not, however, establish asylum eligibility under the Act, absent some concrete facts that MRTA leadership actually believes Huaman is a traitor or that Peruvian authorities might actually move to persecute him. As to the claim of persecution by the Peruvian government, there is no indication, much less concrete proof, that Peruvian authorities are concerned about any past associations between Huaman and MRTA. In fact, it is not even clear that Peruvian security much cares who petitioner is. If the Peruvian government had suspected Huaman to be a revolutionary terrorist, it would neither have issued him a passport five months before he left the country, nor allowed him to leave the country only three days after a massive crackdown against Shining Path. This evidence supports a finding that the petitioner has not shown a well-founded fear of persecution by his government. As to the claim of persecution by MRTA and Shining Path, the record also indicates that Huaman did not meet his burden of proof. Petitioner offers nothing beyond his own barebones statement that MRTA considers him a traitor to their cause in 1992. He gives no concrete facts as to how his situation in Peru in 1992 would be any different than it was from 1986 to early 1987. In that period, Huaman denied being the traitor, remained on the periphery of the MRTA organization, and was not persecuted politically by MRTA leadership. During that period, Huaman does claim to have been picked on and to have gotten into fights with MRTA members. Frequently, petitioner would fight with more than one of his former colleagues at a time and he would be beaten up. These episodes, however, are not proof of the kind of intentional persecution required by the Act. Petitioner offers no indication that MRTA leadership directed the beatings, much less that the beatings were to persecute him for one of the five listed reasons. Absent more specific facts of intentional persecution in the record, the beatings could credibly be viewed by BIA as random fistfights into which Huaman was goaded because of personal animosities or policy disputes with some rank-and-file MRTA members. Violence of this sort is an all too common byproduct of civil unrest. Such violence, however, is not specific persecution, and every possible victim of random misfortune is not a refugee as defined by the Act. The statute speaks of a well-founded fear of persecution for specific reasons. It does not extend eligibility for asylum to anyone who fears the general danger that inevitably accompanies political ferment and factional strife. IV. Petitioner is likewise ineligible for withholding of deportation. To qualify for withholding of deportation under § 243(h) of the Immigration and Nationality Act, an alien must prove a probability of persecution, a more stringent standard than a well-founded fear of persecution. 8 U.S.C. § 1253(h); see also INS v. Cardoza-Fonseca, 480 U.S. 421, 443-48, 107 S.Ct. 1207, 1219-21, 94 L.Ed.2d 434 (1987). The BIA’s determination that petitioner did not meet the asylum standard necessarily means that petitioner did not meet his burden on the more difficult withholding of deportation claim. See Castillo-Rodriguez, 929 F.2d at 185; see also Quintanilla-Ticas v. INS, 783 F.2d 955, 956-57 (9th Cir.1986) (holding that the BIA need not assess evidence twice for the two standards). For the foregoing reasons, the petition for review is hereby dismissed, and the judgment of the Board of Immigration Appeals is AFFIRMED. Question: In what state or territory was the case first heard? 01. not 02. Alabama 03. Alaska 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. Florida 11. Georgia 12. Hawaii 13. Idaho 14. Illinois 15. Indiana 16. Iowa 17. Kansas 18. Kentucky 19. Louisiana 20. Maine 21. Maryland 22. Massachussets 23. Michigan 24. Minnesota 25. Mississippi 26. Missouri 27. Montana 28. Nebraska 29. Nevada 30. New 31. New 32. New 33. New 34. North 35. North 36. Ohio 37. Oklahoma 38. Oregon 39. Pennsylvania 40. Rhode 41. South 42. South 43. Tennessee 44. Texas 45. Utah 46. Vermont 47. Virginia 48. Washington 49. West 50. Wisconsin 51. Wyoming 52. Virgin 53. Puerto 54. District 55. Guam 56. not 57. Panama Answer:
songer_state	56	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". TRICO PRODUCTS CORPORATION, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. Nos. 29, 30, Dockets 72-1391, 73-1181. United States Court of Appeals, Second Circuit. Argued Oct. 12, 1973. Decided Nov. 23, 1973. Frank G. Raichle, Buffalo, N. Y. (Raichle, Banning, Weiss & Halpern and Ralph L. Halpern, Buffalo, N. Y., of counsel), for petitioner. Warren Ogden, N. L. R. B. (Peter G. Nash, Gen. Counsel; John S. Irving, Deputy Gen. Counsel; Patrick Hardin, Associate Gen. Counsel; Elliott Moore, Acting Asst. Gen. Counsel; William F. Wachter, and Richard A. Cohen, N. L. R. B., of counsel), for respondent. Before FRIENDLY, ANDERSON and MANSFIELD, Circuit Judges. FRIENDLY, Circuit Judge: What began as a rather minor incident in the research engineering and metallurgy departments of Trico Products Corporation (Trico) has subsequently developed into a vigorously contested dispute before the National Labor Relations Board and has finally led to a Board order imposing substantial back pay' liability on the company. The escalation of this teapot-sized tempest into a serious legal struggle is attributable to a combination of inept handling by lower and middle management and the Board’s unwarranted modifications of the basically sensible recommendations of the Administrative Law Judge. I. Trieo’s business is the manufacture and sale of automotive windshield wipers and other automotive products. Starting at the end of 1969, the company began to suffer a progressive decline in business due in part to a reduction in the number of automobiles produced and in part to the phasing out of other automotive products. Trico had responded with significant reductions in hourly-paid personnel. On May 14, 1970, J. W. Frey, its Vice President for Finance, circulated a directive to all foremen and department heads on the subject of salaried personnel. Frey’s memorandum referred to the gloomy business outlook and urged careful review of operations and efforts at cost reduction, “particularly through reduced overtime and elimination of non-eritical work and/or personnel.” He promised that “In the event we are advised of personnel not critically needed in any department, we will attempt to reassign the employees.” This led to a limited reduction in salaried employees. On September 15 a heavy blow fell in the form of a nationwide strike at General Motors, which was one of Trico’s most important customers. This led to the immediate layoff of-another 139 hourly paid employees, bringing the total number down to about 2080 from approximately 3000 at the beginning of 1969. Among the salaried employees were twelve technicians in Department 54 (Research Engineering), headed by Allan McIntyre, and eight in Department 88 (Metallurgical), directly headed by Michael Tutko although under the general supervision of McIntyre, who reported to Raymond Deibel, Vice President of Engineering. McIntyre and Tutko had been resisting cuts in their departments, arguing that the men had been highly trained at Trico’s expense and would be needed when the existing adversities were overcome. It was in this setting that the incident occurred which precipitated the unfair labor practice charge. The employees had long been displeased over a requirement that they submit “Project Logs” detailing what they had done each day and how much time they had spent on each assignment. Trico was later to explain, evidently to the employees’ satisfaction, that these reports were needed for patent protection, but apparently there had been a failure of communication on this score. On October 16, with what on the most charitable view must be considered a classic example of bad timing, three Department 54 employees, Vastóla, Clark and Soponski, decided the moment had arrived to bring matters to a head. On the following Monday, October 19, Vastóla prepared a petition, which we reproduce in the margin. This was signed by all the employees in the two departments, and placed in the inter-office mail on October 20. When he learned of the petition, McIntyre called Vastóla into his office and inquired about it. After Vastóla had outlined the contents and purpose of the petition, McIntyre expressed the hope that the petition wasn’t “worded too strongly because something like this could be taken two ways. Mr. Deibel could look at this and recognize the fellows have a problem and have a complaint or he could hit the ceiling.” When Vastóla responded that the petition was indeed strongly worded, McIntyre suggested that it be held off until he could talk with Deibel when the latter returned from vacation rather than “hit him with a petition when he walks in the door.” Later in the morning McIntyre summoned Clark, Soponski and McTigue, a metallurgical technician, into his office. The conversation was similar to that with Vastóla and ended with McIntyre’s suggesting that the three talk to other employees with a view to holding up the petition. Still later in the day McIntyre had all the available Department 54 and 88 employees come into his office. He reiterated his request that they hold off and give him a chance to talk to Deibel, since submission of such a petition at the particular time could have an adverse effect on wage increases and “just eould make someone mad.” Despite McIntyre’s efforts, the employees held a meeting and decided to go ahead. The next morning McIntyre, who apparently had learned of the decision, allegedly told Soponski that he “had been too good to the guys” and that if they were “going to step on his toes,” he was “going to change his ways.” McIntyre called another general meeting that afternoon, which was largely a rehash of what had gone before. After the meeting, Tutko called an employee who had not been present to urge him not to support sending the petition; Tutko stated that the petition might cause repercussions and that it would not be wise to send it at the time because of the raise evaluations scheduled for November. Later in the week Tutko asked employee Sparks how he could “be so stupid” as to sign the petition and added, “Do you realize what is going to happen next week when Mr. Deibel gets back?” On October 27, his first day back at the plant, Deibel called a meeting of the employees of the two departments. He said he first wished to discuss the petition but had some bad news to announce afterwards. He expressed disapproval of the petition which, in his view, made it look to management as if the engineering departments could not solve their own problems; he added that he particularly disliked use of the word “demand.” Deibel then explained the purpose of the logs to the satisfaction of the employees. Turning to the “bad news,” he referred to the continuing General Motors strike and the possibility of one at Ford. Because of Trico’s poor economic condition, there would have to be a layoff or, as he preferred to call it, a furlough, effective on October 30. He read the names of eight employees to be laid off; these, chosen in inverse order of seniority, included the three originators of the petition. Each laid-off employee was given a letter stating that his employment had been terminated “because of a reduction in personnel, based on seniority, caused by business conditions.” The letter summarized what the employee’s duties had been and stated that it was “a pleasure” to recommend him for suitable employment. At the unfair labor practice hearing, Deibel asserted that the layoffs were not caused by the petition. He said that before he went on his vacation Frey had appealed to him “to continue an effort to keep our non-productive overhead down.” Deibel testified that he had met with his subordinates on several occasions during the summer and fall to discuss the problem of excess manpower in various departments. In mid-October, McIntyre, Tutko, and R. A. Batt, Dei-bel’s assistant, held a meeting in which Batt told the department heads that they would have to give serious consideration to implementing layoffs. Deibel claimed that he had finally decided on a layoff during the last weekend of his Caribbean cruise and had telephoned the decision to Batt on the morning that he returned. During their conversation, Batt asked Deibel whether he had seen the petition. When Deibel said he had not, Batt suggested that he look through his mail. Upon finding the petition, Deibel said he was disappointed, and arranged to meet with Batt, McIntyre and Tutko. At the meeting, he allegedly assured them that the petition did not bother him but that economic conditions required a layoff in the production research area. McIntyre and Batt said they had done some work on this but would like more time. Deibel told them to prepare a list of employees they would consider cutting, and repeated that he could easily straighten out the employees about the logs. At a second meeting later that morning, Tutko agreed to the layoff of two of his employees and McIntyre agreed to give up four. Deibel subsequently decided to lay off a total of eight. Deibel’s bland account of the sequence of events and his own motivations was somewhat discredited by employee testimony concerning post-layoff statements by Tutko, most of which he conceded to be truthful. McTigue reported that Tutko had told him, “They think they’ve gotten rid of the troublemakers,” and added that he had wárned the employees not to send the petition. Tutko told another employee, “See what I told you last week would happen. Now you know.” II. On a complaint charging various violations of § 8(a)(1), the Administrative Law Judge found that Trico had coer-cively interrogated employees and threatened them with reprisals with respect to an activity protected by § 7. He declined to credit Deibel’s testimony that his decision to make the layoffs had fully matured while he was basking in the Carribbean sun and before he knew of the petition; he thought it strange, as we do, that on the morning of his return Deibel “would not first consult with Frey, or other Company officials, before so hastily laying off these experienced employees.” On the other hand, with equal good sense, he found that “even absent such [protected] activity, the employees laid off on October 30, 1970 ultimately would have been laid off at some future date due to economic conditions and Respondent’s overall program to reduce non-productive work.” In addition to the facts already related, he deemed it “particularly significant that none of the laid off employees were replaced by the hiring of any new employees,” since this “clearly demonstrates that Respondent was able to continue the operation of its business with this lesser number of employees.” He therefore declined to order reinstatement (although he directed that the names of the laid-off employees be placed on a preferential hiring list) and limited the amount of back pay, which was to be determined in a compliance proceeding, to the amount the laid-off employees “would have earned from the date of discrimination to the date they would have been normally laid off, absent the discrimination, less net earnings during said period.” On the other hand, he included in his recommendations a “broad order” directing Trico to cease and desist from “[i]n any other manner interfering with, restraining or coercing its employees in the exercise of rights guaranteed them by Section 7 of the Act.” Both Trico and the UAW, the charging party, excepted to the Administrative Law Judge’s decision although the General Counsel did not. The Board adopted most of the findings of the Administrative Law Judge but disapproved his decision in one important respect, namely, his conclusion that the petition merely accelerated a layoff which in any event would have occurred relatively soon. It concluded that Trico had apparently believed that because salaried technical personnel were difficult to replace, they should not be laid off no matter what the company’s economic condition. The Board further found that “although the question of taking layoff action was debated and was discussed by Deibel with his department heads on a number of occasions following Frey’s directive, all had commonly agreed that all their employees should be retained.” Since Trico had presented no evidence of contemporaneous layoffs in other departments, the Board perceived “no relevance in the fact that the eight employees named in the complaint were not replaced.” Accordingly, it directed that Trico offer the employees reinstatement to their former jobs or, if these no longer exist, to substantially equivalent positions and that the company make the employees whole for any loss of earnings, apparently until the end of time. III. We shall consider in the first instance the conclusions with respect to coercive interrogation and threats. Trico contends with some persuasiveness that McIntyre and Tutko were endeavoring to help the employees, not interfering with, restraining, or coercing them in the exercise of their undoubted right to protest about working conditions. According to the company, McIntyre and Tutko were merely trying to dissuade the employees from taking action which had little chance of accomplishing anything and might suggest to management that the men were reluctant to report what work they were doing because they had very little to do. We sustain Trico’s position with respect to the interrogation. Neither the Administrative Law Judge nor the Board made any attempt to analyze this in light of the five standards which we announced in Bourne v. NLRB, 332 F.2d 47, 48 (2 Cir. 1964), and have applied in cases too numerous for citation. The interrogation here failed to meet at least four of the five. Trico had no history of hostility to concerted activities or anti-union discrimination; the interrogation was not directed at obtaining information on which to base action against individual employees; the questioner was not high in the company’s hierarchy; and the replies were truthful. Even as to the remaining criterion, whether the employee was “called from work to the boss’s office” and there was “an atmosphere of ‘unnatural formality’,” the second branch was not met. We must reach a different conclusion with respect to the alleged threats. If we were sitting as triers of fact, we might well agree with Trico that in view of all the circumstances, McIntyre and Tutko were endeavoring to dissuade rather than to intimidate. However, the requirement that we sustain findings “with respect to questions of fact if supported by substantial evidence on the record considered as a whole,” 29 U.S.C. § 160(e) and (f), applies to inferences as well as to findings of evidentiary facts. Radio Officers’ Union v. NLRB, 347 U.S. 17, 48-52, 55-56, 74 S.Ct. 323, 98 L.Ed. 455 (concurring opinion of Mr. Justice Frankfurter) (1954). During otherwise informal and candid exchanges of views, the supervisors’ threats of wage reevaluation, especially in light of Deibel’s subsequent precipitous action, supplied a sufficient basis for the conclusion that the petitioners were coerced in violation of § 8(a)(1). We likewise sustain the finding that the petition was a cause of the employees being laid off when they were. To be sure, Deibel testified that he was not disturbed by the petition and evidently succeeded in persuading the employees that their protest was ill-founded. Yet the Board was not bound to credit his claim that it was a mere coincidence that he ordered the layoffs within a few hours of his receipt of the petition, and at the same meeting at which he mildly rebuked the employees for sending it. See NLRB v. Dorn’s Transportation Co., 405 F.2d 706, 713 (2 Cir. 1969); United Aircraft Corp. v. NLRB, 440 F.2d 85, 91-92 (2 Cir. 1971). The case would indeed stand differently if Deibel had limited the October 27 meeting to answering the petition, had thereafter discussed the layoff problem with Frey or other members of top management who were unaware of the petition or were demonstrably unaffected by it, and had then done exactly what he did here. The exercise of employee rights protected by § 7 cannot forever disable an employer from taking action deemed appropriate in light of economic needs. But if an officer with power to fire has too low a flash point, the company must bear the consequences. We take a different view with respect to the reversal of the findings of the Administrative Law Judge that an early layoff was in the cards in any event. Although “[t]he ‘substantial evidence’ standard is not modified in any way when the Board and its examiner disagree,” nevertheless “evidence supporting a conclusion may be less substantial when an impartial, experienced examiner who has observed the witnesses and lived with the case has drawn conclusions different from the Board’s than when he has reached the same conclusion,” Universal Camera Corp. v. NLRB, 340 U.S. 474, 496, 71 S.Ct. 456, 95 L.Ed. 456 (1951). We have frequently applied this principle. See NLRB v. James Thompson & Co., 208 F.2d 743, 745-746 (2 Cir. 1953); NLRB v. Park-Edge Sheridan Meats, Inc., 341 F.2d 725, 728-729 (2 Cir. 1965); NLRB v. River Togs, Inc., 382 F.2d 198, 203-204 (2 Cir. 1967). In this case the evidence supporting the Board’s conclusion that the eight employees would not have been shortly laid off but for the petition is not substantial “on the record considered as a whole,” even if the Administrative Law Judge’s decision is not taken into account. To anyone having ordinary business sense it would be obvious that a company which had been obliged to cut its production employees by a third and was threatened with the possibility of having to cut by more was not going to maintain its research departments at full strength indefinitely, at least in the absence of evidence that they were engaged in projects vital to the future success of the company. The evidence is wholly consistent with this view. The Board attempted to minimize the force of Frey’s directive of May 14, 1970, by saying that Frey offered to transfer unneeded salaried employees “if possible.” This ignores the deterioration between May 14 and October 30, including the General Motors strike, which continued until November 12, and the attendant layoff of another 139 production employees, as well as the prospect of further deterioration in the future. To be sure, McIntyre and Tutko were fighting to keep their organizations intact, as department heads normally do, but it is uncontradicted that in mid-October Batt told them “Look, let’s be serious about this. We have to really consider laying people off.” In the face of this and other testimony we have recited, the Board’s finding that “although the question of taking layoff action was debated and was discussed by Deibel with his departmental heads on a number of occasions following Frey’s directive, all had commonly9 agreed that all their employees should be retained,” lacks substantial evidentiary support. We likewise fail to comprehend why the fact that the layoffs of October 30 were largely confined to Departments 54 and 88 deprives of relevance “the fact that the eight employees named in the complaint were not replaced.” What the Board seems to be saying is that Trico was so intent on punishing the eight men for making a protest which the company easily satisfied them to have been unwarranted that it was willing to forego for years services needed for the effective conduct of its business. This passes understanding. The Administrative Law Judge was far more convincing in finding that the unfair labor practice merely accelerated the layoffs. The situation is the one, familiar in other contexts, “where a part of the harm caused would clearly have resulted from the innocent conduct of the defendant himself, and the extent of the harm has been aggravated by his tortious conduct;” in such instance the damages should be apportioned as between the tortious and the innocent conduct. Restatement of Torts 2d § 433A at 437. We shall therefore strike the portion of the order mandating reinstatement and restore the. direction of the Administrative Law Judge that the names of the laid-off employees be placed on a preferential hiring list. We shall also eliminate the Board’s provision for back pay and restore that of the Administrative Law Judge. While compliance proceedings will be necessary to determine the amount of back pay, these are not to be used to circumvent our decision that the petition merely accelerated a layoff that would shortly have occurred. The issue in the compliance proceeding is not whether but when. Trico may offer additional evidence as to what the men in the two departments had been doing in the months preceding the layoffs, what the anticipated future work load was, how much this could and probably would be trimmed or postponed in light of economic circumstances, and- how the work has been handled with the decreased force. The General Counsel, in turn, may inquire what was done in other departments and, if there was a difference, why. We mention these lines of inquiry as illustrative and not by way of limitation. The Board shall then determine on the basis of all relevant evidence the earliest date or dates when the employees would have been laid off in the absence of the petition — unless the parties should find it in their best interest to reach some agreement on this score. Finally, we see no justification for the “broad order” recommended in paragraph 1(c) of the decision of the Administrative Law Judge. He offered none except a conclusory reference to “the nature and extent of the unfair labor practices herein found.” As explained in Fremont Newspapers, Inc. v. NLRB, 436 F.2d 665, 674-675 (8 Cir. 1970), the phrase “in any other manner” here used is quite different from an order restraining an employer found to have committed § 8(a)(1) violations from engaging in “other like or related acts,” as sanctioned in NLRB v. Express Publishing Co., 312 U.S. 426, 437, 61 S. Ct. 693, 85 L.Ed. 930 (1941). The instant order would convert any future § 8(a)(1) charge against Trico, however unrelated to the conduct here at issue, into a contempt proceeding. Such orders should be reserved for egregious cases, of which this surely is not one. Accordingly, we shall eliminate paragraph 1(c) from the Administrative Law Judge’s order, as adopted by the Board; paragraphs (a) and (b) afford all the protection needed and warranted. The petitions to review and to enforce are respectively granted and denied to the extent indicated. Settle order on ten days notice. No costs. . Trico suggests that the timing was not accidental since tiie employees feared that further logs would show they lacked sufficient work. However, the Board did not draw that inference or the still more cynical one that the incident might have been staged at this particular time for the very purpose of causing Trico to overreact. . TO: Mr. A.E. McIntyre October 19, 1970 Mr. M.J. Tutko We, the undersigned, strongly protest the use of “Weekly Project Logs” in departments # 54 and # 88. We feel that the use of “Daily Project Logs” is a discriminatory labor practice in that the use of such “Project Logs” is not a requirement of all Technical Departments. Since the use of any discriminatory practice is prohibited by Federal Law, we demand the immediate end of the use of “Daily Project Logs.” If this situation is not immediately remedied, the National Labor Relations Board will be asked to arbitrate, cc: F. Bresse — R. A. Deibel — R. A. Batt Bresse was Trico’s Chairman of Labor Relations ; Batt was Administrative Engineer and assistant to Deibel. Deibel was on vacation at the time the petition was sent and did not return until October 27. . That the eight employees were “laid of£,” not discharged, is confirmed by their receipt of supplemental unemployment payments from Trico and Blue Cross-Blue Shield protection which is not accorded to discharged employees, and by the recall, following settlement of the General Motors strike, of the two technicians with the highest seniority. . Although the company has apparently not hired to fill the vacancies, the Board decision noted that two of the eight employees (one of them a sponsor of the petition) were reinstated in March and April, 1971. We were advised at argument that none of the others had been rehired or replaced. . The UAW, which had been seeking to represent Trico employees, got into the proceeding at an early stage. The union first charged that the eight technicians had been laid off because of union organizational activities. Discovering that it would not be able to prevail on that point, the union amended the charge to allege that the company had interfered with, restrained and coerced the employees for engaging in protected activities, namely, signing and circulating the project log petition. . The Board asserted that besides the eight employees from departments 54 and 88, Trico “laid off none of its salaried technical personnel after March 1970.” However, Frank Breese, the head of the company’s labor relations department, testified that a number or salaried personnel, including employees in tne technical departments, were laid off during 1970. Company records introduced at the hearing indicated that at least 22 salaried employees were laid off between March and the end of October, 1970. . In Bourne we held that the five standards only applied to interrogation that was “not itself threatening.” 332 F.2d at 48. McIntyre’s October 20 inquiries were much more akin to innocent information-gathering than to coercive grilling. . Our fear that they may be has been enhanced by the contention of Board counsel that the change in the back pay provision was not material since, under the Board’s language, the employees are to be made whole only “for any loss of earnings they have suffered in consequence of the unlawful layoffs.” In its brief, the Board contends that it altered the Administrative Law Judge’s findings only because the claim of no available work was not properly a part of the unfair labor practice hearing, but should have been postponed until the compliance proceedings. In its opinion, however, the Board did not simply vacate the Administrative Law Judge’s finding on that account, but considered the question of available work on the merits and strongly implied a decision that the layoffs would not ultimately have occurred for economic reasons. In NLRB v. Dazzo Products, Inc., 358 F.2d 136 (2 Cir. 1986), cited by Board counsel, there was no reason to think the employer’s contentions with respect to limitations on back pay would not be fairly considered in the compliance proceedings. Here, in view of the Board’s decision, there is every reason to think the company’s contention might be deemed foreclosed if we do not direct otherwise. 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_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. E. C. SOLINSKY v. UNITED STATES. No. 7859. Circuit Court of Appeals, Ninth Circuit. June 17, 1935. George Neuner, of Portland, Or., for appellant. Carl C. Donaugh, U. S. Atty., of Portland, Or. Before WILBUR, DENMAN, and MATHEWS, Circuit Judges. PER CURIAM. Upon stipulation of counsel for respective parties, ordered appeal dismissed; judgment of dismissal filed and entered accordingly, and mandate forthwith. Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number. 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. BROOMFIELD et al. v. TEXAS GENERAL INDEMNITY CO. No. 14015. United States Court of Appeals Fifth Circuit. Feb. 13, 1953. Ernest L. Sample, Adams, Browne & Sample, Beaumont, Tex., for appellant. Howell Cobb, Fountain, Cox & Gaines, Houston, Tex., for appellee. Before HOLMES, RUSSELL, and STRUM, Circuit Judges. HOLMES, Circuit Judge This action was instituted by appellants, widow and children of the deceased, Morris L. Broomfield, against the insurer of his employer under the Texas Workmen’s Compensation Law, Vernon’s Ann.Civ.Stat., Art. 8306 et seq. The case was tried without a jury, and was dismissed on the appellee’s motion when the plaintiffs rested, no witnesses having been introduced by the defendant. The court did not find the facts specially and state separately its conclusions of law, as required by rule 52 of the Federal Rules of Civil Procedure, 28 U.S. C.A. The deceased had been employed by Kirby Lumber Company for a period of thirty-six years, and was performing the duties of a sand-drier at the time of the alleged injury (in March, 1950), which occurred while he was tearing down a building in the course of his employment. He allegedly reached up to secure a board; and, in so doing, injured his heart, which caused the fatal injury or aggravated preexisting ailments, resulting in his death. His widow testified that he had not complained of feeling ill before he left home on the morning of the alleged injury, and that he appeared to be in sound health; that, on his return home from, his work that day, he sat on the side of his bed and held his hand to his chest, exclaiming that he had been injured during his work that morning; that he was hurting and in pain; and that he had strained his heart when reaching up to grasp a board; that he attempted to return to work three days later; but, because of shortness of breath and other symptoms, he was unable to resume his employment prior to his death on August 18, 1950. It further appeared that he was the only employee assigned to the task of dismantling the shack, and there was no eyewitness to the accident. The court properly excluded the widow’s testimony as to what the deceased told her about his having strained his heart. Dr. Moffat, the company’s doctor, and the only physician who examined the deceased, testified that Broomfield reported to him that he strained his heart when he pulled down a hoard, adding that he knew of no reason for doubting the deceased’s veracity. In his surgeon’s report, which by its own language required a full description of the nature of the injury, the employee’s condition was diagnosed as a strained heart. The facts as to the injury were also-related by the deceased to the company’s nurse and cashier, and were recorded in the company’s accident records. From the evidence, the deceased apparently had been ill with heart trouble three or four months prior to the accident, but was issued a slip by the company’s doctor authorizing his return to work. After the employee’s death, the doctor’s report of the accident was altered so that “no” was superimposed over the original “yes”, in answering the question as to whether the accident was the sole cause of the deceased’s injury. Dr. Moffat admitted that appellee’s insurance adjuster persuaded him to make the alteration. Such action in procuring an alteration of the doctor’s original report amounted to an attempted suppression or alteration of evidence of such a nature as to be construed as a recognition of the injury by the appellee. See McEntire v. Baygent, Tex.Civ.App., 229 S.W.2d 866, 20 A.L.R.2d 300. Omnia praesumuntur contra spoliatorem. Broom’s Legal Maxims, 938; Bouvier’s Law Dictionary and cases therein cited, as follows: 1 Greenleaf on Evidence, Sec. 37; 5 Allen 172; 31 L.R.A. 581; 45 Pac.Rep. 1073. The appellee admitted that the deceased reported the injury described in the employer’s first report of injury, dated 4/22/50, filed with the defendant and the Industrial Accident Board of Texas; but, under Article 8309(5) of the Texas Civil Statutes, such report is not admissible to prove any question in dispute. The testimony of the company’s doctor, and the record made by him, furnished sufficient medical evidence to warrant a finding that death resulted from the alleged injury if he was injured as claimed. Brodtmann v. Zurich General Accident &. Liability Ins. Co., 5 Cir., 90 F.2d 1; Carter v. Travelers Ins. Co., 132 Tex. 288, 120 S.W.2d 581. An industrial ^accidental injury may be proved by circumstantial evidence; it is not always necessary to have an eyewitness other than the deceased (whose voice is silenced by death as the result of such injury). When all the hearsay evidence and self-serving declarations in the record are excluded, there might not be sufficient evidence to sustain a finding for the plaintiffs without the maxim above quoted, that all things are presumed against the wrongdoer; but, with the aid of this presumption and upon the authority of the Brodtmann case, supra, we think the circumstantial evidence made a prima facie case for the plaintiff, which entitled them to a consideration of the issues by a jury or other fact-finding tribunal. We think the circumstantial evidence, aided by the presumption, might fairly and reasonably be deemed to exclude any explanation of the injury and death other than that the deceased strained his heart or aggravated its already weakened condition when he was tearing down the house in the course of his employment. After 36 years of service, this employee left for his work in apparent good health according to his wife, and well enough to work according to the employer’s doctor. The company’s payroll should show exactly how long he worked that morning, tearing down a house; but his wife testified that he was writhing in pain, and claiming to have strained his heart, when she saw him after his return. He reported the injury to his employer, as he was legally required to do; and this is competent evidence, not of the fact of injury, but of the fact that he reported it. He made certain statements to his doctor, to his nurse, and to other attendants, which were recorded in the hospital records. It is reasonable to assume that the insurance adjuster had questioned him and investigated his claim, which was compromised in the lifetime of the employee. The fact of the compromise is not evidence of the company’s liability, but it throws light on what was in the adjuster’s mind when he persuaded the doctor to alter his records and opinion as to the-cause of death. In a case of circumstantial evidence, trifles may be given weight in connection with the other facts in evidence, and if we indulge every presumption against the spoliator, it is easy to presume that this adjuster had investigated the evidence, which was accessible to him but not to the heirs of the deceased, and that he deemed it necessary to change or suppress the doctor’s opinion as to the cause of this man’s death, because the man was injured in the course of his employment. When we recall how much is presumed under statutory presumptions creating prima facie liability, we are afforded some idea of the scope and effect of a maxim that has survived in the jurisprudence of the civil law and of the common law for over a thousand years. The judgment appealed from is reversed, and the cause remanded to the district court for further proceedings not inconsistent with this opinion. Reversed and remanded. 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_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, Appellee, v. William S. ALESSIO, Defendant, Appellant. No. 7774. United States Court of Appeals, First Circuit. March 11, 1971. Gordon C. Mulligan, Warwick, R. I., by appointment of the Court, for defendant-appellant. Joseph C. Johnston, Jr., Asst. U. S. Atty., with whom Lincoln C. Almond, U. S. Atty., was on brief, for appellee. Before ALDRICH, Chief Judge Mc-ENTEE and COFFIN, Circuit Judges. PER CURIAM. Defendant’s appeal raises three questions, two of which are so lacking in merit as to require no mention. The third is more troublesome. The defendant was indicted for larceny of government property. 18 U.S.C. § 641. One of the items he was charged with taking was certain U. S. currency, allegedly belonging to the petty cash fund of a government installation. In the course of the trial at which defendant was convicted, it was sought to show on cross-examination of two government witnesses that this money belonged to a government employee who was merely indebted to the government therefor, as distinguished from being directly owned by the government. This would have been fatal to that aspect of the government’s case. At one stage of the interrogation the court sustained a government objection, stating that indisputably the money in the fund constituted government property. The relevant portions of the testimony include the following. On cross-examination a Mr. Clark, a government witness, testified as follows. A. I think I said personally responsible. Q. Personally responsible for. And that money becomes your money, and you owe the money to the United States by accounting for how it is spent? A. That is correct. Later, when co-defendant’s counsel referred to this testimony, the following colloquy occurred. The COURT. I think not, Mr. Berk. The money didn’t belong to Mr. Clark. It wasn’t usable for Mr. Clark’s purposes; it was merely a trust fund of money belonging to the Government. I don’t find any merit in that contention. Mr. BERK. Does the Court make that finding? The COURT. I do. It was the property of the United States Government. Defendant noted his objection. The court could properly make a ruling of law with respect to title, predicated upon findings of fact which it left to the jury. However, it is clear that the court did more. It left nothing to the jury. It made a “finding” that the money belonged to the government, which was not only an essential element in the government’s case, but depended upon an acceptance of the testimony of the government witnesses. The court cannot make a finding accepting the government’s testimony, no matter how clear it may be; the burden still remained on the government to prove the money in the fund belonged to it. Testimony, though unchallenged, may still be disbelieved. As we said in DeCecco v. United States, 1 Cir., 1964, 338 F.2d 797, at 798, “No matter how persuasive the government’s evidence may seem to the court, there is no burden on a defendant to dispute it.” We held it to be error in DeCecco for the court to inform the jury that it did not have to make a finding as to a certain element in the government’s case because the defendant did not dispute it. It was even greater error for the court here to make such a statement when counsel had, although possibly ineffectively, sought to make an issue of the matter. Reversed, new trial ordered. 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_origin	F	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. NATIONAL LABOR RELATIONS BOARD v. STANDARD STEEL SPRING CO. No. 10956. United States Court of Appeals Sixth Circuit. March 28, 1950. Marcel Mallet-Prevost, Washington, D. C, for petitioner. David P. Findling, A. Norman Somers, Marcel Mallet-Prevost, and Margaret M. Farmer, Washington, D. C., on the brief. W. D. Armour, Pittsburgh, Pa., for respondent Standard Steel Spring Co. Nicholas Unkovic, W. D. Armour, Reed, Smith, Shaw & McClay, Pittsburgh, Pa., on the brief. David E. Feller, Washington, D. C., for United Steel Workers of America, C.I.O., intervenor. Arthur J. Goldberg, Thomas E. Harris, Washington, D. C, on the brief. Before SIMONS, McALLISTER, and MILLER, Circuit Judges. McALLISTER, Circuit Judge. This is a petition for enforcement of an order of the National Labor Relations Board. The order required The Standard Steel Spring Company to cease and desist from recognizing the United Steelworkers of America, C.I.O., as the exclusive representative of its powerhouse employees at its Newton Falls, Ohio, plant. It also required tlhe company to refrain from giving effect to its contract with the Steelworkers, in so far as it affected such powerhouse employees, until the Steelworkers shall have been certified as the representative of such employees; and to desist from, in any like or related manner, interfering with the rights of its employees, as guaranteed by Section 7 of the National Labor Relations Act, 29 U.S.C.A. § 157. Affirmatively, the order required the company to withdraw all recognition from the Steelworkers as the representative of any of its powerhouse employees at the Newton Falls plant unless and until the Board shall have certified sudh organization as the representative of such employees. The order concluded with the usual requirement that the company post appropriate notices of the foregoing, and informing its employees that it was carrying out the above provisions. The circumstances giving rise to the Board’s order are as follows: The respondent company acquired the Newton Falls plant in May, 1946, and engaged contractors to remodel it. Prior to their acquisition by respondent, the premises had been occupied by the Timken Roller Bearing Company. At the time of the hearing in June, 1948, respondent company had employed about 350 permanent employees, of whom half had formerly been employed by the Timken Company. The Timken employees had been previously represented by the Steelworkers, C.I.O.; and the Steelworkers have, for a number of years, represented, with one exception, all of the production and maintenance employees, including the powerhouse employees, in all the other plants of respondent company in plant-wide units at such other plants. For a long time before the present dispute arose, the Steelworkers, C.I.O., and the local A. F. of L. unions had an agreement in the area in which the Newton Falls plant is located, that the Steelworkers would not attempt to organize a new plant until the A. F. of L. craftsmen engaged in the construction work had left the premises, and the employer had (hired production and maintenance employees and had commenced production. In turn, the A. F. of L. locals had agreed to give the C.I.O. a free hand in organizing the production and maintenance employees of such a manufacturing plant. In accordance with this agreement, the Steelworkers made no attempt to organize respondent company’s employees until the latter part of July, 1947, after the A. F. of L. craftsmen had completed their work on the remodeling of the plant, and after respondent had hired permanent employees and was ready to start production. However, while the new plant was under construction, during the first part of April, 1947, an A. F. of L. union from outside the community — the International Union of Operating Engineers — appeared upon the scene and proceeded to organize the nine powerhouse employees of respondent company. After these employees had designated the Engineers, A. F. of L., as their representative, the Engineers demanded that respondent company grant it recognition as their exclusive bargaining representative. Respondent company informed the representative of the Engineers that it preferred a plant-wide bargaining unit, and that it had agreements with the Steelworkers in all of its other plants covering plant-wide units of production and maintenance employees. It further pointed out that it had not yet started production and had hired only a few permanent employees, -and that, at that time, it was not yet possible to ascertain what type of union all of the employees would want. This discussion took place approximately four months before the reconstruction work on the plant had been completed, and about five months before most of the production and maintenance employees had been hired, and production commenced. Upon receiving thi-s reply from respondent company, the Engineers filed a representation petition with the National Labor Relations Board, requesting certification as exclusive bargaining representative for the nine powerhouse employees. On May 28, 1947, the Board held « hearing on the representation petition, in which the parties to the proceeding were the Engineers and respondent company. The Board then took under advisement the question of the appropriate unit, and the determination of representatives for the employees in such unit. When respondent had practically completed the remodeling of the plant during the latter part of July, 1947, it' -hired its permanent production and maintenance employees, and began production. The Steelworkers, C.I.O., thereupon appeared in the plant, launched an organizing campaign, and shortly before August 8, 1947, claimed to represent a majority of the production and maintenance employees then in the plant, including the powerhouse employees. It, accordingly, demanded that respondent company grant the Steelworkers recognition as the exclusive bargaining representative of all the employees in a plant-wide unit. Respondent company, however, required that the Steelworkers union first prove- that it actually did represent a majority of the employees in the proposed unit. Consequently, in proof of its claim -to majority representation, the Steelworkers union submitted 134 union cards, which were checked against respondent’s pay roll of approximately 180 eligible employees in the proposed production and maintenance unit. Of the cards submitted, 123 were found to bear names appearing on the company’s pay roll list, and ten were employees who -had been hired subsequent to the making of the pay roll list used for checking purposes. Prior to thi-s date, all of the powerhouse employees who had formerly designated the Engineers as their representative, had accepted membership in the Steelworkers. Cards were submitted for all of these powerhouse employees, showing them to be members of the Steelworkers union. In addition, the powerhouse employees, on August 13, 1947, had executed an affidavit addressed to the National Labor Relations Board, at Washington, wherein they all stated, under oath, that they had originally signed cards in the Engineers union, but subsequently had all -signed cards and accepted membership -in the Steelworkers. All of the powerhouse employees thereupon requested the Board to dismiss the case involving the claimed representation of such employees by the Engineers, as well as the question of the appropriate unit to represent them. The Steelworkers union advised respondent company of the execution of thi-s affidavit during the conference with respect to representation of respondent’s employees by the Steelworkers. Moreover, Leslie Ackerman, a powerhouse employee, and, at one time, the leader in the Engineers, A. F. of L., union, had become president of the Steelworkers union, and was a member of the committee at that time negotiating for the Steelworkers, and advised respondent company that the powerhouse employees desired the Steelworkers union as their collective bargaining representative. Under these circumstances, the respondent company recognized the Steelworkers union, and entered into collective bargaining with it; and an agreement covering the production and maintenance employees of the Newton Falls plant, including the powerhouse employees, was entered into on August 19, 1947, between the respondent company and the Steelworkers union. On December 10, 1947, approximately seven months after the hearing in the representation case brought by the Engineers union, A. F. of L., the Board handed down its decision, in which it held that the employees in the powerhouse in respondent company’s Newton Falls plant constituted an appropriate unit, and ordered an election to be conducted not later than thirty days from the date of such decision. On December 19, 1947, a meeting was 'held in the plant between representatives of the company and the Engineers union, presided over by the Election Examiner for the Board, for the purpose of arranging the details of the election. It was agreed that an election would be held January 7, 1948, and that the eligibility pay roll period would be the period immediately preceding the date of the Board’s decision directing an election. On December 26, however, the Engineers union filed with the Board the charges of unfair labor practices in this case, and the election for bargaining representative was indefinitely postponed pending the outcome of the present case. On the filing of the charges, the Regional Director issued a complaint setting forth that respondent had interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the National Labor Relations Act, by assisting and supporting the Steelworkers union through recognizing it as the exclusive bargaining representative of its employees when respondent knew that the Engineers union claimed to represent a majority of the powerhouse employees who were alleged to constitute the appropriate unit for bargaining purposes. It was further alleged that the respondent had coerced its employees after the Engineers had filed a representation petition with the Board, and after a formal hearing had been conducted by the Board with respect to such petition. The complaint also alleged that the Act had been violated by respondent’s entering into a collective bargaining agreement with the Steelworkers during the pendency of the question of representation before the Board, and at a time when the Steelworkers did not represent a majority of the employees working in the powerhouse. The respondent company answered the foregoing complaint, denying that it had violated the Act. It stated that before it had signed the contract with the Steelworkers, it had received-proof that a majority of the production and maintenance employees had designated the Steelworkers as their collective bargaining representative; that all its powerhouse employees had signed cards and accepted membership in the Steelworkers union; and that these employees had all signed an affidavit to this effect, and had requested the Board to dismiss the pending representation petition filed by the Engineers union. A 'hearing was held -on this complaint in June, 1948, and thereafter, the Trial Examiner issued his report, rejecting the company’s contentions, holding that it was engaged in unfair labor practices, and recommending the action which was finally followed by the Board when it adopted the Examiner’s findings, conclusions, and recommendations. Under the uncontradicted testimony and evidence, no real question of representation existed at the time of the filing of the complaint or the hearing on the alleged unfair labor practices in this case. At the time the respondent company recognized the Steelworkers union as the bargaining representative of its maintenance and production employees, including the powerhouse employees, it is unquestioned that the Steelworkers union was the choice of the majority of respondent’s maintenance and production employees, and, as to the employees in the -powerhouse — the only group here in question — the undisputed evidence disclosed that the Steelworkers union was the unanimous choice of such employees as their bargaining representative. Not a single powerhouse employee wanted the Engineers union for bargaining representative at the time of the recognition by respondent company of the Steelworkers as such representative. On the contrary, all such employees had filed a statement under oath with the Board, stating that they wanted to be represented by the Steelworkers, and praying that the representation proceeeding previously commenced by the Engineers union, bas^d on its representation of these same powerhouse employees, be dismissed. Aside from the respondent company’s recognition of the Steelworkers as the representative of its employees and its entering into an agreement with this union as such representative, no claim is made tlhat the company engaged in any unfair labor practices or coerced its employees in any manner in the selection of their representative. Whatever may have been the situation six months before the company recognized the Steelworkers' union as the bargaining representative of its employees, is here irrelevant. There can be no question, from the record, that’ at the time respondent company recognized the Steelworkers, that union represented the great majority of all of respondent’s employees, as well as all of the, powerhouse employees. In fact, there was no evidence whatever to the contrary. The mere ■ circumstance that there is pending an undisposed proceeding before the Board for the determination of the employees’ choice of representative, based on a petition brought by one union, does not convict an employer of unfair labor practices for recognizing another union as the employees’ representative on clear proof of such majority representation, submitted several months after the inception of the representation proceedings. This is not a case where a company has interfered with the right of its employees to a fair, unhampered choice of their bargaining representative, or where it has intruded its economic power to assist or encourage, or to oppose or discourage adherence to a particular labor organization. Respondent company did not enter a race between competing unions, nor give one an improper advantage during a campaign for the employees’ fayor. Here, the good faith of respondent company was unquestioned by the Board. It is clear that respondent was not guilty of any unfair labor practices. The petition for enforcement of the order of the Board is denied. 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_direct1	C	What follows is an opinion from a United States Court of Appeals. Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal in suits against management, for union, individual worker, or government in suit against management; in government enforcement of labor laws, for the federal government or the validity of federal regulations; in Executive branch vs union or workers, for executive branch; in worker vs union (non-civil rights), for union; in conflicts between rival union, for union which opposed by management and "not ascertained" if neither union supported by management or if unclear; in injured workers or consumers vs management, against management; in other labor issues, for economic underdog if no civil rights issue is present; for support of person claiming denial of civil rights. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards. Arthur J. GOLDBERG, Secretary of Labor, United States Department of Labor, Appellant, v. KICKAPOO PRAIRIE BROADCASTING CO., Inc., a Corporation, and KLRS Broadcasting Co., a Corporation, Appellees. Arthur J. GOLDBERG, Secretary of Labor, United States Department of Labor, Appellant, v. KICKAPOO PRAIRIE BROADCASTING CO., Inc., a Corporation, and Roger H. Taylor, Neosho Broadcasting Company, Inc., a Corporation, and KLRS Broadcasting Co., a Corporation, Appellees. Nos. 16540, 16541. United States Court of Appeals Eighth Circuit. April 5, 1961. Jacob I. Karro, Deputy Asst. Sol., U. S. Dept.' of Labor, and John Weiss, Atty., U. S. Dept, of Labor, Washington, D. C., for appellant; Harold C. Nystrom, Acting Sol. of Labor, Judah Best, Atty., U. S'. Dept, of Labor, and B. Harper Barnes, Regional Atty., U. S. Dept, of Labor, Washington, D. C., on the brief. B. H. Clampett, Springfield, Mo., for appellees. Before JOHNSEN, Chief Judge, and VOGEL and BLACKMUN, Circuit Judges. VOGEL, Circuit Judge. The Secretary of Labor commenced these two actions under the Fair Labor Standards Act of 1938, as amended, §§ 201-219 of Title 29 U.S.C.A. No. 16,540 was brought to recover from the defendants Kickapoo Prairie Broadcasting Company and KLRS Broadcasting Company unpaid minimum wages and overtime compensation claimed to be due employee Hazel O. Waltman. By No. 16,541 the Secretary sought to enjoin Kickapoo, Neosho Broadcasting Company, KLRS Broadcasting Company and Robert H. Taylor from violating the Act’s compensation and record-keeping requirements, §§ 15(a) (2) and 15(a) (5). The cases were consolidated for purposes of trial. It was conceded that the Act was applicable and that the defendants’ employees were covered. The defendants denied the violations. The trial court in No. 16,541, while finding “daily irregularities and minor inaccuracies” which constitute “a technical violation of the Act”, and that “violations existed, but the overall impression is that they were innocent violations” denied the injunction. In No. 16,540 the trial court found the testimony sharply disputed, that plaintiff “failed to sustain the burden of persuasion” and denied recovery. 182 F.Supp. 578, 584. In appealing the Secretary contends (1) that the trial court’s denial of the injunction exceeded its discretion since defendants failed to make corrections after they had been warned about their fictitious time records, and (2) that the court erred in not approximating the compensation due employee Waltman under the principles of Anderson v. Mt. Clemens Pottery Co., 1946, 328 U.S. 680, 66 S.Ct. 1187, 90 L.Ed. 1515, rehearing denied, 329 U.S. 822, 67 S.Ct. 25, 91 L.Ed. 699, claiming the evidence established that she performed work not reported and for which she was not paid. During the period of alleged violations, March 3, 1956, to March 7, 1958, Kickapoo owned and operated two radio stations, KICK at Springfield, Missouri, and KLRS at Mountain Grove, Missouri. Kickapoo’s principal office was located at Springfield. Neosho was engaged in radio broadcasting at Neosho, Missouri, under the call letters KBTN. In November or December, 1958, subsequent to the filing of these actions, Kickapoo sold radio station KLRS at Mountain Grove to the newly-formed KLRS Broadcasting Company, a corporation. All three corporations, Kickapoo, Neosho and KLRS, were owned by defendant Taylor and two other individuals. During a pre-trial conference held on March 17, 1959, it was disclosed that Neosho had been sold to a third party and that the sale was with the F.C.C.’s approval. Taylor was the owner of one-third of the stock of Kickapoo and KLRS. He also owned stock of Neosho and was secretary-treasurer of the three corporations. In the latter part of 1956 Taylor assumed general control of the payroll practices at Neosho, Mountain Grove (KLRS) and Springfield (KICK), a position maintained by him thereafter. The payroll record-keeping practices for the three stations were essentially the same. For a short time during the period involved time clocks were used but after protests and objections on the part of various employees, the time clocks were removed. Thereafter a system was instituted by which each employee was supposed to keep track of and make out his own time records. Such records consisted of time sheets which were mimeographed so as to show the days of the week and the time worked each day. Each employee was supposed to fill in the on and off time, total the number of hours for each day and show total hours worked at the end of each week. There was a place for computation of wages and certification as to the correctness of times worked to be signed by the employee. After each weekly time sheet was filled out and signed by the employee, it was delivered to the local station manager, who himself certified as to the accuracy of times worked. The time sheets were then forwarded to the Springfield office where checks were prepared. Finally* the checks with the time information were sent to Mr. Taylor’s office for his approval and signature. There was testimony that hours were typed out on cards for the employees to see when they made out their weekly time sheets. They either copied them off the card or a typist typed them in for them. It was the contention of the Secretary, and substantial testimony by many employees sustained his contention, that the violations followed a regular pattern that employees were required to report a scheduled number of hours each week, when in fact their hours exceeded the hours reported so that many times they were not paid time and a half for the periods exceeding 40 hours weekly. It was the contention of the defendants, supported by the testimony of the defendant Taylor and some of the local managers, that the stations were organized so that they could be operated on a basis of 40 hours weekly for the employees; that except in an emergency they wanted overtime kept to a minimum ; that no employee worked overtime for which he was not compensated; that the employees made out the weekly time sheets themselves, certifying as to correctness; that they were accurate and that payment was made in accordance with the information contained thereon. While, as indicated, there was much disputed testimony, by far the greater weight thereof, as well as substantial uncontradicted testimony, showed violations of the Act. At Neosho the weekly time records for employee Tertzakian show almost without variation that he worked exactly 6 hours and 57 minutes each day Monday through Friday and 5 hours and 15 minutes on Saturday and that these figures add up to exactly 40 hours per week. When a variation did exist, the hours and minutes would, in most instances, still total exactly 40 hours per week. Tertzakian testified without specific contradiction that he was instructed to show only 40 hours on the time sheets, although in actual fact his work week was variable and averaged between 53 and 55 hours; that instructions came from the owners of the station to put only 40 hours on the weekly time sheets. Tertzakian claimed the local manager threatened him with immediate discharge if he did not comply with his wishes regarding the reporting of only 40 hours weekly. On occasions he signed time sheets in blank. Mrs. Betty Johnson, the secretary-bookkeeper, testified that she sometimes filled these in on instructions from the local manager, Morrison, in accordance with a schedule that Morrison had fixed up for them “to go by”. Mrs. Johnson further testified that as to herself she was instructed by the local manager to record no more than 45 hours of work per week on her own time sheets, although she regularly worked 3 to 5 hours additional each week; that she did this to hold her job; that she was told not to turn in any overtime over and above what they were allowed; that if she did put down the additional overtime the local manager would make her re-do the time sheet; that she at first did not report this to the Wage and Hour investigator because she was afraid of losing her job. Evidence regarding the operation of KLRS at Mountain Grove was similar. The weekly time sheets with reference to employee John Prickett at Neosho establish obvious violations. For each week, excepting one, there were two time sheets, the first covering Sunday through Friday, inclusive, with a total of 40 hours. The second, covering Saturday, showed 8 hours worked. For the first 40 hours he was paid at the rate of $1.00 per hour. For the 8 hours overtime on Saturday he was paid but $1.25 per hour, whereas, of course, the overtime pay should have been at the rate of $1.50 per hour. For the week ending July 27,1957, the same thing occurred, with an underpayment for overtime. In signing and certifying as to the correctness of such particular time records, the local manager, Morrison, added on one time sheet the following note for the Springfield office: “After this week John will have a set sallery of 50.00 weekly, as he is putting in close to 60 hours weekly. BM” (Emphasis supplied.) Thereafter, with one exception, the weekly time sheets continue to show 40 hours worked Sunday through Friday and 8 hours on Saturday with payment at the rate of $1.00 per hour for the first 40 hours and $1.25 for the overtime. Accordingly, these time sheets show continuous underpayment for overtime worked and also establish that if Prickett was putting in close to 60 hours weekly as stated by the local manager, he was working 20 hours overtime instead of 8, that he should have received time and a half for the overtime or a weekly wage of $70.00 instead of the $50.00 indicated by the local manager and as paid according to the records. On cross-examination Morrison, the local manager, was asked: “Q. Did you tell Mr. Taylor that these employees, including Mr. Prickett, were working over forty hours a week at the time? A. I am sure Mr. Taylor realized it, from the reports that were going in to him, weekly.” Additionally, the local manager’s note to the head office “ * * * he is putting in close to 60 hours weekly” discloses full knowledge that the reported 48 hours was a false statement, although the local manager certified that “the above times are correct”. There is here indicated a complete willingness to continue such false certification of records as to time and to continue marked underpayment. A salary of $50.00 per week for working 60 hours resulted in an hourly wage of approximately 83(i, with nothing additional for overtime. These were not technical violations or minor inaccuracies. False records known to be false and underpayments made knowingly negate any conclusion that only “innocent” violations were involved. In addition, the record discloses no indication on the part of the defendants that the violations of which they were aware would not be continued. In fact, the attitude of the defendants would appear to be that if the employees did not put down the correct hours, it was not their responsibility and they would do nothing about it. Taylor testified that he told the investigator who reported the violations and gave warning: “If there is anything wrong, Mr. Hurst, it would have to fall with the employees and the manager, because they have been instructed to put down their exact, correct time * * " This contention is untenable here under both the facts and the law. The facts disclosed that Taylor knew of violations, but even if that were not true and the local managers were the only ones who knew, the responsibility is nevertheless that of the defendants. Corporations can speak and act only through their agents. Here a knowledge on the part of the local managers that the records were false and that overtime was worked which was not paid for was knowledge of the corporate employers. In Hertz Driv-Ur Self Stations v. United States, 8 Cir., 1945, 150 F.2d 923, 929, this court held a corporate employer responsible for inaccurate records kept by the local branch manager: “But Ashbaugh was the person who was conducting the corporation’s business at its Kansas City branch; he was the one who made the entries; the law imposed on the corporation the duty of keeping correct records; and the making of false records by its manager must be held to be the criminal act of Hertz, Inc., as well as of Ashbaugh, within the purposes of the Fair Labor Standards Act.” In Lenroot v. Interstate Bakeries Corp., 8 Cir., 1945, 146 F.2d 325, 328, this court, speaking of another requirement of the Act, quoted with approval: “As pointed out by Judge Cardozo, in People v. Sheffield Farms-Slawson-Decker Co., 225 N.Y. 25, 121 N.E. 474, 476, the mandate of the statute is directed to the employer and ‘he may not escape it by delegating it to others.’ The ‘duty rests on the employer to inquire intq the conditions prevailing in his business. He does not rid himself of that duty because the extent of the business may preclude his personal supervision, and compel reliance on subordinates. He must then stand or fall with those whom he selects to act for him. * * the duty must be held personal, or we nullify the statute * * ." In Walling v. Panther Creek Mines, 7 Cir., 1945, 148 F.2d 604, 607, the contention was made that the defendant should be excused from keeping the records required under Section 11(c) of the Act because it was not “commercially feasible” to keep them. The court succinctly answered: “The Act places the duty of keeping accurate records squarely on the employer and the regulations prescribe this duty, so failure to comply with these regulations constituted cause for issuing an injunction. * * Any other holding would open the door to widespread violations.” (Emphasis supplied.) 148 F.2d at page 607. See also Mitchell v. Hygrade Water & Soda Co., 8 Cir., 1960, 285 F.2d 362, 364. Defendants rely upon the fact that the granting or denying of an injunction rests within the discretion of the trial court. While such is undoubtedly the rule, we believe that refusal here to grant the injunction on the grounds that the violations were “innocent” and “technical” was an abuse of that discretion. The violations were known to the defendants and yet no corrective measures or other indications of good faith were taken or made. In Tobin v. Anthony-Williams Mfg. Co., 8 Cir., 1952, 196 F.2d 547, 551, rehearing denied, May 29, 1952, we stated: “We recognize that there is discretion in the trial court in issuing or refusing to issue an injunction pursuant to Section 17 of the Act. But in this case no showing was made to the trial court as to what would be done to bring defendant’s records into conformity with the requirements of the Act. No officer of defendant stated that the defendant would or would not comply. * * * * * * “In that state of the record a case for issuance of injunction was clearly made out under the statute.” There, as in the instant case, evidence adduced on trial showed that defendants, after warning had been given, had failed to comply up to the time of trial and there was no showing as to what would be done to bring their records into conformity with the requirements of the Act. Speaking for this court in Lenroot v. Interstate Bakeries Corp., supra, 146 F.2d at page 327, Judge Woodrough stated: “It is true that the granting or withholding of injunction under section 17 is not mandatory. There remains a discretion in the court. But it is settled that it must be exercised in the light of the objective of the Act to abolish ‘oppressive child labor,’ and must be measured by the standards of the public interest in putting an end to that evil and not by the requirements of private litigation.” While we were concerned there with the child labor provisions of the Fair Labor Standards Act, yet the principles enunciated regarding the trial court’s discretion are equally applicable to the case at bar. Employers’ lip service to a law, with a background of violations, is a poor guarantee of future compliance. Lenroot v. Kemp, 5 Cir., 1946, 153 F.2d 153, 157. In Walling v. Panther Creek Mines, supra, the principal issue was whether defendant’s record-keeping system met the legal requirements of the Act. After noting that the granting of an injunction lies within the trial court’s discretion, the opinion continues in language especially pertinent to the instant case: “On the contrary, the challenged practices are continuing, and defendant asserts that they are lawful. No promise has been made to discontinue or correct them. The trial court was of the opinion that the defendant may have committed violations of the Act, and if it did, the violations were only ‘technical.’ Thus the question boils down to whether the practices are illegal, for if they are, since the standards of the public interest, not the requirements of private litigation, measure the need for injunctive relief, an injunction should be issued. * * * “ * * * where the evidence clearly shows existing violations and the likelihood, indeed, the virtual certainty, of future violations, a decision denying an injunction will be reversed. Goshen Mfg. Co. v. Myers Mfg. Co., 242 U.S. 202, 37 S.Ct. 105, 61 L.Ed. 248; Hughes Tool Co. v. Owen, 5 Cir., 123 F.2d 950; Walling v. Mid-Continent Pipe Line Co., 10 Cir., 143 F.2d 308.” 148 F.2d at page 605. Here there was “virtual certainty” of future violations since defendants deemed their record-keeping system “excellent” and apparently, therefore, did not contemplate making it accurate. We think it was error on the part of the trial court to deny the injunctive relief. In so holding, we observe that injunctive relief is not punitive but remedial — if defendants “comply with the law they lose nothing by the injunction.” Mitchell v. Southwest Engineering Co., 8 Cir., 1959, 271 F.2d 427, 432. We next consider No. 16,540, the suit brought by the Secretary to recover for alleged unpaid minimum wages and overtime compensation for Hazel O. Walt-man. Mrs. Waltman was employed in the operation at Mountain Grove, station KLRS, from August, 1956, until she was discharged in February, 1958, for being a trouble maker. She testified that in order to keep her job she had to falsify her time sheets to show only 40 hours, thus not reflecting the many hours of overtime worked and not compensated for. In so testifying she relied upon secret time records allegedly kept by her beginning shortly after her employment. After her discharge she wrote to Taylor on February 15, 1958, making a demand for two weeks’ severance pay based upon a so-called unwritten law but omitting any reference in her letter to unpaid overtime, although she stated in her testimony at the trial that she had complained about the overtime to the local manager and to Taylor prior thereto. Subsequently, on March 3, 1958, she wrote a second letter to Taylor, again demanding the two weeks’ severance pay and on this occasion calling attention to “many hours of overtime without pay that I have been forced to put in.” As to this particular employee, the trial court found: “Plaintiff and Mrs. Waltman place principal reliance on three day books or daily memoranda prepared by Mrs. Waltman and alleged by her to be a complete and accurate record of the hours worked by her from August, 1956, to February, 1958. “I have examined these time books carefully. Although it is alleged that they were kept on a daily basis, it is perfectly apparent from examining them that they were not so kept. Obviously, substantial blocks of them, covering weeks at a time, were completed at one sitting, and were not kept on a daily basis at all. Even if the other evidence in this claim was not contradictory and of questionable basis, there would be no way of approximating or estimating the exact number of hours claimed to have been worked by her. “These documents, taken in connection with the generally unsatisfactory and unimpressive testimony of Mrs. Waltman herself, force the conclusion that plaintiff has failed to sustain the burden of persuasion that exists in a proceeding of this character.” We, too, have examined Mrs. Waltman’s time books with care and conclude that the trial court’s appraisal of them was amply justified. Additionally, and we think this quite significant, they are established as patently false, at least in the beginning period of her employment. During such period time clocks were used and Mrs. Waltman’s time cards show that daily she checked into work at anywhere from eight a. m. to many minutes late, one time almost an hour late, yet the private record made up by her indicates that she appeared punctually on each one of these days at eight o’clock. The conclusion is forced that her private record was unworthy of belief. In her first letter of complaint regarding her discharge and in which she asked for severance pay, the omission of any reference to overtime is significant. We conclude that the trial court was on a sound basis when it held there was a failure of proof as to this particular employee. We do not find the situation comparable to that referred to by the Supreme Court in Anderson v. Mt. Clemens Pottery Co., 1946, 328 U.S. 680, 66 S.Ct. 1187, 90 L.Ed. 1515, rehearing denied, 329 U.S. 822, 67 S.Ct. 25, 91 L.Ed. 699. There the Supreme Court stated, 328 U.S. at page 687, 66 S.Ct. at page 1192: “In such a situation we hold that an employee has carried out his burden if he proves that he has in fact performed work for which he was improperly compensated and if he produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference. The burden then shifts to the employer to come forward with evidence of the precise amount of work performed or with evidence to negative the reasonableness of the inference to be drawn from the employee’s evidence. If the employer fails to produce such evidence, the court may then award damages to the employee, even though the result be only approximate.” Here the Secretary did not carry out his burden of establishing that Mrs. Wait-man in fact performed work for which she was improperly compensated and accordingly there was no shifting of responsibility to the employer to come forward with evidence as to the precise amount of work performed nor justification or basis to award damages that might be only approximate. No. 16,540 is affirmed. No. 16,541 is reversed with directions to enter the requested injunction. Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained Answer:
songer_direct2	B	What follows is an opinion from a United States Court of Appeals. Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for government tax claim; for person claiming patent or copyright infringement; for the plaintiff alleging the injury; for economic underdog if one party is clearly an underdog in comparison to the other, neither party is clearly an economic underdog; in cases pitting an individual against a business, the individual is presumed to be the economic underdog unless there is a clear indication in the opinion to the contrary; for debtor or bankrupt; for government or private party raising claim of violation of antitrust laws, or party opposing merger; for the economic underdog in private conflict over securities; for individual claiming a benefit from government; for government in disputes over government contracts and government seizure of property; for government regulation in government regulation of business; for greater protection of the environment or greater consumer protection (even if anti-government); for the injured party in admiralty - personal injury; for economic underdog in admiralty and miscellaneous economic cases. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards. CONTINENTAL CASUALTY COMPANY, a Corporation, Appellant, v. The UNITED STATES of America for the Use and Benefit of the ROBERTSON LUMBER COMPANY, a Corporation, Appellee. No. 16912. United States Court of Appeals Eighth Circuit. June 30, 1962. James L. Lamb, of Degnan, Hager, McElroy & Lamb, Grand Forks, N. D., made argument for the appellant and filed brief. John G. Shaft, of Shaft, Benson & Shaft, Grand Forks, N. D., made argument for the appellee and filed brief. Before VAN OOSTERHOUT and BLACKMUN, Circuit Judges, and HENLEY, District Judge. . HENLEY, District Judge. This litigation arose out of the construction of certain housing for military personnel stationed at the Grand Forks Air Force Base, Grand Forks, North Dakota, under the housing program authorized by the Capehart Housing Act, as amended. Appellee, use plaintiff below, furnished materials to the prime contractor engaged in the construction of the housing and not being paid therefor commenced this action against the prime contractor and one of the sureties on the contractor’s statutory payment bond. The contractor did not defend the action. The issues between appellee and the surety were narrowed to a single question of law, and the District Court rendered summary judgment for appellee. United States for the Use and Benefit of the Robertson Lumber Company v. Progressive Contractors, Inc., et al., D.C.N.Dak., 196 F.Supp. 171. This appeal followed. The 1956 amendment to the Capehart Act provided that all contracts for Cape-hart housing “shall provide for the furnishing by the contractor of a performance bond and a payment bond with a surety or sureties satisfactory to the Secretary of Defense, or his designee, and the furnishing of such bonds shall be deemed a sufficient compliance with the provisions of section 270a of Title 40, and no additional bonds shall be required under such section.” The bond in suit was executed on a form specifically prescribed by the contract for the construction of the housing, which form had been adopted by the Department of Defense and by the Federal Housing Commissioner. The bond contained certain provisions for notice to be given by laborers or materialmen as a condition precedent to action on the bond. Admittedly, appellee failed to give the notice required by the bond, and appellant pleaded this failure as a complete defense. In meeting this defense appellee contended that the relationship between the Capehart Act and the Miller Act was such that a supplier of labor or materials to a Capehart housing contractor is entitled to all of the protection of the Miller Act, that the procedural provisions of the Miller Act (40 U.S.C.A. §§ 270b and 270c) extend to bonds executed under the Capehart Act, and that notice requirements inserted in a Capehart bond which are more stringent than the notice requirements of the Miller Act are invalid and are to be ignored. The notice provisions of the bond in suit are in fact more stringent than the notice requirements of the Miller Act, and appellee had met all of the requirements of that Act. Based on those premises appellee urged that the defense set up by appellant was without merit. In attacking the judgment of the District Court appellant takes the position that although the Capehart Act refers to section 1 of the Miller Act, nevertheless a Capehart Act bond is not a Miller Act bond; that the Secretary of Defense or his designee has the powér to prescribe the form and contents of a Capehart bond; that the form here used was prescribed by and satisfactory to the Department of Defense; that the notice provisions contained in the bond were valid, and that compliance therewith was a condition precedent to action on the bond. Alternatively, appellant contends that even if the Secretary and the Federal Housing Commissioner had no right to insert in the bond notice requirements in excess of those contained in the Miller Act, nevertheless such requirements were in fact inserted, and that the liability of the surety should be measured by the terms of the instrument which it actually signed rather than by the terms of the Miller Act. As is well known, the Miller Act, adopted in 1935, has for its purpose the protection of those who supply labor or materials for use in Government construction. Fanderlik-Locke Co. v. United States for Use of Morgan, 10 Cir., 285 F.2d 939; United States for Use and Benefit of Hopper Brothers Quarriers v. Peerless Casualty Co., 8 Cir., 255 F.2d 137; St. Paul-Mercury Indemnity Co. v. United States for Use of Jones, 10 Cir., 238 F.2d 917. The Act, which is to be construed liberally, is designed to give such suppliers the same protection that State lien laws give ordinarily to persons furnishing labor and materials for use in private construction; and since the property of the United States is not subject generally to State lien laws, the bond protection of the Miller Act is in lieu of the liens provided by State law. United States for Use and Benefit of Munroe-Langstroth, Inc. v. Praught, 1 Cir., 270 F.2d 235; United States for Use of Gibson v. Harman, 4 Cir., 192 F.2d 999; United States to Use of Acme Furnace Fitting Co. v. Ft. George G. Meade Defense Housing Corporation, D.C.Md., 186 F.Supp. 639; United States for Use of James F. O’Neil Co. v. Malan Construction Corp., E.D.Tenn., 168 F.Supp. 255. As far as notice is concerned a Miller Act supplier who deals directly with a prime contractor is not required to give any notice as a condition precedent to a suit on the bond, although presumably he will make demand for payment before commencing his suit. Where the supplier deals with a sub-contractor, he is required to give notice to the prime if he expects to recover against the prime and the latter’s surety, but in no event is a Miller Act supplier required to give notice to the surety before commencing suit or, in any event, to give notice to more than one person or entity. 40 U.S.C.A. § 270b(a). The purpose of the Capehart Act was to provide urgently needed housing for military personnel on Government property, and while Capehart housing is undoubtedly “Government housing,” Capehart construction differs from conventional Government construction in certain significant respects. Ordinarily, federal public works are paid for both initially and finally with federal funds. Capehart housing, on the other hand, initially is built and financed by private capital, although loans made by financial institutions to finance the construction are fully insured by the Federal Housing Administration. Both the Department of Defense and the Federal Housing Administration are concerned with the administration of the Capehart program, and the Federal Housing Commissioner has been authorized to promulgate' regulations concerning the program, 12 U.S.C.A. § 1748f, which authority has been exercised, see 24 C.F.R. Part 292a. The Capehart Act now requires both payment and performance bonds, and standard forms of those bonds have been worked out by the Department of Defense and the Federal Housing Administration, and all Capehart housing contracts call for the giving of those particular bonds, as was done in this case. With some allowance for possible oversimplification, a typical Capehart project may be described substantially as follows: A building contractor desiring to build Capehart housing and who has been the successful bidder for such housing, and who has made satisfactory arrangements to secure private financing, forms a corporation to take a long term lease on the Government property on which the housing is to be constructed and to execute a mortgage on the leasehold estate to the financial institution which is to lend the money required for construction purposes. This corporation, which is at all times under complete Government control, does not do the actual building of the housing units. That is done by the contractor under contract with the Government and with the corporation. The functions of the corporation are limited and to some extent nominal. It takes the lease and executes the mortgage and is a party to the construction contract. Further, it is one of the obligees named in the contractor’s performance and payment bonds. In the statute, regulations, and contract documents the contractor is called the “eligible bidder,” the corporation is called the “mortgagor-builder,” and the lending agency is called the '“mortgagee.” As the project is completed, the housing units are turned over to and operated by the Government and are occupied by military personnel. Quarters allowances previously paid to such personnel are retained by the Government and used to pay off the mortgage. When the mortgage is finally retired, the lease to the “mortgagor-builder” is terminated, and that corporation is dissolved, leaving title to the housing in the Government. The contractor derives his profit from doing the actual building of the housing. From the Government’s standpoint, advantages are seen in that federal funds are not expended for initial construction and, while the housing will be paid for eventually with federal money, that money would have been expended in any event as quarters allowances for the affected service personnel. In addition, the program may be supposed to provide a stimulus for private industry and capital. Having made the foregoing comments with regard to the Miller Act and the Capehart Act and the program contemplated by the latter Act, we return to the question for decision which is whether the notice provisions contained in the bond in suit were valid. In holding those provisions invalid the District Court cited Lasley v. United States for Use of Westerman, 5 Cir., 285 F.2d 98; United States to Use of Acme Furnace Fitting Co. v. Ft. George G. Meade Defense Housing Corporation, supra; and Autrey v. Williams & Dunlap, W.D.La., 185 F.Supp. 802. Although none of those cases involved the validity of the notice provisions appearing in Capehart bonds, it may be conceded that when those decisions are broadly read, they tend to support the District Court’s decision in this case since they appear to proceed upon the theory that Capehart contractors and their sureties are subject to the procedural provisions of the Miller Act, including the notice provisions. This theory seems to be based on the premise that prior to the 1956 amendment to the Cape-hart Act, Capehart contractors were subject to all of the provisions of the Miller Act. From that premise it was reasoned that since the 1956 amendment modified only the prior existing substantive obligations of the contractors to furnish bonds meeting the requirements of 40 U.S.C.A. § 270a, the procedural provisions of the other sections of the Miller Act still apply to Capehart housing. See Westerman, supra, 285 F.2d at 100. We find ourselves unable to agree with the Westerman case and the other decisions cited by the District Court and relied upon by appellee. Without necessarily quarreling with the Westerman premise that prior to 1956 Capehart contractors were required to furnish Miller Act bonds, we are of the opinion that when Congress amended the Capehart Act in 1956 it recognized that Capehart housing is not conventional Government construction, that the private construction and financing of Capehart housing and the joint administration of the Cape-hart program by the Department of Defense and the Federal Housing Administration presented'problems not encountered in ordinary Government construction, and that it intended, as far as bond protection for laborers and materialmen is concerned, to treat Capehart housing as sui generis. While we think that Congress intended that Capehart suppliers should have substantive bond protection essentially similar to that afforded Miller Act suppliers, we think also that Congress intended that the procedural provisions of Capehart bonds should be worked out and prescribed by the two agencies involved in the light of the unique nature of Capehart construction and of the peculiar problems which might be encountered in connection with such construction. In our estimation had Congress intended for the procedural provisions of the Miller Act to apply to Cape-hart contractors and their sureties it simply would have said so. The interpretation which we place upon the 1956 amendment to the Act is in harmony with the administrative interpretation which has been placed upon it by the agencies charged with the implementation of the Capehart program. This is evidenced by the fact that the notice provisions in question, and certain other procedural provisions which differ from the procedural provisions of the Miller Act, were inserted in the bond forms by the agencies themselves. It is settled, of course, that in the case of an ambiguous statute, and the 1956 amendment is ambiguous, the interpretation placed upon it by the agencies charged with its enforcement is entitled to great weight. It may be argued plausibly that there should be general uniformity in the procedure required to be followed by Cape-hart suppliers on the one hand and Miller Act suppliers on the other. But, bearing in mind the differences between Cape-hart housing and more familiar types of Government construction, we do not know that absolute procedural uniformity is practicable, just, or desirable. Presumably, the agencies had some valid reason for prescribing dual notice as a condition precedent to action on a Cape-hart bond, although the record before us does not establish affirmatively what that reason was. The view which we take of the case renders it unnecessary for us to pass upon appellant’s alternative contention that in any event its liability must be measured by the terms of the bond as written regardless of whether those terms should have been inserted in the bond. While United States for Use of W. B. Young Supply Co. v. Stewart, 8 Cir., 288 F. 187, the principal case cited by appellant in support of its alternative position, may be distinguished from the instant case, and while other relevant authorities appear to be in conflict, the alternative contention is by no means frivolous in the circumstances here present. But, be that as it may, it is to be remembered that the only section of the Miller Act referred to in the Capehart Act is the section which requires the giving of a bond; and when Congress said in the Capehart Act that the giving of a bond satisfactory to the Secretary of Defense or his designee should constitute compliance with the section of the Miller Act which requires that a bond be given, we think that the clear import of the language used was to take Capehart bonds entirely out of the Miller Act. The judgment appealed from is reversed, and this cause is remanded to the District Court with directions to dismiss the complaint. . Act of August 11, 1955, Public Law 84-345, 69 Stat. 646 fE., as amended by Act of August 7, 1956, Public Law 84-1020, 70 Stat. 1110, 12 U.S.C.A. § 1748 if. and 42 U.S.C.A. § 1594 fE. . 42 U.S.C.A. § 1594. Section 270a of Title 40 U.S.C.A., referred to in the Cape-hart Act, as amended, is section 1 of the Miller Act which requires the giving of performance and payment bonds by contractors engaged in the construction, alteration, or repair of any “public building or public work of the United States”, where the amount of the contract exceeds $2,000. . The prescribed form of Capehart bond which appellant executed required “dual notice” as a condition precedent to suit on the bond. That is to say, a supplier of labor or materials was required to give notice to at least two of the parties to the bond, one of which parties might be the surety. . Specifically, the question before the courts in all of those cases was whether a Cape-hart supplier could sue in federal court by virtue of the grant of federal jurisdiction conferred by the Miller Act. 40 U.S.C.A. § 270b (b). That question was answered in the affirmative in all three cases. However, as was recognized in Westerman, another basis for federal jurisdiction of a suit on a Capehart bond is to be found in 28 U.S.C.A. § 1352 which provides that the State and the federal courts shall have concurrent jurisdiction with resnect to all actions brought on any bonds required by “any law of the United States.” A Capehart bond is clearly a bond required by a “law of the United States,” hence, federal jurisdiction of a suit on such a bond is established without regard to any relationship between the Miller Act and the Capehart Act. The Westerman case was tried on its merits by the writer of this opinion while sitting by special assignment in the Western District of Texas. However, the. jurisdictional question had been passed upon by one of the regular judges of the District. . We have seen no case in which the question was actually presented for adjudication. . Whatever the reason for its existence, the requirement itself is neither unreasonable nor oppressive. There is no suggestion here that Capehart suppliers cannot inspect or obtain copies of Capehart bonds, and counsel for appellant stated without contradiction in the course of the argument that most of the suppliers of labor and materials for the Grand Forks project had in fact given the dual notice and had been paid. . See 43 Am.Jur. Public Works & Contracts, § 147 and authorities there cited. Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained Answer:
songer_counsel1	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 appellant. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party CLARK, Atty. Gen. v. E. J. LAVINO & CO. No. 9709. United States Court of Appeals Third Circuit. Argued Feb. 7, 1949. Decided June 1, 1949. See also 72 F.Supp. 497. Joseph W. Bishop, Jr., Washington. D. C. (David L. Bazelon, Asst. Atty. Gen., Gerald A. Gleeson, U. S. Atty., James P. McCormick, Asst. U. S. Atty., Philadelphia, Pa., James L. Morrisson, Washington, D. C., Attorneys, Department of Justice, on the brief), for appellant. Joseph W. Henderson, Philadelphia, Pa. (Rawle & Henderson, Philadelphia, Pa., Thomas F. Mount, Philadelphia, Pa., on the brief), for appellee. Before BIGGS, Chief Judge, and O’CONNELL and KALODNER, Circuit Judges. BIGGS, Chief Judge. The Attorney General, the Honorable Tom C. Clark, as successor to the Alien Property Custodian, has appealed from the judgment of the court below directing E. J. Lavino & Company (“Lavino”) to turn over and deliver to the Custodian the sum of $25,000, insofar as the judgment failed to award interest. In July, 1941 Lavino became indebted to Kawasaki Kisen Kaisha, Ltd. (“Kawasaki”), a Japanese shipping corporation, for $72,753.27, the sum representing freight charges for the carriage of freight in one of the latter’s vessels. Lavino paid Kawasaki $47,753.27 but retained $25,000, claiming this amount as a set-off against damages which Lavino' asserted it sustained because of Kawasaki’s breach of a prior contract in failing to deliver to Lavino a shipment of chrome ore, whereby, Lavino alleges, it was damaged- to the extent of $24,-759. On July 30, 1942 the Custodian, having determined that Kawasaki was an enemy national within the meaning of the Trading with the Enemy Act, 50 U.S.C.A.Appendix, § 1 et seq., issued two vesting orders, No. 77 and No. 80, by virtue of which all property of any nature whatsoever owned or controlled by, payable or deliverable to Kawasaki Kisen Kaisha, Ltd. and to Kawasaki Kisen Kabushiki Kaisha, another Japanese corporation, or to their American branches, vested in the Custodian. These vesting orders were served on Lavino on August 7, 1946. On September 12, 1946 the Custodian issued a turnover directive to Lavino, directing it to pay $25,000 to the Custodian, this sum, as we have said, being the balance due Kawasaki' for transportation of freight. The order was served on Lavino on October 15, 1946. Upon Lavino’s refusal to comply with the directive, the Custodian filed a petition in the court below, pursuant to Section 17 of the Trading with the Enemy Act, 50 U.S.C.A.Appendix § 17, in which he prayed that an order be entered requiring Lavino to “ * * * deliver $25,000 with interest thereon from September 5, 1942 to the petitioner * * * In its answer Lavino set forth its claim of set-off claiming damages by reason of alleged prior breach of contract but admitted that $241 was due Kawasaki. This amount is the difference between the $25,000 retained by Lavino and its claimed damages of $24,-759. Lavino asserted that it stood ready and willing to turn over the $241 to the Custodian. The court below entered judgment for the Custodian for $25,000 and interest from September 5, 1942. Lavino then moved to vacate -the judgment, contending that the Custodian was not -entitled to interest. The -court vacated the order, and, after a rehearing on the sole question of interest, entered judgment directing that the “ * * * respondent [Lavino] forthwith turn over and deliver to the petitioner [the Custodian] the sum of $25,000”, interest being omitted from the judgment. The Custodian has -appealed, contending (1) that he is entitled to interest at a reasonable rate on the amount of $25,000 from October 15, 1946 (the date of the service of the turnover directive) to the date of Lavino’s compliance therewith, and (2) that he is entitled to interest at 6% on the sum of $25,000 from July 1, 1941 (the date Lavino became indebted for transportation to Kawasaki) until October 15, 1946 (the date of service of the turnover directive). Contention (2), supra, is based on the law of Pennsylvania which provides that interest at 6% accumulates on indebtedness from the date the debt should have been paid. Lavino for its part contends that the suit is possessory in character; that its purpose is to compel the transfer of a debt, and that under the Act the court below had no authority to do more than to direct the transfer to the Custodian of an amount of money equivalent to the debt. It follows, says Lavino, that the Custodian is not entitled to interest as a matter of law, citing Clark v. Manufacturers Trust Company, 2 Cir., 169 F.2d 932, 936, certiorari denied 335 U.S. 910, 69 S.Ct. 480. The narrow question presented by the instant appeal is whether the Custodian is entitled to interest, and, if so, from what beginning date. The Act makes no provision for payment of interest where, as here, there is noncompliance with the Custodian’s demand that enemy property be turned over to him. In Clark v. Manufacturers Trust Co., supra, under circumstances analogous to those at bar the Court of Appeals for the Second Circuit held, one judge dissenting, that there is “ * * * no reason to suppose that Congress intended the Custodian to get interest during the period elapsing between his demand for payment and the entry of judgment.” We cannot agree. Although Congress did not deal with interest in the Act the absence of an express provision respecting it does not preclude its award. In Board of Com’rs v. United States, 308 U.S. 343, 349, 350, 60 S.Ct. 285, 287, 84 L.Ed. 313, where, as in the instant case, the question was the right of the United States to collect interest prior to judgment in a suit to recover taxes wrongfully collected from an Indian ward of the United States by a county of the State of Kansas, the Supreme Court, speaking through Mr. Justice Frankfurter, pointed out that, “The issue is uncontrolled by any formal expression of the will of Congress.,” and said, “In ordinary suits where the Government seeks, as between itself and a private litigant, to enforce a money claim ultimately derived from a federal law, thus implying a wish of Congress to collect what it deemed fairly owing according to the traditional notions of Anglo-American law, this Court has chosen that rule as to interest which comports best with general notions of equity. United States v. Sandborn, 135 U.S. 271, 281, 10 S.Ct. 812, 815, 34 L.Ed. 112; Billings v. United States, 232 U.S. 261, 34 S.Ct. 421, 58 L.Ed. 596. Instead of choosing a rigid rule, the Court has drawn upon those flexible considerations of equity which are established sources for judicial law-making.” Compare also Rodgers v. United States, 332 U.S. 371, 373, 68 S.Ct. 5, 92 L.Ed. 3; Royal Indemnity Co. v. United States, 313 U.S. 289, 295, 296, 61 S.Ct. 995, 85 L.Ed. 1361. The Act creates the obligation to turn over on demand the property of the alien, not only to keep such property from being used for the benfit of the enemy but also to “affirmatively compel the use and application of foreign property” in “the interest of and for the benefit of the United States.” See H. R. Rep. No. 1507, 77th Cong., 1st Sess. pp. 2-3; 55 Stat. 839, 50 U.S.C.Appendix, § 5(b) (1). When the Custodian served his turnover directive upon Lavino the latter had an immediate duty to comply. The statute requires an immediate transfer of the property to the Custodian without resort to the courts by the holders of the property. On surrender of the property Lavino could have at once filed suit under Section 9 of the Act, 50 U.S.C.A.Appendix, § 9, and in that proceeding could have litigated fully and adequately its claim of set-off. See Stoehr v. Wallace, 255 U.S. 239, 245, 246, 41 S.Ct. 293, 65 L.Ed. 604, and Central Trust Co. v. Garvan, 254 U.S. 554, 566-568, 41 S.Ct. 214, 215, 65 L.Ed. 403. As was said in the Garvan case, “The occasion of the duty is a demand after a determination by the-President and it is hard to give much meaning to the words ‘which the President after investigation shall determine is so ' * * * held’ unless the determination and demand call the duty into being.” Lavino, in disregard of that legal duty, refused- to comply with the turnover directive, retáining the ' sum ■ of $25,000, though Congress had created a remedy adequate for its relief in Section 9 of the Act. Lavino had the use of the money during the period of retention. We conclude that the United States is entitled to interest from the date of service of the demand, viz., October 15, 1946, to the date of the judgment of the court below. To hold otherwise would place a premium upon disobedience to the mandate of the statute and reward the recalcitrant. See the cases cited, supra, and the brief dissent of Judge Clark in the Manufacturers Trust Co. case, supra. We cannot agree with the contention of the Custodian that the law of Pennsylvania has -any application here. We are adjudicating a federal question arising under an Act of Congress, and, in the absence of an applicable federal statute, it is for the federal court to aw;afd, according to its own criteria, appropriate damages expressed in terms of interest. Compare Royal Indemnity Co. v. United States, supra, 313 U.S. at page 296, 61 S.Ct. 995, 85 L.Ed. 1361. As the duty to transfer the property arises only on demand by the Custodian, such a demand, followed by non-compliance, constitutes - the condition precedent necessary to accrual of interest on the debt for the benefit of the Custodian. But there is no statute and no acceptable legal theory which would award interest prior to the Custodian’s demand. Indeed to award the Custodian interest on the sum demanded prior to the date of the turnover directive would penalize the debtor for delays by the Custodian wholly beyond the debtor’s control. To impose such a burden on the debt- or would not be just. The judgment of the court below will be reversed with the direction to award interest on the sum of $25,000 from the date of service of the turnover directive, viz., October 15, 1946 to the date of judgment in the court below. Interest on the judgment when modified should of course follow the usual rule. By Executive Order No. 9788, effective October 15, 1946, 11 F.R. 11981, 50 U.S.C.A.Appendix, § 6 note, the'Attorney General succeeded to the powers and duties of the Alien Property Custodian. For the purpose of convenience we shall employ the term “Custodian” as referring either to the Alien Property Custodian or to the Attorney General. Though the turnover directive re-required Lavino to turn over the “. . . property with all dividends, accumulations and increment thereon . . .", there is no showing that the fund received any accumulations or increment or that Lavino received any dividends. The notice of appeal raises but one question: viz., the failure to award interest in the judgment. Tbe relation of this Japanese corporation to Kawasaki Kisen Kaisha Ltd. does not appear from the record. No question concerning the status of the second Japanese corporation is raised by the parties. Section 17 provides as follows: “The district courts of the United States are hereby given jurisdiction to make and enter all such rules as to notice and otherwise, and all such orders and decrees, and to issue such process as may be necessary and proper in the premises to enforce the provisions of this Act, with a right of appeal from the final order or decree of such court * * The Custodian contends that under Rule 54(c) of the Federal Rules of Civil Procedure, 28 U.S.C.A., the court below should have granted him the relief to which he was entitled even though he demanded interest on the $25,000 only from September 5, 1942. See, however, Section 16 of the Act, 50 U.S.C.A.Appendix, § 16, which provides that “Whoever shall wilfully . . . refuse to comply with any order of the President issued in compliance with the provisions of this act, shall, upon conviction be lined not more than $10,000, or, if a natural person, be imprisoned for not more than ten years, or both.” In this connection see Stoehr v. Wallace, 255 U.S. 239, 245, 41 S.Ct. 293, 65 L.Ed. 604. Interst on the judgment is not in issue here. Question: What is the nature of the counsel for the appellant? 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	A	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. SANBORN v. HELVERING, Com’r of Internal Revenue. No. 11550. Circuit Court of Appeals, Eighth Circuit. Jan. 5, 1940. Rehearing Denied Jan. 23, 1940. Charles E. Whittaker, of Kansas City, Mo. (Henry N. Ess and Watson, Ess, Groner, Barnett & Whittaker, all of Kansas City, Mo., on the brief), for petitioner. Harry Marselli, Sp. Asst, to Atty. Gen. (Samuel O. Clark, Jr., Asst. Atty. Gen., and Sewall Key, Sp. Asst, to Atty. Gen., on the brief), for respondent. Before STONE, SANBORN, and THOMAS, Circuit Judges. SANBORN, Circuit Judge. This is a proceeding to review a decision of the Board of Tax Appeals (39 B.T.A. 721) sustaining the liability asserted against Marie Minor Sanborn, “as transferee and/or fiduciary”, for a deficiency in income taxes of the estate of her father, William E. Minor, for the year 1929, which she contends is barred by the" statute of limitations. The facts are stipulated. William E. Minor, a resident of Kansas City, Missouri, died December 15, 1928. The petitioner and J. A. Minor were appointed executrix and executor of his estate January 2, 1929, by the Probate Court of Jackson County, Missouri. On March 4, 1930, the petitioner, as executrix, was granted an extension of time to May 15, 1930, within which to file the income tax return of the estate for 1929. On March 31, 1930, the petitioner, as executrix, and J. A. Minor, as executor, received their discharge from the Probate Court. On April 9, 1930, “Mrs. Marie M. Sanborn, Executrix, Estate of Dr W. E. Minor, Deceased,” filed an income tax return of the estate for the year 1929. The return was verified on April 8, 1930, by the petitioner and J. A. Minor as “Executors”. April 8, 1932, the Commissioner, by letter, proposed a deficiency in income taxes of the estate for 1929 of $34,543.16. On May 27, 1932, the petitioner and J. A. Minor, as “former executrix and executor” of the estate, filed with the Board a petition for redetermination of the proposed deficiency. In their petition they recited that they “were the executrix and executor of the Estate of Dr. William E. Minor, Deceased, under the will, until discharged upon the closing of the estate March 31, 1930.” The petition was served upon the Commissioner the day it was filed. In his answer thereto, he admitted the discharge of the executors on March 31, 1930, as alleged in the petition. The proceeding before the Board was entitled, “Marie Minor Sanborn and J. A. Minor, former executrix and executor of the Estate of Dr. William E. Minor, Petitioners, v. Commissioner of Internal Revenue, Respondent.” Thereafter the Board determined that .the amount of the deficiency in income taxes of the estate for the year 1929 was $22,295.50. On June 25, 1936, the petitioner and J. A. Minor, “as former executrix and executor” of the estate, filed a petition with this Court for a review of the decision of the Board. This Court affirmed. 8 Cir., 88 F.2d 134. A petition for certiorari was denied, 301 U.S. 700, 57 S.Ct. 930, 81 L.Ed. 1355, on May 24, 1937. On July 17, 1936, the Commissioner assessed the amount of the deficiency as determined by the Board, together with interest, against the estate of William E. Minor. A warrant of distraint against the estate was issued on August 10, 1936, and was returned unsatisfied, with the statement that the estate had been distributed and there were no assets out of which the tax could be satisfied. The petitioner had received from the estate property worth approximately $500,000. On September 22, 1937, the Commissioner sent a notice to the petitioner proposing to assess against her, as a transferee of assets of the estate “and/or as fiduciary of the estate of William E. Minor, deceased,” the tax which had been assessed against the estate, with interest. She appealed to the Board, asserting that her liability, as transferee and fiduciary, for the tax against the estate was barred by limitations. The Board ruled against her. The applicable Revenue Act is that of 1928, c. 852, 45 Stat. 791. Section 275(a) of that Act, 26 U.S.C.A. § 275 note, provides : “The amount of income taxes imposed by this title shall be assessed within two years after the return was filed, and no proceeding in court without assessment for the collection of such taxes shall be begun after the expiration of such period.” Section 276(a), 26 U.S.C.A. § 276 (a) provides: “In the case of * * * a failure to file a return the tax may be assessed, or a proceeding in court for the collection of such tax may be begun without assessment, at any time.” Section 276 (c) provides: “Where the assessment of any income tax imposed by this title [chapter] has been made within the period of limitation properly applicable thereto, such tax may be collected by distraint or by a proceeding in court, but only if begun (1) within six years after the assessment of the tax, * * * .” Section 277, 26 U.S.C.A. § 277, provides: “The running of the statute of limitations provided in section 275 or 276 * * * shall (after the mailing of a notice under section 272(a)) be suspended for the period during which the Commissioner is prohibited from making the assessment or beginning distraint or a proceeding in court (and in any event, if a proceeding in respect of the deficiency is placed on the docket of the Board, until the decision of the Board becomes final), and for sixty days thereafter.” Section 272(h), 26 U.S.C.A. § 272(h), provides that the date on which a decision of the Board of Tax Appeals becomes final shall be determined according to the provisions of Section 1005 of the Revenue Act of 1926. Section 1005(a) (3) of the Revenue Act of 1926, c. 27, 44 Stat. 9, 110, 26 U.S.C.A. § 640 (a, b), provides that a decision of the Board becomes final upon denial of a petition for certiorari by the Supreme Court. Section 311 of the Revenue Act of 1928,. 26 U.S.C.A. § 311, provides that the liability of an initial transferee shall be assessed not later than one year after the expiration of the period for assessment against the taxpayer; that the liability of a fiduciary shall be assessed not later than, one year after it arises or not later than the expiration of the period for collection of the tax, whichever is later; and that if the taxpayer is deceased the period of limitation for assessment shall be the samo as would be in effect had death not occurred.' Section 312(a) and (c) of the Revenue-Act of 1928, 26 U.S.C.A. § 312(a, c), provides : “(a) Fiduciary of taxpayer. Upon notice to the Commissioner that any person is acting in a fiduciary capacity such fiduciary shall assume the powers, rights, duties, and privileges of the taxpayer in respect of a tax imposed by this title [chapter] (except as otherwise specifically provided and except that the tax shall be collected from the estate of the taxpayer), until notice is given that the fiduciary capacity has terminated. ****** “(c) Manner of notice. Notice under subsection (a) or (b) shall be given in accordance with regulations prescribed by the Commissioner with the approval of the Secretary [of the Treasury].” Treasury. Regulations 74, Art. 1241, provides that the notice of termination of fiduciary capacity referred to in Section 312 shall be a written notice signed by the fiduciary and filed with the Commissioner, and that “when the fiduciary capacity has terminated, the fiduciary in order to be relieved of any further duty or liability as such, must file with the Commissioner written notice that the fiduciary capacity has terminated as to him, accompanied by satisfactory evidence of the termination of the fiduciary -capacity.” The petitioner’s argument is, in substance, as follows: That the executors on March 31, 1930, when they were discharged, became functi officio and were without capacity to represent the estate, but, because they had given to the Commissioner no notice of their discharge, they were, by virtue of Section 312(a), clothed with the power and duty to file an income tax return for the estate, which was done on April 9, 1930; that the filing of this return was therefore effective to start the statute of limitations running against the assessment and collection of the income tax owed by the estate; that the petition which the discharged executors filed with the Board on May 27, 1932, for a redetermination of the deficiency proposed by the Commissioner against the estate, did not suspend the running of the statute of limitations because it contained notice to the Commissioner of their discharge and he conceded their discharge in his answer; that, having notice of the termination of their fiduciary capacity, the Commissioner was not disabled by the proceeding with respect to the deficiency from assessing it against the estate and against transferees “and/or” fiduciaries, and the proceeding did not extend* the time within which the assessment and collection of tax could be made; and that, the time having run from April 9, 1930, without interruption, the proposed assessment of the tax against the petitioner came too late. It is to be noted that, while the petitioner invokes the aid of Section 312(a) in order to demonstrate that the executors had authority to file a return for the estate on April 9, 1930, she fails to give that statute full effect when she deals with the petition filed with the Board on May 27, 1932. It is'certain that if Section 312(a) empowered the executors to file a return for the estate after, their discharge, it also empowered them to initiate the proceeding with respect to the deficiency in income tax of the estate proposed by the Commissioner. Having been properly initiated, that proceeding, until finally terminated, suspended the running of the statute of limitations. Since the executors never gave the notice required by Section 312(a) and (c) to divest themselves of the powers and duties of the taxpayer with respect to the tax, they were clothed with such powers and duties at all times during the pendency of the proceeding initiated by them before the Board and thereafter. The statute clearly provides for the continuation of the powers and duties of a fiduciary with respect to a tax until a specified notice is given. It does not provide that notice of termination of fiduciary capacity contained in a petition filed with the Board shall be deemed the equivalent of the statutory notice. It does not authorize the Commissioner to waive the statutory notice. His admission that a fiduciary has been discharged is not an admission that the statutory responsibility of that fiduciary with respect to a tax has been terminated. We are satisfied that the proceeding before the Board initiated May 27, 1932, suspended the running of the statute and that the liability of the petitioner for the tax against the estate is not barred by limitations. The order of the Board is affirmed. 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_casedisposition	I	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed. The information relevant to this variable may be found near the end of the summary that begins on the title page of each case, or preferably at the very end of the opinion of the Court. For cases in which the Court granted a motion to dismiss, consider "petition denied or appeal dismissed". There is "no disposition" if the Court denied a motion to dismiss. UNITED STATES v. SISSON No. 305. Argued January 20-21, 1970 Decided June 29, 1970 Solicitor General Griswold argued the cause for the United States. With him on the brief were Assistant Attorney General Wilson, Francis X. Beytagh, Jr., Beatrice Rosenberg, and Roger A. Pauley. John G. S. Flym argued the cause and filed a brief for appellee. Briefs of amici curiae were filed by William G. Smith for the Los Angeles Selective Service Law Panel; by Norman Leonard for the Lawyers’ Selective Service Panel of San Francisco; by Joseph B. Robison for the American Jewish Congress; by Samuel Rabinove and George Berlstein for the American Jewish Committee; by Herman Schwartz, Marvin M. Karpatkin, and Melvin L. Wulf for the American Humanist Assn, et al.; by Leo Rosen, Edward S. Greenbaum, and Nancy F. Wechsler for the American Ethical Union, and by Frank P. Slaninger, pro se. Mr. Justice Harlan delivered the opinion of the Court. The Government seeks to appeal to this Court a decision by a District Court in Massachusetts holding that appellee Sisson could not be criminally convicted for refusing induction into the Armed Forces. TheJDistrict Court’s opinion was bottomed on what that..court-understood to be Sisson’s rights of conscience as a nonreligious objector to the Vietnam war, but not wars in general, under the Free Exercise and Establishment Clauses of the First Amendment and the Due Process Clause of the Fifth Amendment to the Constitution of the United States. The District Court’s primary conclusion, reached after a full trial, was that the Constitution prohibited “the application of the 1967 draft act to Sisson to require him to render combat service in Vietnam” because as a “sincerely conscientious man,” Sisson’s interest in not killing in the Vietnam conflict outweighed “the country’s present need for him to be so employed,” 297 F. Supp. 902, 910 (1969). The District Court characterized its own decision as an arrest of judgment, and the Government seeks review here pursuant to the “arresting judgment” provision of the Criminal Appeals Act, 18 U. S. C. § 3731, an Act that narrowly limits the Government’s right to appeal in criminal cases to certain types of decisions. On October 13, 1969, this Court entered an order postponing further consideration of the question of jurisdiction to the hearing of the case on the merits, 396 U. S. 812 (1969). For reasons that we elaborate in what follows, we conclude that the decision below, depending as it does on facts developed at Sisson’s trial, is not an arrest of judgment but instead is a directed acquittal. As such, it is not a decision that the Government can appeal. Consequently, this appeal must be dismissed for lack of jurisdiction without our considering the merits of this case. We, of course, intimate no view concerning the correctness of the legal theory by which the District Court evaluated the facts developed at the trial. As a predicate for our conclusion that we have no jurisdiction to entertain the Government’s appeal, a full statement of the proceedings below is desirable. I A single-count indictment charged that Sisson "did unlawfully, knowingly and wilfully fail and neglect and refuse to perform a duty” imposed by the Military Selective Service Act of 1967 and its regulations, in violation of § 12 of the Act, 81 Stat. 105, 50 U. S. C. App. § 462 (a) (1964 ed., Supp. IV), because he failed to obey an order by his local draft board to submit to induction. Prior to trial, Sisson’s attorney moved to dismiss the indictment on three grounds. It was claimed that Sisson’s refusal to submit to induction was justified first, because “the government’s military involvement in Vietnam violates international law”; and, second, because Sisson “reasonably believed the government’s military involvement in Vietnam to be illegal.” As a third ground, Sisson claimed that the Selective Service Act and its regulations were unconstitutional (a) because the procedures followed by local boards lacked due process; and (b) because compulsory conscription during peacetime was unnecessary and stifled fundamental personal liberties. In support of the motion to dismiss, appellee stated: “At the time I refused to submit to induction into the armed forces I believed, as I believe today, that the United States military involvement in Vietnam is illegal under international law as well as under the Constitution and treaties of the United States. I believed then, and still believe, that my participation in that war would violate the spirit and the letter of the Nuremberg Charter. On the basis of my knowledge of that war, I could not participate in it without doing violence to the dictates of my conscience.” At the hearing on appellee’s motion to dismiss, the District Judge said that he had “an open mind” concerning appellee’s first and third grounds. However, the court said there was “nothing to” the second ground, noting that what “the defendant reasonably believes... cannot be raised in the way that you propose... because that does not appear on the face of the indictment.” (App. 49.) The District Court later amplified this conclusion by saying: “Point 2 is plainly premature because nobody can test the issue as to whether defendant reasonably believes the government’s military involvement in Vietnam is illegal without knowing what he reasonably believed, and what he believed is a question of evidence and not a question which appears on the face of the indictment.” (App. 52.) (Emphasis supplied.) Defense counsel did not dispute the District Court’s analysis, and noted that he had raised the issue in his motion to dismiss only “in the interest of economy,” because “[i]t was not clear at the time I filed the motion that the government would challenge this fact.” (App. 52.) The court expressed doubts concerning the Government’s willingness to concede this fact, and, when asked by the court, the government counsel specifically stated his opposition to the motion to dismiss. The court thereupon found the “second ground” of the motion to dismiss without merit. A short time after this hearing, the District Court issued two written opinions, 294 F. Supp. 511 and 515 (1968), that denied the other grounds of the motion to dismiss. After determining that appellee had the requisite standing to raise the issues involved, the court held that the political question doctrine foreclosed consideration of whether Congress could constitutionally draft for an undeclared war, or could order Sisson to fight in the allegedly “genocidal war.” An order accompanying the second pretrial opinion also dealt with various offers of proof that defense counsel had made in an informal letter to the court, not part of the record. From the order it appears that appellee’s counsel stated he would “offer evidence to show that [Sisson] properly refused to be inducted on the basis of his right of conscience, both statutory and constitutional.” Not understanding the scope of this rather ambiguous offer of proof, the District Court in its order ruled that if Sisson wished to make a conscientious objector claim based on religious objections not to wars in general but to the Vietnam war in particular, Sisson should make his offer of proof initially to the judge “to elicit a ruling whether the First Amendment precludes the Congress from requiring one who has religious conscientious objections to the Vietnam war to respond to the induction order he received. If the Court rules favorably to defendant on the Constitutional issue of law, then both defense and prosecution are entitled to submit to the trier of fact evidence relevant to the question whether defendant indeed is a religious conscientious objector to the Vietnam war.” 294 F. Supp., at 519. At the trial, however, it appears that defense counsel did not try to prove that Sisson should have received a conscientious objector exemption, nor did he request a ruling on the First Amendment issues referred to by the trial court. Instead it seems that the defense strategy was to prove that Sisson believed the Vietnam war to be illegal under domestic and international law, and that this belief was reasonable. If unable to get a direct adjudication of the legality of the war, the defense at least hoped to convince the jury that Sisson lacked the requisite intent to “wilfully” refuse induction. There was evidence submitted at the trial that did bear on the conscientious objector issue, however. When asked why he had refused induction, Sisson emphasized that he thought the war illegal. He also said that he felt the Vietnam war was “immoral,” “illegal,” and “unjust,” and went against “my principles and my best sense of what was right.” The court asked Sisson what the basis for his conclusions was, particularly what Sisson meant when he said the war was immoral. Sisson said that the war violated his feelings about (1) respect for human life, (2) value of man’s freedom, and (3) the scale of destruction and killing consonant with the stated purposes of American intervention. Sisson also stated, in response to the trial judge’s question, that his “moral values come from the same sources [the trial court had] mentioned, religious writings, philosophical beliefs.” The prosecution did not allow Sisson’s testimony to stand without cross-examination. In apparent reliance on the court’s pretrial ruling that Sisson’s beliefs concerning the war were irrelevant to the question of whether his refusal to submit to induction was wilful the government counsel concentrated on showing that Sisson had refused induction deliberately, of his own free will, and knowing the consequences. The prosecution also brought out that Sisson had failed to appeal his I-A classification when it had been issued, and that he had accepted, as an undergraduate, a II-S student classification. In the final arguments to the jury, just as in the opening statements, neither counsel mentioned a religious or nonreligious conscientious objector issue. The defense argued that the key to the case was whether Sisson had “wilfully” refused to submit to induction, and tried to suggest his beliefs about the war were relevant to this. The government lawyer simply pointed out the operative facts of Sisson’s refusal. He also attacked Sisson’s sincerity by pointing out the inconsistency between Sissons’ broad statements that he opposed deferments because they discriminated against the poor, see n. 2, supra, and his willingness to accept a II-S deferment while he was at Harvard College. (See App. 187-188.) The instructions to the jury made no reference to a conscientious objector claim, and the jury was not asked to find whether Sisson was “sincere” in his moral beliefs concerning the war. Instead the trial court told the jury that the crux of the case was whether Sisson’s refusal to submit to induction was “unlawfully, knowingly and wilfully” done, The jury, after deliberating about 20 minutes, brought in a verdict of guilty. After the trial, the defendant made a timely motion under Fed. Rule Crim. Proc. 34 to arrest the judgment on the ground that the District Court lacked jurisdiction. Pointing to the fact that the District Court had ruled before the trial that the political question doctrine prevented its consideration of defenses requiring an adjudication of the legality of the Vietnam war, the defense argued that the court therefore lacked jurisdiction under Article III and the Due Process Clause to try the defendant for an offense to which the illegality of the war might provide a defense. The District Court, in granting what it termed a motion in arrest of judgment, did not rule on the jurisdictional argument raised in the defense motion. Instead, the court ruled on what it termed defendant’s “older contention” that the indictment did not charge an offense based on defendant’s “never-abandoned” Establishment, Free Exercise, and Due Process Clause arguments relating to conscientious objections to the Vietnam war. The court first stated the facts of the case, in effect making findings essential to its decision. The opinion describes how Sisson’s demeanor on the stand convinced the court of his sincerity. The court stated that “Sisson’s table of ultimate values is moral and ethical... [and] reflects quite as real, pervasive, durable, and commendable a marshalling of priorities as a formal religion.” The critical finding for what followed was that: “What another derives from the discipline of a church, Sisson derives from the discipline of conscience. “... Sisson bore the burden of proving by objective evidence that he was sincere. He was as genuinely and profoundly governed by his conscience as would have been a martyr obedient to an orthodox religion.” 297 F. Supp., at 905. Building on these findings, the court first held that the Free Exercise and Due Process Clauses “prohibit the application of the 1967 draft act to Sisson to require him to render combat service in Vietnam” because as a “sincerely conscientious man,” Sisson’s interest in not killing in the Vietnam conflict outweighed “the country’s present need for him to be so employed.” The District Court also ruled that § 6 (j) of the Selective Service Act, 50 U. S. C. App. §456 (j) (1964 ed., Supp. IV), offends the Establishment Clause because it “unconstitutionally discriminated against atheists, agnostics, and men, like Sisson, who, whether they be religious or not, are motivated in their objection to the draft by profound moral beliefs which constitute the central convictions of their beings.” 297 F. Supp., at 911. II The Government bases its claim that this Court has jurisdiction to review the District Court’s decision exclusively on the “arresting judgment” provision of the Criminal Appeals Act, 18 U. S. C. § 3731 The relevant statutory language provides: “An appeal may be taken by and on behalf of the United States from the district courts direct to the Supreme Court of the United States in all criminal cases in the following instances: “From a decision arresting a judgment of conviction for insufficiency of the indictment or information, where such decision is based upon the invalidity or construction of the statute upon which the indictment or information is founded/’ Thus, three requirements must be met for this Court to have jurisdiction under this provision. First, the decision of the District Court must be one “arresting a judgment of conviction.” Second, the arrest of judgment must be for the “insufficiency of the indictment or information.” And third, the decision must be “based upon the invalidity or construction of the statute upon which the indictment or information is founded.” Because the District Court’s decision rests on facts not alleged in the indictment but instead inferred by the court from the evidence adduced at trial, we conclude that neither the first nor second requirement is met. A We begin with the first requirement: was the decision below one “arresting a judgment of conviction”? In using that phrase in the Criminal Appeals Act, Congress did not, of course, invent a new procedural classification. Instead, Congress acted against a common-law background that gave the statutory phrase a well-defined and limited meaning. An arrest of judgment was the technical term describing the act of a trial, judge refusing to enter judgment on the verdict because of an error appearing on the face of the record that rendered the judgment invalid. 3 W. Blackstone, Commentaries *393; 3 H. Stephen, New Commentaries on the Laws of England 628 (1st Am. ed. 1845); 2 J. Bishop, New Criminal Procedure § 1285 (2d ed. 1913). For the purpose of this case the critical requirement is that a judgment can be arrested only on the basis of error appearing on the “face of the record,” and not on the basis of proof offered at trial. This requirement can be found in early English common-law cases. In Sutton v. Bishop, 4 Burr. 2283, 2287, 98 Eng. Rep. 191, 193 (K. B. 1769), it was stated: “[T]he Court ought not to arrest judgments upon matters not appearing upon the face of the record; but are to judge upon the record itself.” Once transported to the United States, this essential limitation of arrests of judgment was explicitly acknowledged by this Court. In United States v. Klintock, 5 Wheat. 144, 149 (1820), the Court stated that “judgment can be arrested only for errors apparent on the record.” And later in Bond v. Dustin, 112 U. S. 604 (1884), the Court said, “[A] motion in arrest of judgment can only be maintained for a defect apparent upon the face of the record, and the evidence is no part of the record for this purpose,” id., at 608. See Carter v. Bennett, 15 How. 354, 356-357 (1854); United States v. Norris, 281 U. S. 619 (1930). This venerable requirement of the common law has been preserved under the Federal Rules of Criminal Procedure, for the courts have uniformly held that in granting a motion in arrest of judgment under Rule 34, a district court must not look beyond the face of the record. E. g., United States v. Zisblatt, 172 F. 2d 740 (C. A. 2d Cir.), appeal dismissed on Government’s motion, 336 U. S. 934 (1949); United States v. Lias, 173 F. 2d 685 (C. A. 4th Cir. 1949); United States v. Bradford, 194 F. 2d 197 (C. A. 2d Cir. 1952). See 2 C. Wright, Federal Practice and Procedure § 571 (1969); 5 L. Orfield, Criminal Procedure Under the Federal Rules § 34:7 (1967). Therefore, whether we interpret the statutory phrase “decision arresting a judgment” as speaking “to the law, as it then was [in 1907]... as it had come down from the past,” or do no more than interpret it as simply imposing the standards of Fed. Rule Crim. Proc. 34, a decision based on evidence adduced at trial cannot be one arresting judgment. The court below clearly went beyond the “face of the record” in reaching its decision. As noted earlier, the opinion explicitly relies upon the evidence adduced at the trial, including demeanor evidence, for its findings that Sisson was “sincere” and that he was “as genuinely and profoundly governed by his conscience” as a religious conscientious objector. To avoid the inescapable conclusion that the District Court's opinion was not an arrest of judgment, the Government makes two arguments. First, the Government suggests that these factual findings of the District Court, based on the evidence presented at trial, were not essential to its constitutional rulings, but instead only part of “the circumstantial framework” of the opinion below. (Jurisdictional Statement 9; see Brief 8.) This cannot withstand analysis, however, for the factual findings were absolutely essential, under the District Court’s own legal theory, to its disposition of the case. Without a finding that Sisson was sincerely and fundamentally opposed to participation in the Vietnam conflict, the District Court could not have ruled that under the Due Process and Free Exercise Clauses Sisson’s interest in not serving in Vietnam outweighed the Government’s need to draft him for such service. Second, the Government argues that even though the District Court made findings on evidence adduced at trial, the facts relied on were “undisputed.” Adopting the language used by the court below, the Government claims that “in substance the case arises upon an agreed statement of facts.” 297 F. Supp., at 904. The Government then goes on to argue that decisions of this Court have “recognized that a stipulation of facts by the parties in a criminal case” can be relied on by the District Court without affecting the jurisdiction for an appeal, citing United States v. Halseth, 342 U. S. 277 (1952), and United States v. Fruehauf, 365 U. S. 146 (1961). The Government then concludes that it would be exalting form over substance to hold there was no appeal in a case where the Government has not contested the facts, and yet allow an appeal to lie from a motion to dismiss resting upon a stipulation of the parties. Preliminarily, it should be noted that this Court has never held that an appeal lies from a decision which depends, not upon the sufficiency of the indictment alone, but also on a stipulation of the parties. In Halseth the parties did enter into a stipulation for purposes of a motion to dismiss. But the facts in the stipulation were irrelevant to the legal issue of whether the federal anti-lottery statute reached a game not yet in existence. Therefore, neither the District Court in dismissing the indictment, nor this Court in affirming its decision, had to rely on the stipulation. And, for purposes of deciding whether jurisdiction for an appeal under § 3731 existed, the Court obviously did not have to decide — and it did not discuss — whether reliance on a stipulation would make any difference. Insofar as United States v. Fruehauf, supra, the other case cited by the Government, is relevant at all it seems to point away from the Government’s contention. In Fruehauj this Court refused to consider the merits of an appeal under § 3731 from a District Court decision dismissing an indictment on the basis of a “ ‘judicial admission’ culled from a pretrial memorandum” of the Government by the District Judge. Rather than penalizing the Government by dismissing the appeal, however, the Court simply exercised its discretion under 28 U. S. C. § 2106 by setting aside the ruling below, and remanding the case for a new trial on the existing indictment. Not only do the cases cited by the Government fail to establish its contention, but other authority points strongly in the opposite direction. In United States v. Norris, 281 U. S. 619 (1930), this Court said that a “stipulation was ineffective to import an issue as to the sufficiency of the indictment, or an issue of fact upon the question of guilt or innocence,” because of “the rule that nothing can be added to an indictment without the concurrence of the grand jury,” id., at 622. While it is true that Norris is complicated by the fact that the defendant had entered a guilty plea, the Court said that even “[i]f [the stipulation had been] filed before plea and [had been] given effect, such a stipulation would oust the jurisdiction of the court,” id., at 622-623. Norris, together with the policy, often expressed by this Court, that the Criminal Appeals Act should be strictly construed against the Government’s right to appeal, see, e. g., United States v. Borden Co., 308 U. S. 188, 192 (1939), makes it at least very doubtful whether the parties should, on the basis of a stipulation, be able to secure review under the motion-in-arrest provisions of § 3731. We do not decide that issue, however, for there was nothing even approaching a stipulation here. Before the court’s final ruling below, the parties did not in any way, formally or informally, agree on the factual findings made in its opinion. It is relevant to recall that before the trial the government attorney specifically refused to stipulate whether Sisson sincerely believed the war to be illegal, and, if so, whether such a belief was reasonable. Moreover, given that the government attorney cross-examined Sisson, and later pointed out the inconsistency between Sisson’s acceptance of a II-S student deferment and his claim that he disapproved of deferments as unfair, it hardly seems the Government accepted Sisson’s sincerity insofar as it was an issue in the case. Therefore, far from being like a case with a formal stipulation between the parties, the most that can be said is that after the District Court’s decision the Government chose to accept the opinion’s findings of fact. Even assuming reliance on a formal stipulation were permissible, it would still be intolerable to allow direct review whenever the District Court labels its decision a motion in arrest, and the Government merely accepts the lower court’s factual findings made after a trial — for this would mean the parties and the lower court simply could foist jurisdiction upon this Court. B The second statutory requirement, that the decision arresting judgment be “for insufficiency of the indict-meht,” is also not met in this case. Senator Nelson, one of the sponsors of the Criminal Appeals Act, made it plain during the debates that this second element was an important limitation. He said: “The arrest of judgment... on which an appeal lies, is not a general motion covering all the grounds on which a judgment may be arrested. It is simply for arrest of judgment because of the insufficiency of the indictment — that is, the failure of the indictment to charge a criminal offense.” 41 Cong. Rec. 2756. (Emphasis supplied.) See also 40 Cong. Rec. 9033. Although the District Court’s opinion recites as a conclusion that the indictment in this case did “not charge an offense” for purposes of Rule 34, surely the indictment alleged the necessary elements of an offense. The decision below rests on affirmative defenses which the court thought Sisson could claim because of his beliefs. It has never been thought that an indictment, in order to be sufficient, need anticipate affirmative defenses, United States v. Fargas, 267 F. Supp. 452, 455 (D. C. S. D. N. Y. 1967) (“Any questions as to the validity of the local board’s refusal to grant conscientious objector exemption are matters of defense... [that] [t]here is no necessity for the indictment to negate.. Moreover, even assuming, arguendo, the correctness of the District Court’s constitutional theory that sincere nonreligious objectors to particular wars have a constitutional privilege that bars conviction, the facts essential to Sisson’s claim of this privilege do not appear from any recitals in the indictment. As the District Court itself said before trial, “[W]hat [Sisson] believed is a question of evidence and not a question which appears on the face of the indictment.” (App. 52.) In short, this indictment cannot be taken as insufficient for, on the one hand, it recites the necessary elements of an offense, and on the other hand, it does not allege facts that themselves demonstrate the availability of a constitutional privilege. C The same reason underlying our conclusion that this was not a decision arresting judgment — i.e., that the disposition is bottomed on factual conclusions not found in the indictment but instead made on the basis of evidence adduced at the trial — convinces us that the decision was in fact an acquittal rendered by the trial court after the jury’s verdict of guilty. For purposes of analysis it is helpful to compare this case to one in which a jury was instructed as follows: “If you find defendant Sisson to be sincere, and if you find that he was as genuinely and profoundly governed by conscience as a martyr obedient to an orthodox religion, you must acquit him because the government’s interest in having him serve in Vietnam is outweighed by his interest in obeying the dictates of his conscience. On the other hand, if you do not so find, you must convict if you find that petitioner did wilfully refuse induction.” If a jury had been so instructed, there can be no doubt that its verdict of acquittal could not be appealed under § 3731 no matter how erroneous the constitutional theory underlying the instructions. As Senator Knox said of the bill that was to become the Criminal Appeals Act: “Mark this: It is not proposed to give the Government any appeal under any circumstances when the defendant is acquitted for any error whatever committed by the court. “The Government takes the risks of all the mistakes of its prosecuting officers and of the trial judge in the trial, and it is only proposed to give it an appeal upon questions of law raised by the defendant to defeat the trial and if it defeats the trial. “The defendant gets the benefit of all errors in the trial which are in his favor, and can challenge all errors in the trial which are against him.” 41 Cong. Rec. 2752. Quite apart from the statute, it is, of course, well settled that an acquittal can “not be reviewed, on error or otherwise, without putting [the defendant] twice in jeopardy, and thereby violating the Constitution.... [I]n this country a verdict of acquittal, although not followed by any judgment, is a bar to a subsequent prosecution for the same offence,” United States v. Ball, 163 U. S. 662, 671 (1896). There are three differences between the hypothetical case just suggested and the case at hand. First, in this case it was the judge — not the jury — who made the factual determinations. This difference alone does not support a legal distinction, however, for judges, like juries, can acquit defendants, see Fed. Rule Crim. Proc. 29. Second, the judge in this case made his decision after the jury had brought in a verdict of guilty. Rules 29 (b) and (c) of the Federal Rules of Criminal Procedure, however, expressly allow a federal judge to acquit a criminal defendant after the jury “returns a verdict of guilty.” And third, in this case the District Judge labeled his post-verdict opinion an arrest of judgment, not an acquittal. This characterization alone, however, neither confers jurisdiction on this Court, see n. 7, supra, nor makes the opinion any less dependent upon evidence adduced at the trial. In short, we see no distinction between what the court below did, and a post-verdict directed acquittal. rH i — I h-i The dissenting opinions of both The Chief Justice and Mr. Justice White suggest that we are too niggardly-in our interpretation of the Criminal Appeals Act, and each contends that the Act should be more broadly construed to give effect to an underlying policy that is said to favor review. This Court has frequently stated that the “exceptional right of appeal given to the Government by the Criminal Appeals Act is strictly limited to the instances specified,” United States v. Borden Co., 308 U. S. 188, 192 (1939), and that such appeals “are something unusual, exceptional, not favored,” Carroll v. United States, 354 U. S. 394, 400 (1957); see United States v. Keitel, 211 U. S. 370, 399 (1908); United States v. Dickinson, 213 U. S. 92, 103 (1909); cf. Will v. United States, 389 U. S. 90, 96 (1967). The approach suggested by our Brothers seems inconsistent with these notions. Moreover, the background and legislative history of the Criminal Appeals Act demonstrate the compromise origins of the Act that justify the principle of strict construction this Court has always said should be placed on its provisions. Because the Criminal Appeals Act, now 18 U. S. C. §3731 (1964 ed., Supp. IV), has descended unchanged in substance from the original Criminal Appeals Act, which was enacted on March 2, 1907, 34 Stat. 1246, the crucial focus for this inquiry must be the legislative history of the 1907 Act. A Beginning in 1892 — 15 years before the enactment of the Criminal Appeals Act — the Attorneys General of the United States regularly recommended passage of legislation allowing the Government to appeal in criminal cases. Their primary purpose was perhaps best expressed by Attorney General Miller in his 1892 report: “As the law now stands... it is in the power of a single district judge, by quashing an indictment, to defeat any criminal prosecution instituted by the Government.” There was no progress, however, until President Theodore Roosevelt, outraged by a decision of Judge Humphrey preventing the prosecution of the Beef Trust, made this proposed reform into a “major political issue,” and demanded the enactment of legislation in his 1906 annual message to Congress. The House, as one commentator has written, “was obedient to the presidential command.” It passed, without debate, a very broad bill giving the Government the same right to appeal legal issues decided adversely to it as had earlier been accorded a criminal defendant. The Senate would not accept any such sweeping change of the traditional common-law rule giving the Government no appeal at all. The substitute bill that the Senate Judiciary Committee reported out narrowed the House bill substantially, and limited the Government's right to appeal to writs of error from decisions (1) quashing an indictment or sustaining a demurrer to an indictment; (2) arresting judgment of conviction because of the insufficiency of the indictment; and (3) sustaining special pleas in bar when the defendant had not been put in jeopardy. Even as narrowed, the bill met opposition on the floor, and the session closed without Senate action. The next session, after the bill was again reported out of the Senate Judiciary Committee, it was debated for three days on the floor and again met strong opposition. Reflecting the deep concern that the legislation not jeopardize interests of defendants whose cases were appealed by the Government, amendments were adopted requiring the Government to appeal within 30 days and to prosecute its cases with diligence; and allowing defendants whose eases were appealed to be released on their own recognizance in the discretion of the presiding judge. Various Senators were particularly concerned lest there be any possibility that a defendant who had already been through one trial be subjected to another trial after a successful appeal by the Government. In response to this concern, an amendment was then adopted requiring that a verdict in favor of the defendant not be set aside on appeal no matter how erroneous the legal theory upon which it might be based. For these purposes, it was made plain that it made no difference whether the verdict be the result of the jury’s decision or that of the judge. Moreover, as we explore in more detail later, the debates suggest that apart from decisions arresting judgment, there were to be no appeals taken in any case in which jeopardy had attached by the impaneling of the jury. Finally, to limit further the scope of the Act to cases of public importance, the Government’s right to appeal (under all but the special plea in bar provision) was confined to cases in which the ground of the District Court’s decision was the “invalidity or construction of the statute upon which the indictment is founded.” With all these amendments the Senate passed the bill without division on February 13, 1907, but the House, after referring the Senate’s version to its Judiciary Committee, disagreed with the Senate bill and proposed a conference. The conference committee, apart from divesting the courts of appeals of jurisdiction to hear any government appeals, adopted the Senate version of the bill with merely formal changes. Both the Senate and the House approved the bill reported out by the committee and with the President’s signature the Criminal Appeals Act became law. B With this perspective, we now examine the arguments made in opposition to our conclusion. It is argued in dissent that § 3731 “contemplates that an arrest of judgment is appropriate in other than a closed category of cases defined by legal history,” and concludes that “evidence adduced at trial can be considered by a district court as the basis for a motion in arrest of judgment when that evidence is used solely for the purpose of testing the constitutionality of the charging statute as applied,” post, at 314 (dissenting opinion of The Chief Justice). The dissenters propose in effect to create a new procedure — label it a decision arresting judgment — in order to conclude that this Court has jurisdiction to hear this appeal by the Government. The statutory phrase “decision arresting a judgment” is not an empty vessel into which this Court is free to pour a vintage that we think better suits present-day tastes. As we have shown, Congress defined our jurisdiction in the Criminal Appeals Act in terms of procedures existing in 1907. As a matter of interpretation, this Court has no right to give the statutory language a meaning inconsistent with its common-law antecedents, and alien to the limitations that today govern motions in arrest of judgment under Rule 34. Radical reinterpretations of the statutory phrase “decision arresting a judgment” are said to be necessary in order to effectuate a broad policy, found to be underlying the Criminal Appeals Act, that this Court review important legal issues. The axiom that courts should endeavor to give statutory language that meaning that nurtures the policies underlying legislation is one that guides us when circumstances not plainly covered by the terms of a statute are subsumed by the underlying policies to which Congress was committed. Care must be taken, however, to respect the limits up to which Congress was prepared to enact a particular policy, especially when the boundaries of a statute are drawn as a compromise resulting from the countervailing pressures of other policies. Our disagreeing Brothers, in seeking to energize the congressional commitment to review, ignore the subtlety of the compromise that limited our jurisdiction, thereby garnering the votes necessary to enact the Criminal Appeals Act. In this regard, the legislative history reveals a strong current of congressional solicitude for the plight of a criminal defendant exposed to additional expense and anxiety by a government appeal and the incumbent possibility of multiple trials. Criminal appeals by the Government “always threaten to offend the policies behind the double-jeopardy prohibition,” Will v. United States, supra, at 96, even in circumstances where the Constitution itself does not bar retrial. Out of a collision between this policy concern, and the competing policy favoring review, Congress enacted a bill that fully satisfied neither the Government nor the Question: What is the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed? A. stay, petition, or motion granted B. affirmed (includes modified) C. reversed D. reversed and remanded E. vacated and remanded F. affirmed and reversed (or vacated) in part G. affirmed and reversed (or vacated) in part and remanded H. vacated I. petition denied or appeal dismissed J. certification to or from a lower court K. no disposition Answer:
sc_threejudgefdc	A	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. WILLIAMS et al. v. RHODES, GOVERNOR OF OHIO, et al. No. 543. Argued October 7, 1968. Decided October 15, 1968. David J. Young argued the cause and filed briefs for appellants in No. 543. Jerry Gordon argued the cause, pro hac vice, and filed briefs for appellants in No. 544. Charles S. Lopeman argued the cause for appellees in both cases. With him on the briefs was William B. Saxbe, Attorney General of Ohio. Together with No. 544, Socialist Labor Party et al. v. Rhodes, Governor of Ohio, et al., also on appeal from the same court. Mr. Justice Black delivered the opinion of the Court. The State of Ohio in a series of election laws has made it virtually impossible for a new political party, even though it has hundreds of thousands of members, or an old party, which has a very small number of members, to be placed on the state ballot to choose electors pledged to particular candidates for the Presidency and Vice Presidency of the United States. Ohio Revised Code, § 3517.01, requires a new party to obtain petitions signed by qualified electors totaling 15% of the number of ballots cast in the last preceding gubernatorial election. The detailed provisions of other Ohio election laws result in the imposition of substantial additional burdens, which were accurately summarized in Judge Kinneary’s dissenting opinion in the court below and were substantially agreed on by the other members of that court. Together these various restrictive provisions make it virtually impossible for any party to qualify on the ballot except the Republican and Democratic Parties. These two Parties face substantially smaller burdens because they are allowed to retain their positions on the ballot simply by obtaining 10% of the votes in the last gubernatorial election and need not obtain any signature petitions. Moreover, Ohio laws make no provision for ballot position for independent candidates as distinguished from political parties. The State of Ohio claims the power to keep minority parties and independent candidates off the ballot under Art. II, § 1, of the Constitution, which provides that: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress . . . The Ohio American Independent Party, an appellant in No. 543, and the Socialist Labor Party, an appellant in No. 544, both brought suit to challenge the validity of these Ohio laws as applied to them, on the ground that they deny these Parties and the voters who might wish to vote for them the equal protection of the laws, guaranteed against state abridgment by the Equal Protection Clause of the Fourteenth Amendment. The three-judge District Court designated to try the case ruled these restrictive Ohio election laws unconstitutional but refused to grant the Parties the full relief they had sought, 290 F. Supp. 983 (D. C. S. D. Ohio 1968), and both Parties have appealed to this Court. The cases arose in this way: The Ohio American Independent Party was formed in January 1968 by Ohio partisans of former Governor George C. Wallace of Alabama. During the following six months a campaign was conducted for obtaining signatures on petitions to give the Party a place on the ballot and over 450,000 signatures were eventually obtained, more than the 433,100 required. The State contends and the Independent Party agrees that due to the interaction of several provisions of the Ohio laws, such petitions were required to be filed by February 7, 1968, and so the Secretary of the State of Ohio informed the Party that it would not be given a place on the ballot. Neither in the pleadings, the affidavits before the District Court, the arguments there, nor in our Court has the State denied that the petitions were signed by enough qualified electors of Ohio to meet the 15% requirement under Ohio law. Having demonstrated its numerical strength, the Independent Party argued that this and the other burdens, including the early deadline for filing petitions and the requirement of a primary election conforming to detailed and rigorous standards, denied the Party and certain Ohio voters equal protection of the laws. The three-judge District Court unanimously agreed with this contention and ruled that the State must be required to provide a space for write-in votes. A majority of the District Court refused to hold, however, that the Party’s name must be printed on the ballot, on the ground that Wallace and his adherents had been guilty of “laches” by filing their suit too late to allow the Ohio Legislature an opportunity to remedy, in time for the presidential balloting, the defects which the District Court held the law possessed. The appellants in No. 543 then moved before Mr. Justice Stewart, Circuit Justice for the Sixth Circuit, for an injunction which would order the Party’s candidates to be put on the ballot pending appeal. After consulting with the other members of the Court who were available, and after the State represented that the grant of interlocutory relief would be in the interests of the efficient operation of the electoral machinery if this Court considered the chances of successful challenge to the Ohio statutes good, Mr. Justice Stewart granted the injunction. The Socialist Labor Party, an appellant in No. 544, has all the formal attributes of a regular party. It has conventions and a State Executive Committee as required by the Ohio law, and it was permitted to have a place on the ballot until 1948. Since then, however, it has not filed petitions with the total signatures required under new Ohio laws for ballot position, and indeed it conceded it could not do so this year. The same three-judge panel heard the Party’s suit and reached a similar result — write-in space was ordered but ballot position was denied the Socialist Labor Party. In this case the District Court assigned both the Party’s small membership of 108 and its delay in bringing suit as reasons for refusing to order more complete relief for the 1968 election. A motion to .stay the District Court’s judgment was presented to Mr. Justice Stewart several days after he had ordered similar relief in the Independent Party case. The motion was denied principally because of the Socialist Party’s failure to move quickly to obtain relief, with the consequent confusion that would be caused by requiring Ohio once again to begin completely reprinting its election ballots, but the case was set by this Court for oral argument, along with the Independent Party case. I. Ohio’s claim that the political-question doctrine precludes judicial consideration of these cases requires very little discussion. That claim has been rejected in cases of this kind numerous times. It was rejected by the Court unanimously in 1892 in the case of McPherson v. Blacker, 146 U. S. 1, 23-24, and more recently it has been squarely rejected in Baker v. Carr, 369 U. S. 186, 208-237 (1962), and in Wesberry v. Sanders, 376 U. S. 1, 5-7 (1964). Other cases to the same effect need not now be cited. These cases do raise a justiciable controversy under the Constitution and cannot be relegated to the political arena. II. The State also contends that it has absolute power to put any burdens it pleases on the selection of electors because of the First Section of the Second Article of the Constitution, providing that “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors . . to choose a President and Vice President. There, of course, can be no question but that this section does grant extensive power to the States to pass laws regulating the selection of electors. But the Constitution is filled with provisions that grant Congress or the States specific power to legislate in certain areas; these granted powers are always subject to the limitation that they may not be exercised in a way that violates other specific provisions of the Constitution. For example, Congress is granted broad power to “lay and collect Taxes,” but the taxing power, broad as it is, may not be invoked in such a way as to violate the privilege against self-incrimination. Nor can it be thought that the power to select electors could be exercised in such a way as to violate express constitutional commands that specifically bar States from passing certain kinds of laws. Clearly, the Fifteenth and Nineteenth Amendments were intended to bar the Federal Government and the States from denying the right to vote on grounds of race and sex in presidential elections. And the Twenty-fourth Amendment clearly and literally bars any State from imposing a poll tax on the right to vote “for electors for President or Vice president.” Obviously we must reject the notion that Art. II, § 1, gives the States power to impose burdens on the right to vote, where such burdens are expressly prohibited in other constitutional provisions. We therefore hold that no State can pass a law regulating elections that violates the Fourteenth Amendment’s command that “No State shall . . . deny to any person . . . the equal protection of the laws.” III. We turn then to the question whether the court below properly held that the Ohio laws before us result in a denial of equal protection of the laws. It is true that this Court has firmly established the principle that the Equal Protection Clause does not make every minor difference in the application of laws to different groups a violation of our Constitution. But we have also held many times that “invidious” distinctions cannot be enacted without a violation of the Equal Protection Clause. In determining whether or not a state law violates the Equal Protection Clause, we must consider the facts and circumstances behind the law, the interests which the State claims to be protecting, and the interests of those who are disadvantaged by the classification. In the present situation the state laws place burdens on two different, although overlapping, kinds of rights — the right of individuals to associate for the advancement of political beliefs, and the right of qualified voters, regardless of their political persuasion, to cast their votes effectively. Both of these rights, of course, rank among our most precious freedoms. We have repeatedly held that freedom of association is protected by the First Amendment. And of course this freedom protected against federal encroachment by the First Amendment is entitled under the Fourteenth Amendment to the same protection from infringement by the States. Similarly we have said with reference to the right to vote: “No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined.” No extended discussion is required to establish that the Ohio laws before us give the two old, established parties a decided advantage over any new parties struggling for existence and thus place substantially unequal burdens on both the right to vote and the right to associate. The right to form a party for the advancement of political goals means little if a party can be kept off the election ballot and thus denied an equal opportunity to win votes. So also, the right to vote is heavily burdened if that vote may be cast only for one of two parties at a time when other parties are clamoring for a place on the ballot. In determining whether the State has power to place such unequal burdens on minority groups where rights of this kind are at stake, the decisions of this Court have consistently held that “only a compelling state interest in the regulation of a subject within the State’s constitutional power to regulate can justify limiting First Amendment freedoms.” NAACP v. Button, 371 U. S. 415, 438 (1963). The State has here failed to show any “compelling interest” which justifies imposing such heavy burdens on the right to vote and to associate. The State asserts that the following interests are served by the restrictions it imposes. It claims that the State may validly promote a two-party system in order to encourage compromise and political stability. The fact is, however, that the Ohio system does not merely favor a “two-party system”; it favors two particular parties— the Republicans and the Democrats — and in effect tends to give them a complete monopoly. There is, of course, no reason why two parties should retain a permanent monopoly on the right to have people vote for or against them. Competition in ideas and governmental policies is at the core of our electoral process and of the First Amendment freedoms. New parties struggling for their place must have the time and opportunity to organize in order to meet reasonable requirements for ballot position, just as the old parties have had in the past. Ohio makes a variety of other arguments to support its very restrictive election laws. It points out, for example, that if three or more parties are on the ballot, it is possible that no one party would obtain 50% of the vote, and the runner-up might have been preferred to the plurality winner by a majority of the voters. Coneed-edly, the State does have an interest in attempting to see that the election winner be the choice of a majority of its voters. But to grant the State power to keep all political parties off the ballot until they have enough members to win would stifle the growth of all new parties working to increase their strength from year to year. Considering these Ohio laws in their totality, this interest cannot justify the very severe restrictions on voting and associational rights which Ohio has imposed. The State also argues that its requirement of a party structure and an organized primary insures that those who disagree with the major parties and their policies “will be given a choice of leadership as well as issues” since any leader who attempts to capitalize on the disaffection of such a group is forced to submit to a primary in which other, possibly more attractive, leaders can raise the same issues and compete for the allegiance of the disaffected group. But while this goal may be desirable, Ohio’s system cannot achieve it. Since the principal policies of the major parties change to some extent from year to year, and since the identity of the likely major party nominees may not be known until shortly before the election, this disaffected “group” will rarely if ever be a cohesive or identifiable group until a few months before the election. Thus, Ohio’s burdensome procedures, requiring extensive organization and other election activities by a very early date, operate to prevent such a group from ever getting on the ballot and the Ohio system thus denies the “disaffected” not only a choice of leadership but a choice on the issues as well. Finally Ohio claims that its highly restrictive provisions are justified because without them a large number of parties might qualify for the ballot, and the voters would then be confronted with a choice so confusing that the popular will could be frustrated. But the experience of many States, including that of Ohio prior to 1948, demonstrates that no more than a handful of parties attempts to qualify for ballot positions even when a very low number of signatures, such as 1% of the electorate, is required. It is true that the existence of multitudinous fragmentary groups might justify some regulatory control but in Ohio at the present time this danger seems to us no more than “theoretically imaginable.” No such remote danger can justify the immediate and crippling impact on the basic constitutional rights involved in this case. Of course, the number of voters in favor of a party, along with other circumstances, is relevant in considering whether state laws violate the Equal Protection Clause. And, as we have said, the State is left with broad powers to regulate voting, which may include laws relating to the qualification and functions of electors. But here the totality of the Ohio restrictive laws taken as a whole imposes a burden on voting and associational rights which we hold is an invidious discrimination, in violation of the Equal Protection Clause. IY. This leaves only the propriety of the judgments of the District Court. That court held that the Socialist Labor Party could get relief to the extent of having the right, despite Ohio laws, to get the advantage of write-in ballots. It restricted the Independent Party to the same relief. The Independent Party went before the District Court, made its challenge, and prayed for broader relief, including a judgment declaring the Ohio laws invalid. It also asked that its name be put on the ballot along with the Democratic and Republican Parties. The Socialist Labor Party also went to the District Court and asked for the same relief. On this record, however, the parties stand in different positions before us. Immediately after the District Court entered its judgment, the new Independent Party brought its case to this Court where Mr. Justice Stewart conducted a hearing. At that hearing Ohio represented to Mr. Justice Stewart that the Independent Party’s name could be placed on the ballot without disrupting the state election, but if there was a long delay, the situation would be different. It was not until several days after that hearing was concluded and after Mr. Justice Stewart had issued his order staying the judgment against the Independent Party that the Socialist Labor Party asked for similar relief. The State objected on the ground that at that time it was impossible to grant the relief to the Socialist Labor Party without disrupting the process of its elections; accordingly Mr. Justice Stewart denied it relief, and the State now repeats its statement that relief cannot be granted without serious disruption of election process. Certainly at this late date it would be extremely difficult, if not impossible, for Ohio to provide still another set of ballots. Moreover, the confusion that would attend such a last-minute change poses a risk of interference with the rights of other Ohio citizens, for example, absentee voters. Under the circumstances we require Ohio to permit the Independent Party to remain on the ballot, along with its candidates for President and Vice President, subject, of course, to compliance with valid regulatory laws of Ohio, including the law relating to the qualification and functions of electors. We do not require Ohio to place the Socialist Party on the ballot for this election. The District Court’s judgment is affirmed with reference to No. 544, the Socialist Labor Party case, but is modified in No. 543, the Independent Party case, with reference to granting that Party the right to have its name printed on the ballot. It is so ordered. Judge Kinneary describes, in his dissenting opinion below, the legal obstacles placed before a would-be third party even after the 15% signature requirement has been fulfilled: “First, at the primary election, the new party, or any political party, is required to elect a state central committee consisting of two members from each congressional district and county central committees for each county in Ohio. [Ohio Rev. Code §§ 3517.02-3517.04.] Second, at the primary election the new party must elect delegates and alternates to a national convention. [Ohio Rev. Code §3505.10.] Since Section 3513.19.1, Ohio Rev. Code, prohibits a candidate from seeking the office of delegate to the national convention or committeeman if he voted as a member of a different party at a primary election in the preceding four year period, the new party would be required to have over twelve hundred members who had not previously voted in another party’s primary, and who would be willing to serve as committeemen and delegates. Third, the candidates for nomination in the primary •would have to file petitions signed by qualified electors. [Ohio Rev. Code §3513.05.] The term ‘qualified electors’ is not adequately defined in the Ohio Revised Code [§ 3501.01 (H)], but a related section [§3513.19], provides that a qualified elector at a primary election of a political party is one who, (1) voted for a majority of that party’s candidates at the last election, or, (2) has never voted in any election before. Since neither of the political party plaintiffs had any candidates at the last preceding regular state election, they would, of necessity, have to seek out members who had never voted before to sign the nominating petitions, and it would be only these persons who could vote in the primary election of the new party.” Art. I, § 8, cl. 1. Marchetti v. United States, 390 U. S. 39 (1968); Grosso v. United States, 390 U. S. 62 (1968). Skinner v. Oklahoma, 316 U. S. 535, 539-541 (1942); Cox v. Louisiana, 379 U. S. 536, 557 (1965); Yick Wo v. Hopkins, 118 U. S. 356 (1886); Brown v. Board of Education, 347 U. S. 483 (1954); Loving v. Virginia, 388 U. S. 1 (1967). See, e. g., Carrington v. Rash, 380 U. S. 89 (1965); Skinner v. Oklahoma, supra. Mine Workers v. Illinois Bar Assn., 389 U. S. 217 (1967) ; NAACP v. Button, 371 U. S. 415 (1963); NAACP v. Alabama, 357 U. S. 449 (1958). See New York Times Co. v. Sullivan, 376 U. S. 254, 276-277 (1964), and cases there cited. Wesberry v. Sanders, supra, at 17. See also Carrington v. Bash, supra. Forty-two States require third parties to obtain the signatures of only 1% or less of the electorate in order to appear on the ballot. It appears that no significant problem has arisen in these States which have relatively lenient requirements for obtaining ballot position. Cf. Mine Workers v. Illinois Bar Assn., supra, at 224. Question: Was the case heard by a three-judge federal district court? A. Yes B. No Answer:
songer_treat	H	What follows is an opinion from a United States Court of Appeals. Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals. UNITED STATES of America, Plaintiff-Appellee, v. Willie Ray JACKSON, Defendant-Appellant. No. 88-5204. United States Court of Appeals, Ninth Circuit. Argued and Submitted Sept. 16, 1988. Decided Sept. 29, 1988. Mark F. Adams, San Diego, Cal., for defendant-appellant. Michael J. Dowd, Asst. U.S. Atty., Criminal Div., San Diego, Cal., for plaintiff-ap-pellee. Before NORRIS, HALL and KOZINSKI, Circuit Judges. PER CURIAM: The district court refused to sentence the appellant pursuant to the Sentencing Reform Act of 1984 (SRA), Pub.L. No. 98-473, tit. II, ch. II, 98 Stat.1987 (codified as amended at 18 U.S.C. §§ 3551-3742 and 28 U.S.C. §§ 991-998 (Supp. IV 1986)), sentencing him, instead, according to prior law. The district court did, however, place the appellant on supervised release for a period of one year following release from prison, as provided in the SRA, 18 U.S.C. § 3583 (Supp. IV 1986). We subsequently held the Sentencing Reform Act to be unconstitutional. Gubiensio-Ortiz v. Kanahele, 857 F.2d 1245 (9th Cir.1988). The only issue this appeal presents is whether the SRA’s supervised release provision is severable from the rest of the Act. We hold that it is not. The Act introduced a comprehensive revision of post-custodial supervision, abolishing parole and substantially curtailing the availability of good time credits. Gubiensio, at 1247. In Gubiensio, we considered the severability of the provision relating to good time credits and concluded: “Congress having chosen a ‘comprehensive’ approach to making sentencing more determinate, we will not sever companion sections of the guidelines system that would introduce piecemeal reforms.” Id. at 1268. We reach the same conclusion as to the supervised release provision. Severing the provision would leave in place two competing systems of post-custodial supervision — parole and probation under pre-SRA law and supervised release under the SRA. The simultaneous availability of both systems would be senseless. Accordingly, we vacate appellant’s sentence and remand for resentencing in light of Gubiensio and this opinion. The mandate shall issue immediately. Fed.R.App.P. 2. 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". In re MT. FOREST FUR FARMS OF AMERICA, Inc. GULF REFINING CO. OF LOUISIANA et al. v. FITZGERALD. COCKRELL et al. v. FITZGERALD (two cases). Nos. 8802-8808, 8614, 8894. Circuit Court of Appeals, Sixth Circuit. Aug. 16, 1941. Butzel, Eaman, Long, Gust & Bills, of Detroit, Mich. (Frank D. Eaman and Victor W. Klein, both of Detroit, Mich., J. S. Atkinson, of Shreveport, La., Tinsley Gil-mer, of Lake Charles, La., and George C. Schoenberger, Jr., of Houston, Tex., of counsel), for Gulf Refining Co. of Louisiana and others. Monroe & Lemann, of New Orleans, La., Butzel, Levin & Winston, of Detroit, Mich., and Battle, Levy, Fowler & Nea-man, of New York City (Monte M. Le-mann, of New Orleans, La., A. J. Levin, of Detroit, Mich., George Gordon Battle, of New York City, J. Blanc Monroe, of New Orleans, La., Henry H. Sills, of Detroit, Mich., Walter J. Suthon, Jr,, of New Orleans, La., and Pearson E. Neaman, of New York City, of counsel), for Freeport Sul-phur Co. Oxtoby, Robison & Hull, of. Detroit, Mich., and Herold, Cousin & Herold, of Shreveport, La. (Oscar C. Hull and Leo I. Franklin, both of Detroit, Mich., and Samuel L. Herold, Jr., and Sidney L. Herold, both of Shreveport, La., of counsel), for Ernest Cockrell. Robert S. Marx, Carl Runge, Lawrence I. Levi, and Julian G. McIntosh, all of Detroit, Mich., Lazarus, Weil & Lazarus and Cobb & Saunders, all of New Orleans, La., Fraser, Effler, Shumaker & Winn, of Toledo, Ohio (Eldon S. Lazarus and Eugene D. Saunders, both of New Orleans, La., Ross W. Shumaker and Robert C. Dunn, both of Toledo, Ohio, Charles S. Abbott, of Ann Arbor, Mich., and Nichols, Wood, Marx & Ginter, of Cincinnati, Ohio, of counsel), for trustee, Frank Fitzgerald. Before HICKS, HAMILTON, and MARTIN, Circuit Judges. MARTIN, Circuit Judge. This complicated litigation, involving millions of dollars, has been heard on the consolidated argument of nine cases and reaches us on appeal, in summary proceedings in a corporate reorganization in bankruptcy, in causes 8802-8808 from a judgment of the District Court for the Eastern District of Michigan against six appellants, Gulf Refining Company of Louisiana, Gulf Refining Company, Humble Oil and Refining Company, Shell Oil Company, Inc., Freeport Sulphur Company, all corporations, and Ernest Cockrell; on appeal from an interlocutory injunction in 8614, restraining appellants Ernest Cockrell, his curator ad hoc, and their attorneys, from further proceedings in a suit pending in the 25th Judicial District Court for the Parish of Plaquemines, State of Louisiana;' and on appeal from an interlocutory injunction in 8894, restraining appellants Ernest Cockrell and two Louisiana law firms, Herold, Cousin & Herold, and Plauche & Plauche, and also the Moran Corporation of the South and Isaac E. Heller, who are not appellants, from taking any further steps in another suit pending in the same Louisiana Judicial District Court. The appellee, Frank Fitzgerald, trustee for Mt. Forest Fur Farms of America, Inc., the corporate debtor, appealed in the main case (8802-8808 consolidated) from that portion of the judgment which denied the full relief sought; but, for brevity and clarity, will be designated only as appellee. On July 16, 1926, a corporation, Mt. Forest Fur Farm, was created under the laws of Michigan for the purpose of owning and operating fur and game farms in Michigan and elsewhere in the United States and in Canada and of manufacturing and dealing in furs and fur garments, including the right to deal in real estate in furtherance of its charter purposes. On March 29, 1928, this Michigan corporation sold its properties and assets to the debtor, Mt. Forest Fur Farms of America, Inc., incorporated under the laws of Delaware with like charter powers. The consideration received for this conveyance was stock of the new corporation and the assumption by it of all contracts and liabilities of the vendor. See Morlock v. Mount Forest Fur Farms of America, Inc., 269 Mich. 549, 257 N.W. 880. On September 28, 1928, Mt. Forest Fur Farm executed a deed to Mt. Forest Fur Farms of America, Inc., conveying the Louisiana land which is the subject matter of the present controversy. Before the debtor corporation was created, Mt. Forest Fur Farm, after considerable negotiation, entered into a written agreement with appellant Ernest Cockrell, an oil operator, to purchase, for a consideration of two dollars per acre, approximately 53,000 acres of land situated on the west side of the Mississippi River in Plaquemines Parish, Louisiana. This contract of sale contained a perpetual reservation in Cockrell of “one-eighth of all minerals, including oil, gas and sulphur, which may be found in, under and upon said land.” Earnest money was paid and, after much wrangling between the parties, during which Cockrell threatened to call the deal off unless a required first payment of purchase money was made by a specified date, a deed to 127/150ths’ interest in the land, described by townships and sections in Pla-quemines Parish, Louisiana, as containing 52,500 acres, more or less, was executed by Cockrell to Mt. Forest Fur Farm on April 11, 1927, and recorded the following day. This deed contained an ambiguous mineral reservation. The consideration, paid partly in cash and partly by the delivery of one promissory note and the assumption of another, totaled $88,900 for Cockrell’s 127/150ths’ undivided interest in the land. The other 23/150ths' undivided interest, owned by the Moran Corporation of the South, was acquired by Mt. Forest Fur Farm on June 30, 1928, by a deed of conveyance unquestionably reserving in the vendor all mineral rights. Obvious ambiguity in the mineral reservation clause of the deed from appellant Cockrell to Mt. Forest Fur Farm is the fundamental casus belli in the instant case. We quote the much-mooted language: “This Vendor is vested with and specially retains for himself, his heirs and assigns, and reserves from this sale, a perpetual royalty equal to one-eighth of all minerals, including oil, gas and sulphur, which may be found in, under, upon or beneath the lands herein above described, together with perpetual and exclusive rights to make and execute mineral leases on all or any portion of said lands for the exploration, development, production and marketing of any and all of said minerals, and also including perpetual rights of ingress and egress solely for said purpose of exploration, development, production and marketing of said minerals, at all times, and likewise the use of so much of the surface of said premises as may be found necessary and convenient for the exploration, development, production and marketing of said minerals which may be found and produced from said premises.” This reservation has been construed by the Supreme Court of Louisiana, which, adversely to the contention made by Mt. Forest Fur Farms, Inc., plaintiff in a suit brought in Louisiana to recover bonus money amounting to $50,000 which Cockrell received from the Gulf Refining Company for granting and extending a mineral lease, held that by virtue of the above quoted clause in his deed to Mount Forest Fur Farm, Cockrell had retained the perpetual and exclusive right to make and execute mineral leases on all or any portion of the land; that he had retained not merely the right to select the lessee and to fix the terms of the lease, and to lease as agent, but also the right to lease for his own benefit and that of his heirs and assigns “save as otherwise expressed” in the reservation; and that he was entitled to “all that the lease might bring, save as therein specified.” Accordingly, denying the claim of Mt. Forest Fur Farms, the court affirmed a judgment awarding Cockrell the bonus money. But the court announced that it was not concerned with the right to the royalties from the lease. Mt. Forest Fur Farms of America, Inc. v. Cockrell, 179 La. 795, 155 So. 228, 229. If we have jurisdiction, this undecided issue, inter alia, must be decided here; if we have not, a court of competent jurisdiction should be the forum. The lease from Cockrell of all mineral rights in the land to Gulf Refining Company of Louisiana was dated March 15, 1928; and, subsequently, on May 7, 1928, Roxana Petroleum Corporation (now appellant Shell Oil Company, Inc.) acquired from the Moran Corporation of the South a mineral lease on the remaining 23/150ths’ interest in the 52,500 approximate acreage. On July 18, 1928, Roxana Petroleum Corporation and appellant Humble Oil and Refining Company obtained from the State of Louisiana, through its Governor, Huey P. Long, a lease of the mineral rights on the bed of Lake Grand Ecaille. By contract of October 8, 1929, appellants Humble Oil and Refining Company, Gulf Refining Company of Louisiana and Shell Oil Company, Inc. (which had succeeded Roxana), agreed to develop and operate jointly all mineral leases owned by them or subsequently acquired in an area which embraced the 52,-500 acre tract. On February 10, 1932, appellant Freeport Sulphur Company subleased from the three oil companies all their rights and privileges under their respective leases to explore for, mine, produce and market sulphur. After the discovery of oil on the property, the Board of Commissioners for Buras Levee District filed suit claiming title to 1,136 acres of the land. Mt. Forest Fur Farms of America, Inc., the Moran Corporation of the South, the -three oil companies, and Ernest Cockrell ’were named as defendants; and, after a vigorous defense, succeeded in winning a four to three decision in the Supreme Court of Louisiana, rejecting the claims of the Levee Board. Board of Commissioners for Buras Levee District v. Mt. Forest Fur Farms of America, Inc., 178 La. 696, 152 So. 497. But the Levee Board persisted in making claim to other portions of the realty. Cock-rell countered by filing a declaratory judgment suit in the Federal Court which resulted in a decision that the judgment of the Louisiana Supreme Court in the Buras Levee Board suit was res adjudicata.only as to the 1,136 acres there in controversy and that the title-claim of the Buras Board to the remaining portion of the land had not been adjudicated. Board of Com’rs for Buras Levee Dist. v. Cockrell, 5 Cir., 91 F.2d 412. In consequence of this decision, the oil companies, the sulphur company and Cock-rell, under advice of counsel, compromised the adverse claims of the Levee Board and other intertwined claimants. More than $475,000 has been paid to the Levee Board, its assignees, and the holders of over-riding royalty agreements under these compromise settlements. Appellants are presently paying royalties on their consolidated leases from the Levee Board. In the summer of 1929, the oil companies drilled for oil and produced it in paying quantities in June, 1931. Since then, their production of oil from the premises in controversy has been continuous. Likewise, the sulphur company has continuously produced sulphur since December, 1933. The operations of the mineral lessees will be detailed later in this opinion. At no time has either the debtor corporation or its predecessor, Mt. Forest Fur Farm, ever attempted to prospect the land, or produce oil, sulphur, or minerals therefrom. The use and occupancy of the property by these successive owners has been limited exclusively to fur gathering purposes. Due to its default on contracts with many persons for the breeding of muskrats, Mt. Forest Fur Farms of America, Inc., on August 21, 1931, consented to receivership in a stockholders’ suit in chancery in the Circuit Court for Wayne County, Michigan. The receiver took charge and carried on the business of trapping on the company’s Louisiana, property until abandonment of this enterprise in the early part of 1932. An involuntary creditors’ petition for reorganization of the debtor under Section 77B of the Bankruptcy Act, 11 U.S.C.A. § 207, was filed and allowed in the United States District Court. On appeal, the district court order approving the petition for reorganization was reversed and the cause remanded. Mount Forest Fur Farms of America, Inc. v. Farnsworth, 6 Cir., 92 F.2d 342. ■ A voluntary petition of the debtor for reorganization under Section 77B ensued and was approved by the district court, whose orders approving the petition, overruling creditors’ motion to dismiss, and appointing Frank Fitzgerald, trustee, were affirmed on appeal. In re Mt. Forest Fur Farms of America, Inc., 6 Cir., April 5, 1939, 103 F.2d 69. Shortly after his appointment as temporary trustee, appellee obtained a show-cause order against which appellants filed motions to quash on jurisdictional grounds. No ruling was made upon the motions. On January 4, 1940, appellee Fitzgerald, then and now permanent trustee, filed an amended petition upon which he obtained an order to show cause why appellants should not be enjoined from exploring, drilling, mining, selling, moving, or otherwise appropriating oil, gas, sulphur and other minerals from the debtor’s property in Louisiana; or, in the alternative, why appellants should not be directed to pay unto the petitioning debtor the royalties theretofore accrued or thereafter accruing for oil, gas, sulphur and other minerals already removed, or which might thereafter be removed, if it should be made to appear that appellants have the right to extract the minerals but have failed in the discharge of their legal obligation to pay the royalties due thereon. Seasonably to the return day of the show-cause order, appellants, entering only special appearances, filed motions to quash and to dismiss the summary proceedings against them, averring that the court had no jurisdiction to enter the show-cause order of January 4, 1940. These motions to quash and to dismiss presented elaborately the basis of objection of appellants to the jurisdiction. However, after hearing a two days’ argument, the district court entered an order postponing disposition of the motions until the trial on the merits. Finally, after hearing all the evidence in the case, the motions to quash and to dismiss the summary proceedings were denied. The alternative motions of appellants for a stay of the proceedings and for a reference of the issues to the Louisiana State Courts for determination were likewise denied. The trustee for the debtor corporation, moreover, prevailed upon the merits. The determinative adjudications of the district court were, as follows: (1) The interests of appellants under ■ the lease from Cockrell to the Gulf Refining Company of Louisiana were limited to one-eighth of 127/lSOths of the minerals in controversy, and the debtor was vested with the other seven-eighths therein. (2) Appellant, Freeport Sulphur Company, must account to the trustee for the debtor, on the basis of the proceeds from seven-eighths of 127/150ths of the sulphur produced (less the cost of production and a reasonable profit), for the minerals removed from August 23, 1938 (the date of the original petition and show-cause order), to date. (3) Likewise, appellant, Humble Oil and Refining Company (the operating company under the agreement among the appellant oil companies), must account to the trustee for the proceeds of seven-eighths of 127/150ths of the oil produced, less the cost of production and a reasonable profit. (4) Should appellant, Freeport Sulphur Company, whose operations were expressly conditioned in the decree, continue to produce sulphur from the land and should appellant, Humble Oil and Refining Company, continue to produce oil, each shall respectively account to the trustee for seven-eighths of 127/150ths of the sulphur and oil produced, less the cost of production and a reasonable profit to be subsequently determined. (5) A hearing was ordered to be held to ascertain such cost of production and reasonable profits and the amounts now due or hereafter to become due from the production of oil and sulphur, pending which hearing the above-named appellants shall pay into the registry of the court, for future disposition by court order, four dollars a ton on all sulphur and ten cents a barrel on all oil thereafter produced from the entire mineral interest in all the property. (6) Upon failure of the two above-named appellants- to pay the amounts specified in the preceding paragraph, each shall be restrained and enjoined from further production of sulphur and oil on the property. Cases 8802-8808 are here on appeal from the judgment and decree of the district court, both upon the merits and upon the jurisdictional motions and the motions to stay and to refer the issues to the courts of Louisiana. Case 8614 is before us on appeal from the interlocutory injunction, restraining further steps or proceedings by appellants in suit entitled Mt. Forest Fur Farms of America, Inc., v. Ernest Cockrell, et al. [No. 1190], instituted March 30, 1936, by the debtor corporation concerning similar subject matter to that embraced in cases 8802-8808 and now pending in the 25th Judicial District Court for the Parish of Plaquemines, Louisiana. Appellants challenged the jurisdiction of the United States District Court to issue the injunction. Likewise, consideration of case 8894 presents in the first instance the question of jurisdiction involved in cases 8802-8808. The appeal is from an interlocutory injunction, restraining further steps by appellant Cockrell and the law firms of Herold, Cousin & Herold, and Plauche & Plauche, all appellants, and the Moran Corporation of the South and Isaac E. Heller, in a pending suit entitled Ernest Cockrell, et al. v. Moran Corporation of the South, et al. [No. 1603], filed October 14, 1940, in the 25th Judicial District Court for Plaquemines Parish, Louisiana. In its decree, the court below recited that the subject matter in the pending Louisiana case [No. 1603] is substantially identical with the issues adjudged in cases 8802-8808. Manifestly, if the district court lacked jurisdiction in cases 8802-8808, the interlocutory injunctions in cases 8614 and 8894 were improvidently granted. In all these appealed cases, we confront at the threshold the question whether the district court had jurisdiction to enter the show-cause orders. If a negative answer is impelled by applicable law, there should be no further adjudication here. (1) The challenged jurisdiction must be resolved, not by a test of title, but by determination of the issues of possession of the res in controversy as of the time reorganization proceedings were instituted by the debtor corporation. No jurisdiction vests in a court, of bankruptcy to adjudicate, in a summary proceeding, a controversy over property held adversely to the bankrupt estate, except by consent of the adverse claimant, or where the adverse claim is merely color-able. Unless summary jurisdiction exists, the trustee in bankruptcy must resort to plenary suit. Harrison v. Chamberlin, 271 U.S. 191, 46 S.Ct. 467, 70 L.Ed. 897; In re Cadillac Brewing Co., 6 Cir., 102 F.2d 369. Compare First National Bank v. Chicago Title & Trust Co., 198 U.S. 280, 25 S.Ct. 693, 49 L.Ed. 1051. The Supreme Court, while recognizing in Taubel, etc., Co., v. Fox, 264 U.S. 426, 44 S.Ct. 396, 68 L.Ed. 770, the power of Congress to determine the extent of the exercise of bankruptcy jurisdiction by summary proceeding in Federal Courts through possession of the res or otherwise, held that no summary jurisdiction to adjudicate the validity of a substantial adverse claim to property not in possession of the Federal Court, except by consent of the adverse claimant, had been conferred by the Bankruptcy Act of 1898, 11 U.S.C.A. § 1 et seq. Mr. Justice Brandéis stated (264 U.S. at page 433, 434, 44 S.Ct. at page 399) : “As every court must have power to determine, in the first instance, whether it has jurisdiction to proceed, the bankruptcy court has, in every case, jurisdiction to determine whether it has possession actual or constructive. It may conclude, where it lacks actual possession, that the physical possession held by some other persons is of such a nature that the property is constructively within the possession of the court. * * * But in no case where it lacked possession, could the bankruptcy court, under the law as originally enacted, nor can it now (without consent) adjudicate in a summary proceeding the validity of a substantial adverse claim.” Cf. First National Bank of Negaunee v. Fox, 6 Cir., 111 F.2d 810. It was reasserted in Harris v. Brundage Co., 305 U.S. 160, 59 S.Ct. 131, 83 L.Ed. 100, that in every case the bankruptcy court has power, in the first instance, to determine whether it has such actual or constructive possession as is essential to procedural jurisdiction, and to determine controversies relating to property in possession of agents of the debtor at the time of the filing of the petition in bankruptcy. In a recent case, Thompson v. Magnolia Petroleum Company, 309 U.S. 478, 481, 60 S.Ct. 628, 630, 84 L.Ed. 876, the Supreme Court said: “Bankruptcy courts have summary jurisdiction to adjudicate controversies relating to property over which they have actual or constructive possession. And the test of this jurisdiction is not title in but possession by the bankrupt at the time of the filing of the petition in bankruptcy.” The rule, that if ownership is claimed by the bankrupt all property in his possession at the time of the filing of the petition in bankruptcy passes into the custody o-f the bankruptcy court, has been applied to a railroad reorganization under Section 77 of the Bankruptcy Act, as amended March 3, 1933, c. 204, Sec. 1, 47 Stat. 1474, 11 U.S.C.A. § 203 note. But the right of the court to issue injunctions and all writs necessary to protect its physical possession from interference was predicated upon possession of the res. Ex parte Baldwin, 291 U.S. 610, 615, 54 S.Ct. 551, 78 L.Ed. 1020. Appellee has made the point that in Continental Illinois Nat. Bank & Trust Co. v. Chicago, Rock Island Ry., 294 U.S. 648, 55 S.Ct. 595,79 L.Ed. 1110, which sustained the constitutionality of Section 77 of the Bankruptcy Act, the highest court maintained the power of a bankruptcy court to issue, in a summary proceeding, injunctive process to prevent interference with a plan of railroad reorganization. The opinion, however, does not gainsay the principle that jurisdiction in a summary proceeding rests upon actual or constructive possession of the res. No adverse claim by one in possession was involved and the asserted liens were not disputed. The power of a district court to issue process for service outside the district, pursuant to Section 77(a), was upheld. A provision similar to that contained in Section 77(a) will be found in Chapter X, § 111, of the Chandler Act, 11 U.S.C.A., § 511: “Where not inconsistent with the provisions of this chapter, the court in which a petition is filed shall, for the purposes of this chapter, have exclusive jurisdiction of the debtor and its property, wherever located.” Neither exclusive jurisdiction of the debtor nor power to issue process outside the district confers upon the bankruptcy court the power, in a summary proceeding, to decide, without the consent of an adverse claimant, a controversy concerning property in his possession, unless his claim be merely colorable. Were it otherwise, every bona fide possessor of property held adversely to a bankrupt could be haled into a distant Federal Court to defend his right to the property whenever the trustee in a reorganization proceeding should choose to corral him summarily. No such unreasonable election may be deduced from the language of the statute, or from the authorities which have been considered. (2) Does the res in controversy here consist of mineral rights or servitudes susceptible of separate ownership and possession apart from the ownership and possession of the surface of land? Does the exercise of a mineral right or servitude by extracting and actually possessing the minerals from land constitute possession of the right or servitude? To determine the issue of jurisdiction, these questions must be answered in accordance with Louisiana law. Erie Railroad v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487. The highest state court is the final authority on state law. Fidelity Trust Co. v. Field, 311 U.S. 169, 61 S.Ct. 176, 85 L.Ed. 109. We must, therefore, carefully study the opinions of the Supreme Court of Louisiana. It has long been settled law in Louisiana that oil and gas in place are not subject to absolute ownership as specific things apart from the soil of which they form part, and that a grant or reservation of such oil and gas carries only the right to extract such minerals from the soil. Frost-Johnson Lumber Co. v. Sailing’s Heirs, 150 La. 756, 91 So. 207, 242, citing eight earlier Louisiana decisions. The court said: “ * * * No matter what the intention of the parties be, the owner of lands cannot convey or reserve the ownership of the oils, gases, and waters therein apart from the land in which they lie; and we so hold, because the owner himself has no absolute property in such oils, gases, and waters, but only the right to draw them through the soil and thereby become the owner of them.” 150 La. at page 863, 91 So. at page 245. In Wemple v. Nabors Oil & Gas Co., 154 La. 483, 97 So. 666, the court declared that there are only two kinds of estates in land: (1) corporeal, termed ownership [Civil Code, Art. 505] and (2) incorporeal, termed servitude [Civil Code, Arts. 533, 646, 647]; and that mineral servitudes grant merely the right to extract and appropriate minerals. Decision of the case, which was a civil action by a landowner for slander of title, was grounded, however, upon the failure of one who had acquired mineral rights from a prior owner to explore for minerals within the required ten years’ prescription period. We find nowhere in the opinion an intimation that the right of a person entitled to a mineral servitude to possess the same through exercise should be denied. Appellee places what seems to us insecure dependence upon Federal Land Bank of New Orleans v. Mulhern, 180 La. 627, 157 So. 370, 95 A.L.R. 948. The defendant had mortgaged real property to the plaintiff. Subsequently, he entered into a mineral lease with a third party, who drilled and brought in a gas well. A foreclosure suit, brought by the mortgagee, was sustained upon the ground that either partial or total exhaustion of the gas supply would impair “the real right to take gas from the land,” and would necessarily depreciate the security of the mortgage. The emphatic fact was that the mortgage antedated the mineral lease. Appellee stresses the following language of the original opinion: “While the owner of land does not own the fugitive minerals, such as oil and gas, beneath its surface, but only the right to reduce them to possession and ownership, and while such minerals are not susceptible of ownership apart from the land [citing Frost-Johnson Lumber Co. v. Sailing’s Heirs, supra], yet those minerals, while in place in the ground beneath the surface, unsevered, are real estate, a part of the land itself, a part of the realty, as much so as timber, coal, iron, and salt.” 180 La. at page 634, 157 So. at page 373. But, on rehearing, the court explained: “What the court intended to state was, that the owner of real estate unquestionably has a right to go on his land and reduce to possession fugitive minerals, in order to gain complete ownership thereof. He can therefore contract away to another, in the form of a mineral or mining lease, this real right.” Appellee leans heavily upon a case decided fifteen years ago, Exchange National Bank of Shreveport v. Head, 155 La. 309, 99 So. 272, 274. The facts were that a mortgage creditor began a foreclosure proceeding in the state court, pending which the mortgagor (Shields) was adjudged bankrupt. The mortgagee dismissed his state court action and proved his debt in bankruptcy. The property of the bankrupt was ordered sold, free of all liens and incumbrances; the mortgagee purchased the mortgaged land at the bankruptcy sale, and instituted suit in the state court against the mineral lessee (Head) for cancellation of the mineral lease from the public records. The mortgagee (the Exchange National Bank) prevailed. It was held that, though the mineral lease had been executed before the mortgage, prior recordation of the mortgage entitled the trustee in bankruptcy, being vested with all rights of the mortgage creditor, to sell the land free of the rights of the mineral lessee (Head). Certain dicta in the opinion of. the Supreme Court of Louisiana is stressed by appellee: “ * * * The only right which was conveyed by Shields to Head under the oil lease was a right of servitude (an incorporeal right), a real right on the land, a right to extract the oil and utilize the gas from the land, and when Shields surrendered the land in bankruptcy, this real right (this servitude) went with the land into the possession of the trustee in bankruptcy and likewise the possession of the land, for as we have already seen (Nabors Oil & Gas Co. v. Louisiana Oil & Refining Co., supra [151 La. 361, 91 So. 765]), the lessee under an oil and gas lease cannot deny or contest the right of possession of his lessor.” The opinion writer in the Head case, in citing Nabors Oil & Gas. Co., supra, evidently did not recall that on rehearing of the Nabors case [151 La. 361, 91 So. 778]; the court had said: “A majority of the members of this court did not concur in the expressions in the opinion originally handed down in this case. * * * the doctrine that an ordinary lessee, as of a house or farm, cannot dispute the title of his lessor during the term of the lease, has no application to a contract by which a person acquires mineral rights, in the form or name of a contract of lease. Such a contract, in that respect, is more like a sale than an ordinary lease.” Nor can the obiter dicta in the Head case be reconciled with later decisions: Bodcaw Lumber Co. of Louisiana v. Cox, infra, and Connell v. Muslow Oil Co., infra. It was held in Bodcaw Lumber Co. of Louisiana v. Cox, 159 La. 810, 106 So. 313, 314, that a sale of land for taxes does not divest the reservation of a prior mineral servitude. The court said that in all cases cited “in which it was held that oil and gas beneath the surface is not subject to ownership, as corporeal property, it was plainly and distinctly held that the grant or reservation of the oils and gases carried with it the right to extract such minerals from the soil; that such right was an incorporeal right — a real right or servitude.” It was further declared that “when the plaintiff reserved the oil, gas, and minerals under the land sold, it reserved the right to mine for such minerals and to reduce them to possession, and, this being a real, incorporeal right, the plaintiff unquestionably has a standing in court to vindicate and protect such right * * In the Bodcaw case, in holding that plaintiff’s ownership of the mineral servitude could not be. disturbed by a tax sale, the court relied upon Shaw v. Watson, 151 La. 893, 92 So. 375, 378, where it had been denied that a transfer of mineral rights is nothing more than the imposition of an incumbrance, like a mortgage or an ordinary lease for occupancy or cultivation; but on the contrary had been announced that the sale of mineral rights, constituting a servitude upon the land, of the character of incorporeal real property, is an alienation of a part of the landowner’s interest in land and is “a dismemberment of his ownership,” being “more like a sale of an undivided interest in the land than like the imposing of a mortgage or an ordinary lease upon the land.” Adherence to the same concept was manifested in Wiley v. Davis, 164 La. 1090, 115 So. 280, and in Palmer Corporation of Louisiana v. Moore, 171 La. 774, 132 So. 229. In the former case, it was said that “the granting of a mineral lease on property is the granting of a servitude thereon [citation] and hence constitutes a dismemberment of said property amounting to a partial alienation thereof.” 115 So. 281. In the latter case, the statement was made that “when a landowner sells only the mineral rights in his land, or sells the land and reserves the mineral rights, the transaction constitutes a dismemberment of the ownership, and is a sale or reservation, as the case may be, of one of the elements of ownership.” 132 So. 232. Further rationale to the same effect is found in the earlier case of Hanby v. Texas Co., 140 La. 189, 190, 194, 72 So. 933, 934, where it was observed that the right of an owner to use the surface of his land to reduce to possession underlying oil and gas may be so alienated by him as to “dismember the title,” whereupon the resultant rights “retain the nature of the thing upon which they bear as though no dismemberment had occurred.” Connell v. Muslow Oil Co., 186 La. 491, 172 So. 763, 766, decided in 1937, is a strong bulwark for the position of appellants. The facts in that case were that the lessee of the mineral rights to 80 acres of land in Caddo Parish, Louisiana, produced oil on the south forty acres of the tract. Reserving all mineral rights, the landowner subsequently sold the land to another, who conveyed the north forty acres without reservation of the mineral rights. Traced from this vendee through two similar conveyances, in which the mineral rights were not reserved or mentioned, Connell acquired title to the north forty acres, took possession of the land which he had purchased, and cultivated a part of it. He held possession for the prescriptive period required to acquire title by adverse possession in Louisiana. No well having been drilled on the north forty acres, Connell sued the Muslow Oil Company, which had acquired the mineral rights to the entire eighty acres. He claimed that, by prescription of ten years, he owned the mineral rights to the north forty acres, upon which no well had ever been drilled. In opposition, the Muslow Oil Company claimed possession of the mineral rights, or servitude, upon the north forty acres by reason of the admitted fact that it had drilled a well on the south forty acres of the tract. The contention of the Muslow Oil Company was sustained for the 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_district	F	What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable". UNITED STATES of America, Plaintiff-Appellee, v. Jerry VALLE, Jorge Antonio Gochis, Defendants-Appellants. No. 89-5780. United States Court of Appeals, Eleventh Circuit. April 25, 1991. William M. Norris, William M. Norris, P.A., Miami, Fla., for Gochis. Anne Ruth Schultz and Linda Collins Hertz, Asst. U.S. Attys., and Frank Tamen, Miami, Fla., for plaintiff-appellee. Before JOHNSON and BIRCH, Circuit Judges, and MERHIGE, Senior District Judge. . Honorable Robert R. Merhige, Jr., Senior U.S. District Judge for the Eastern District of Virginia, sitting by designation. PER CURIAM: Appellants Jerry Valle and Jorge Gochis pled guilty to an indictment which alleged that they had committed conspiracy to commit bank larceny in violation of 18 U.S.C. § 371, and bank larceny in violation of 18 U.S.C. § 2113(b). Subsequently, the appellants were sentenced pursuant to the United States Sentencing Guidelines. The sentences imposed by the district court, a total of fifteen years incarceration for each of the appellants, varied from the guideline range calculated in the presentence report. Both Valle and Gochis appeal, arguing that the district court relied on improper grounds for an upward departure, and that the extent of the departure was unreasonable. See 18 U.S.C. § 3742(a)(3). We disagree and affirm. I. In November, 1988, appellant Jerry Valle was hired as an armored car guard by the Wells Fargo Armored Service Corp. This employment followed a pre-employment investigation. On December 21, 1988, Valle was riding as one of the guards in a Wells Fargo armored car as it made pick-ups of currency and coins at various businesses in the Miami area. At one of their scheduled stops, Valle induced the regular driver to accompany the messenger into the bank, leaving Valle alone in the truck. Valle then drove away in the armored car. He rendezvoused with his cousin, co-conspirator and co-appellant Jorge Gochis, and removed the money from the truck. The two men then abandoned the empty truck and disappeared with approximately $1.7 million. Appellants next surfaced in upstate New York, where they checked into a motel using false names and carrying eight to twelve suitcases filled with cash. Later, they returned to Miami and moved the suitcases into a rented warehouse. Eventually, the Federal Bureau of Investigation caught up with the appellants in Puerto Rico. Gochis was promptly arrested at their apartment. Valle stalled the FBI until they forced their way inside and apprehended him as he was burning identification and bank documents. Back in Miami, the FBI searched the warehouse which had been used by appellants to temporarily store the stolen money. However, all they found inside was a note which read “Suckers.” Total loss to the victim corporation was $1.7 million; as of the date of sentencing, approximately $50,000.00 has been recovered. This loss has had a direct impact on the victim corporation and many of its employees and officers. The company, a relatively modest-sized business, paid for the loss out of its own profits. The appellants’ guilty pleas were made without any plea agreement with the government. After an investigation and preparation by the Department of Probation of a Pre-sentence Investigation Report (PSI), a sentencing hearing occurred in which all parties were provided an opportunity to present evidence and assert their respective positions. The district court ruled on all objections, culminating in a guideline range for Valle of 37 to 46 months and for Gochis of 30 to 37 months imprisonment. After reviewing the PSIs and considering the arguments of the parties, the district court, with good reason, determined that there existed aggravating circumstances of a kind and to a degree not adequately contemplated by the Sentencing Commission in formulating the Guidelines, specifically, the intent of the appellants not to return the money, but to serve their sentences at an ill-gotten monetary gain. While the amount of money stolen is not a ground for upward departure, the fact is that the defendants would effectively be envisioning jointly about twenty thousand dollars per month for each month of incarceration. Accordingly, the district court sentenced each of the appellants to fifteen years of imprisonment, the statutory maximum. On appeal, as before the district court, appellants contend that an upward departure is improper because their crime did not involve circumstances not already taken into consideration by the Sentencing Guidelines. In addition, appellant Gochis argues that the extent of the departure was unreasonable and an abuse of the court’s discretion. II. Under 18 U.S.C. § 3553(b), a court must impose a sentence within the range mandated by the Sentencing Guidelines “unless the court finds that there exists an aggravating ... circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the Guidelines that should result in a sentence different from that described.” In determining whether a factor was adequately taken into consideration, a court may consider only the Guidelines, policy statements, and official commentaries. Id. Appellate review of upward departure cases involves the application of a three-step analysis. First, we must determine whether the Guidelines adequately consider a particular factor so as to preclude a district court from relying upon it as a basis for departure. United States v. Shuman, 902 F.2d 873, 875-76 (11th Cir.1990). Over this question of law, we exercise de novo review. United States v. Simmons, 924 F.2d 187 (11th Cir.1991). If we determine that adequate consideration was not given to the circumstance, we must then decide whether consideration of the circumstance is consistent with the goals of the Sentencing Guidelines. United States v. Shuman, 902 F.2d 873, 875-76 (11th Cir.1990). Second, we must determine whether there exists sufficient factual support for the departure. Id.; United States v. Asseff, 917 F.2d 502, 505 (11th Cir.1990). This review requires evaluation of the district court’s factual findings under the clearly erroneous standard. 18 U.S.C. § 3742(e); United States v. Simmons, 924 F.2d 187 (11th Cir.1991). Finally, if the circumstance was properly taken into account, we must determine whether the extent of the departure from the guideline range was reasonable. United States v. Shuman, 902 F.2d 873, 875-76 (11th Cir.1990); 18 U.S.C. § 3742(e)(3). In this evaluation as well, we must “give due regard to the opportunity of the district court to judge the credibility of the witnesses ... and give[] due deference to the district court’s application of the Guidelines to the facts.” 18 U.S.C. § 3742(e); see also United States v. Simmons, 924 F.2d 187 (11th Cir.1991). The district court in this case cited as an aggravating circumstance the appellants’ willful refusal to turn over the proceeds of the theft. The court noted that “[defendants cannot usually expect to have the fruits of the crime waiting for them at the end of their prison time. They do not ordinarily expect to keep the proceeds of the crime.” 716 F.Supp. 1452 at 1455. We agree with the district court that this willful, continuing scheme to profit from their illegal activity is a factor not taken into consideration by the Sentencing commission in drafting the Guidelines. Contrary to appellant’s characterization, the quantity of the cash taken was not the motivation behind the upward departure. This would be an invalid basis for departure because the guideline governing theft explicitly provides for increasingly greater base offense levels, and hence increasingly greater punishment, depending on the value of the property stolen. See U.S.S.G. § 2B1.1; accord United States v. Chiarelli, 898 F.2d 373, 381 (3d Cir.1990) (where guideline governing receipt of stolen property provides increasing base offense levels depending on value of property received, enormous value of weapons received could not form basis for upward departure.) The unique factual characteristic which warrants departure in this case is the appellants’ blatant flouting of the law. As the district court noted, the Guidelines do not contemplate a scenario such as this where the appellants expect to exploit the criminal justice system and enjoy the fruits of their crime following a relatively short period of incarceration. Indeed, for the reasons which follow, we are satisfied that neither the Congress nor the Sentencing Commission would sanction such a result. While under our system we take pride and comfort in the generally accepted view that justice is blind, that blindness, however, extends only to matters irrelevant to a search for the truth. The instant defendants in this attempted ploy would appear to equate that hopeful view with a lack of rationality. Defendants’ efforts to diminish the belief that crime does not pay must fail. Because we have determined that there existed an aggravating circumstances not adequately taken into consideration in the Guidelines, we must determine, as we have, whether accounting for this circumstance is consistent with the goals of the Guidelines. Although the recent promulgation of the Sentencing Guidelines has focused the judiciary’s attention on achieving greater uniformity and proportionality in sentencing, the broader goals of criminal sentencing remain intact. These include the provision of just punishment, deterrence of criminal conduct and promotion of respect for the law. See 18 U.S.C. § 3553(a); United States v. Correa-Vargas, 860 F.2d 35, 40 (2d Cir.1988) (Guidelines must be read flexibly to promote just punishment, respect for law and adequate deterrence). All of these goals are served by the sentence imposed by the district court in the present case. People who engage in criminal conduct must not, and hopefully will not, be allowed to benefit from this conduct. To permit the appellants to keep the monetarily lucrative proceeds of.their crime and yet serve no more prison time than if the money had been surrendered or otherwise recovered, would make a mockery of our system of justice. Three years of incarceration is surely more palatable if $1.7 million is anticipated upon release. The appellants, and others like them, would be encouraged under such a system to transform the rule of law into a cost/benefit analysis. The Guidelines were never intended to sanction such a result. Consequently, we conclude that the district court’s consideration of the appellants’ continued intent to retain the proceeds of the theft is consistent with the goals of the Guidelines. Having determined that the district court properly considered the refusal to return proceeds of a theft as an aggravating circumstance, we must now determine whether there exists sufficient factual support for the departure. Appellants suggest that the circumstantial evidence available is insufficient to prove, by a preponderance of the evidence, that they are aware of the present location of the money. See United States v. Terzado-Madruga, 897 F.2d 1099, 1125 (11th Cir.1990) (preponderance of evidence standard applicable to fact finding at sentencing). Bearing in mind that we are constrained from reversing factual findings except for clear error, we believe that adequate factual support did exist. This is not a situation, as was suggested by the appellants, where the district court was left to speculation. Nor do we believe the burden was improperly shifted to the appellants to disprove their knowledge. The uncontra-dicted evidence available at the time of sentencing was that the appellants had taken approximately $1.7 million dollars and moved it to several spots around the country. Upon their arrest, only $50,000.00 was discovered. When the police investigated the last known hiding place of the money, none was found. The presence of the note reading “Suckers” strongly implies that the appellants knew the police were on their trail and had hidden the money elsewhere. Finally, the fact that appellant Valle was burning bank records when arrested also suggests that at least some of the money is deposited in a bank account, within the appellant’s de facto control. All of this taken together is more than sufficient to support the district court’s conclusion that the appellants knew where the money was and were in control of it. To require the Government to provide direct evidence that appellants have not already spent the money or otherwise disposed of it, is too high a burden and not, in our opinion, mandated by the law or the circumstances. Finally, we must determine whether the departure from the applicable guideline range and the imposition of 180 months was reasonable. . We begin by noting that 18 U.S.C. § 3742(e) requires appellate courts to “give due deference to the district court’s application of the Guidelines to the facts.” As we have previously stated, “[t]he district court is the front line of sentencing.” United States v. Collins, 915 F.2d 618 (11th Cir.1990). Nevertheless, this court should determine whether the sentence imposed served “ ‘the factors to be considered in imposing a sentence,’ generally, and ‘the reasons for the imposition of the particular sentence, as stated by the district court.’ ” United States v. Diaz-Villafane, 874 F.2d 43 (1st Cir.), cert. denied, — U.S. —, 110 S.Ct. 177, 107 L.Ed.2d 133 (1989) (citing 18 U.S.C. § 3742(d)(3)). Although 180 months is a severe departure from the applicable range of 37 to 46 months for Valle and 30 to 37 months for Gochis, as heretofore stated, we believe the sentences are appropriate and even necessary to insure respect for the law and, more specifically, to see that our system of punishment retains its deterrent effect. The district court properly considered an aggravating factor not adequately accounted for in the Guidelines. Furthermore, the district court’s departure, based on this factor, was, in our view, both reasonable and appropriate. Indeed, while we doubt the feasibility of drawing a bright line for the guidance of trial courts in considering a departure from the Guidelines, we suggest that any sentence called for under the Guidelines which is so disproportionate to the offense and the defendant’s conduct as to blatantly depreciate respect for the law is a prime target for a more intense consideration of a departure. III. For the foregoing reasons, we affirm the district court’s judgment with respect to both Jerry Valle and Jorge Gochis. AFFIRMED. . As stated supra, the maximum sentence under the Guidelines was, for Valle, 46 months and for Gochis, 37 months or a combined total of 83 months. The amount stolen was approximately 11.7 million — dividing that amount by 83 represents an amount of approximately $20,400 per month. . 18 U.S.C. § 3553(a) sets forth the factors to be considered in imposing sentence. They include the seriousness of the offense, deterrence, public protection, promotion of respect for the law, the indicated sentencing range under the Guidelines, policy statements of the Sentencing Commission, an avoidance of unwarranted disparities in sentencing. . Although the district court indicated that it would entertain a motion for reduction of sentence should the appellants experience a change of heart and turn over the money, such action would be beyond the court’s jurisdiction. Fed. R.Crim.P. 35(b) allows for a correction of sentence only on motion of the Government, and then only to reflect a defendant’s subsequent, substantial assistance in the investigation or prosecution of another person. 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_appfed	0	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. MINE HILL & SCHUYLKILL HAVEN R. CO. v. SMITH. Nos. 10171, 10172. United States Court of Appeals Third Circuit Argued June 9, 1950. Decided Oct. 4, 1950. Morse Garwood, Philadelphia, (Harold Evans, Philadelphia, Pa., MacCoy, Evans & Lewis, Philadelphia, Pa., on the brief), for appellant. Harry Baum, Sp. Asst, to Atty. Gen. (Theron Lamar Caudle, Asst. Atty. Gen., Ellis N. Slack, Sp. Asst, to Atty. Gen., and Gerald A. Gleeson, U. S. Atty., and Thomas J. Curtin, Asst. U. S. Atty., Philadelphia, Pa., on the brief), for appellee. Before MARIS, GOODRICH and KALODNER, Circuit Judges. KALODNER, Circuit Judge. These are appeals from judgments f&r the defendant entered by the District Court in two actions brought by the Mine Hill & Schuylkill Haven Railroad Company (“taxpayer”) for the recovery of income taxes. The cases involve a common question, but different tax years. They were consolidated for trial in the Court below and for argument in this Court. The facts as stipulated and found by the District Court may be summarized as follows : Taxpayer owns certain railroad lines in eastern Pennsylvania which are leased to the Reading Company under a 999 year lease entered into in 1896. The lease required the Reading Company to maintain the lines in good order and repair, but expressly excepted from this requirement any lines or portions thereof “which are or may be from time to time used exclusively by any one colliery which is now or may hereafter be abandoned, or the working thereof may be discontinued, or which does not furnish and supply sufficient traffic to pay the needful repairs and expenses of the portion of said railroad leading to said colliery.” No. 10,171 In 1941 taxpayer and the Reading Company jointly filed an application with the Interstate Commerce Commission for a certificate of public convenience permitting taxpayer to abandon certain branch lines of a total distance of 5.89 miles. The application and Return to Questionnaire stated that these lines had not been operated or maintained since 1933, that practically all the ties were decayed and a substantial part of the rails and track materials had been stolen, that there had been no train service or traffic over them for many years, and that the collieries which these lines were constructed to serve had been abandoned for some years. In 1942 the Interstate Commerce Commission granted the application on the grounds requested and issued a certificate of convenience authorizing taxpayer and the Reading Company to abandon the lines. In its income tax return for 1942 taxpayer claimed a loss deduction of $95,078.05, on the theory that the lines had been abandoned in that year. The amount of loss claimed represented taxpayer’s investment in the lines less salvage value. The Commissioner disallowed the claim. The taxpayer then paid the resulting deficiency and when its claim for refund was rejected brought suit in the District Court. No. 10,172 In 1943 taxpayer and the Reading Company jointly filed another application with the Interstate Commerce Commission for a certificate of public convenience permitting taxpayer to abandon a certain branch line of a total distance of 2.06 miles. The application and Return to Questionnaire stated that the line had not been operated or maintained for the past 12 years, the track proposed to be abandoned was in a poor state of maintenance with some of the rails and ties missing, that there had been no train service or traffic over it for many years, and that the colliery served by it 'had long since been abandoned. Within the same year the Interstate Commerce Commission granted the application on the grounds requested and issued a certificate of convenience authorizing taxpayer and the Reading Company to abandon the line. In its income tax return for 1943 taxpayer claimed a loss deduction of $69,324.28, on the theory that the line had been abandoned in that year. The amount of loss claimed represented taxpayer’s investment less estimated salvage value. Actual salvage exceeded the estimated salvage, reducing the claimed loss to $68,060.22. The Commissioner disallowed the loss. Taxpayer paid the resulting deficiency and when its claim for refund was rej ected, brought suit in the District Court. Discussion The crux of the issue presented to the District Court was when the losses resulting from the abandonment of the branch lines involved actually occurred. The taxpayer claimed that they occurred in the years in which the Interstate Commerce -Commission issued certificates of convenience authorizing taxpayer and the -Reading Company to abandon the lines.- The District Court subscribed to the prior determination of the Commissioner of Internal Revenue that the lines were actually abandoned in years preceding the action of the Interstate Commerce Commission. Applicable to.the issue are the following well-settled principles; To be deductible losses of the type asserted by the taxpayer must have been sustained in fact during the taxable year; determination of the year of loss calls for “a practical, not a legal, test”.and requires a consideration of all pertinent facts and circumstances, regardless of their objective or subjective nature; the standard for determining the year fo-r the deduction of a loss “is a flexible one, varying according to the circumstances of each, case” ; the taxpayer’s conduct and attitude are to be considered but they are not decisive; the taxpayer has the burden of establishing that a claimed deductible loss was sustained in the taxable year; the question as to the year when the loss was ‘sustained is purely one of fact to be determined in the first instance by the trier of the facts; the circumstance that the facts are stipulated does not make the issue any less factual in nature; the trier of the facts is entitled to draw whatever inferences and conclusions it deems reasonable from such facts; it is immaterial that different conclusions might fairly be drawn from the undisputed or stipulated facts and the appellate court is limited to a consideration whether the fact finding was “clearly erroneous” and the decision of the trial court was “in accordance with law”; and finally, the requirements of the interstate Commerce Act, 49 U.S.C.A. § 1 et seq., are not determinative of liability under the Revenue Act. We must immediately note, in applying the principles stated to the situation here, that it is our function merely to determine whether the District Court erred as a matter of law and whether its fact-finding was “clearly erroneous”. The substance of the taxpayer’s position is (1) the taxpayer had no knowledge that the branch lines in question were not being maintained; (2) there was nothing in the record to sustain the District Court’s finding that the taxpayer or its lessee intended to abandon prior to the Interstate Commerce Commission proceedings; (3) there must be a coincidence of intention to abandon with the act of abandonment and proof of non-use is not alone sufficient; and (4) there could not have been a lawful abandonment of the branch lines without the permission of the Interstate Commerce Commission under the terms of the Interstate Commerce Act as amended by the Transportation Acts of 1920 and 1940, and consequently the years of abandonment were the years in which the Commission granted its permission. As to taxpayer’s first point it is only necessary to stale that under the principles cited its lack of knowledge, assuming it to he so, was not decisive on the question of abandonment. As to its second point, which demonstrates disagreement with the District Court’s fact finding, we need only state that we do not find such finding “clearly erroneous” in view of the disclosure in the record that the rail lines had not been used for many years following abandonment of the collieries which they had served; that the railroad ties were decayed and a substantial part of the rails and track materials had been stolen. As to taxpayer’s third and fourth points, which are based on its view of the law, we need only state as to the former that under Boehm v. Commissioner of I. R., cited in Footnote 7, there need not he a coincidence of intention of abandonment with the act of abandonment and that the act alone is sufficient, and as to the fourth point, that under Old Colony R. Co. v. Commissioner of 1. R. and Kansas City Southern Ry. Co. v. Commissioner of I. R. cited in Footnote 8, the requirements of the Interstate Commerce Act are not, as previously pointed out, determinative of liability under the Revenue Act. In sum, upon consideration of the record, the District Court’s findings of fact and its clear and exhaustive discussion of the testimony and applicable law, we are of the opinion that the taxpayer has failed to establish either error of law or such clear error of fact as would require reversal. For the reasons stated the judgments of the District Court will be affirmed. . The application set forth the following reasons for requesting the certificate: “(a) As shown in answer to Question No. 2, the branches and portions of branches involved in this application were constructed and have been used exclusively to serve anthracite collieries and washeries which have been abandoned for some years. * * * “(b) No train service has been operated for the past seven to thirteen years over the lines of railroad which applicants here seek to abandon, and no need for future train service over these lines is anticipated. “(c) Applicants desire to salvage the rails and other track materials remaining on the lines of railroad in question before they are stolen.” (file Return to Questionnaire stated in reply to Question 4 (Exhibit 3): “Practically all the ties on the portions of line here sought to be abandoned are decayed and a substantial part of the rails and track materials has been stolen.” . The certificate recited that: “The collieries located on the segments have been abandoned for many years. The last train movement over any portion of the lines sought to be abandoned was more than seven years ago. Since discontinuance of service, maintenance has been neglected, practically all the ties have decayed, and a substantial part of the rail and track material has been stolen. The total net salvage value of the recoverable material is estimated by the applicants to be $5,096. There are no stations on the lines, and few, if any, inhabitants in the territories tributary thereto.” . The application set forth the following reasons for requesting the certificate: “Applicants desire to abandon the line since it no longer serves any industry, train service has not been operated there-over within the last twelve years, and applicants desire to salvage the rails and other track materials remaining in the line so as to put the same to economic use and to prevent theft thereof.” The Return to Questionnaire stated in reply to Question 4 (Exhibit 3): “The track proposed to be abandoned is in a poor state of maintenance with some of the rails and ties missing.” , The certificate recited that: “The anthracite colliery formerly served long since has been abandoned, and no trains have operated over the line for at least 12 years. Few, if any, inhabitants reside in the tributary territory, and no one is dependent upon the line for transportation service. In its isolated location the track materials are subject to theft, and the applicants desire to salvage such rails and fastenings as may still remain for use on other parts of their system or for scrap purposes,” . The opinion of the District Court in No. 10,172 is .reported at 88 F.Supp. 803. The opinion in.No. 10,171 is not reported. . Section 23(f) of the Internal Revenue Code, 26 U.S.C.A. § 23 authorizes a deduction from gross income of “losses sustained during the taxable year and not compensated for by insurance or otherwise.” ' Section 29.23 (e)-l of Treasury Regulations lll’p'rovidcs that the-loss must be “actually sustained during the taxable pe=riod for which allowed”, and “substance and not mere form will govern in determining taxable loss”. Section 29.23(e)-3 of the Regulations provides that in the case of “Doss of Useful Value” of business assets, the difference between the basis, of the property and its salvage value may be claimed for the year in which the loss occurs, “When, through some change in business conditions the usefulness in the business of some or all of the capital assets is suddenly terminated, so that the taxpayer discontinues the business or discards such assets permanently from use in such business.” Section 29.2,3 (f)-l makes the relative provision of Sec. 29.23(e) applicable to corporations as well as individuals. . Boehm v. Commissioner I. R., 1945, 326 U.S. 287, 292, 293, 66 S.Ct. 120, 124, 90 L.Ed. 78, 166 A.L.R. 708, rehearing denied, 326 U.S. 811, 66 S.Ct. 468, 90 L.Ed. 495; Lucas v. American Code Co., 1930, 280 U.S. 445, 449, 50 S.Ct. 202, 74 L.Ed. 538, 67 A.L.R. 1010; Rule 52(a), Federal Rules of Civil Procedure, 28 U.S.C.A.; United States v. U. S. Gypsum Co., 1948, 333 U.S. 364, 394, 395, 68 S.Ct. 525, 92 L. Ed. 746; United States v. Yellow Cab Co., 1949, 338 U.S. 338, 341, 342, 70 S.Ct. 177. . Old Colony R. Co. v. Commissioner I. R., 1932, 284 U.S. 552, 562, 52 S.Ct. 211, 76 L.Ed. 484; Kansas City Southern Ry. Co. v. Commissioner of I. R., 8 Cir.; 1931, 52 F.2d 372, certiorari denied 284 U.S. 676, 52 S.Ct. 131, 76 L.Ed. 572. Question: What is the total number of appellants in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number. Answer:
songer_state	33	What follows is an opinion from a United States Court of Appeals. Your task is to identify the state or territory in which the case was first heard. If the case began in the federal district court, consider the state of that district court. If it is a habeas corpus case, consider the state of the state court that first heard the case. If the case originated in a federal administrative agency, answer "not applicable". Answer with the name of the state, or one of the following territories: District of Columbia, Puerto Rico, Virgin Islands, Panama Canal Zone, or "not applicable" or "not determined". Sheldon ABISH, et al., Appellees, v. NORTHWESTERN NATIONAL INSURANCE COMPANY OF MILWAUKEE, WIS., Appellant. No. 703, Docket 90-7668. United States Court of Appeals, Second Circuit. Argued Dec. 20, 1990. Decided Jan. 23, 1991. Iris S. Richman (Richard L. Gold, and Sylvor, Schneer, Gold & Morelli, New York City, N.Y., on brief), for appellees Abish, Bard, Katz and Rudes Investors. Douglas M. Robison, and Page & Addison, John T. Palter, and Geary, Stahl & Spencer, Dallas, Tex., submitted a brief, on behalf of appellees Breese Investors. H. Adam Prussin (Dennis J. Block, Timothy B. Parlin, and Weil, Gotshal & Manges, New York City, on brief), for appellant Northwestern Nat. Ins. Co. of Milwaukee, Wis. Before TIMBERS, MESKILL and PRATT, Circuit Judges. TIMBERS, Circuit Judge: Appellant Northwestern National Insurance Company of Milwaukee, Wisconsin (Northwestern) appeals from an order entered July 11, 1990 in the Southern District of New York, Leonard B. Sand, District Judge, denying its motion for quia timet and exoneration relief. In re Gas Reclamation, Inc. Sec. Litig., 741 F.Supp. 1094 (S.D.N.Y.1990). On appeal, Northwestern contends that the district court erred in denying it quia timet and exoneration relief — forms of equitable relief said to be traditionally available to sureties. It contends that, having satisfied the requisite elements for those forms of relief as against the principals, appellees Abish, Bard, Katz, Rudes, and Breese Investors (collectively appellees or investors), it was entitled to enforcement as a matter of law. In raising this claim of error on appeal, Northwestern contends that we may exercise appellate jurisdiction pursuant to 28 U.S.C. §§ 1291 and 1292(a)(1) (1988). On the other hand, the investors contend that the district court properly denied appellant’s motion for quia timet and exoneration relief. The investors filed a separate motion to dismiss this appeal, contending that we lack appellate jurisdiction. For the reasons which follow, we hold that we do not have appellate jurisdiction. Accordingly, we dismiss the appeal. In light of our holding, we express no views on the merits of Northwestern’s claims. I. We summarize only those facts and prior proceedings believed necessary to an understanding of the issues raised on appeal. This appeal represents another chapter in a continuing saga emanating from the investors’ purchase of Gas Reclamation Units (units) from Gas Reclamation, Inc. (GRI). For the purposes of this appeal, we assume familiarity with facts previously stated in various published decisions. In re Gas Reclamation, Inc. Sec. Litig., 733 F.Supp. 713 (S.D.N.Y.1990); In re Gas Reclamation, Inc. Sec. Litig., [1987 Transfer Binder] Fed.Sec.L.Rep. (CCH) ¶ 93,731 (S.D.N.Y. April 29, 1988); In re Gas Reclamation, Inc. Sec. Litig., 659 F.Supp. 493 (S.D.N.Y.1987). The investors purchased units from GRI pursuant to a private placement memorandum dated April 12, 1984. To finance their purchase of the units, the investors executed promissory notes (notes). . The notes were payable to or eventually acquired by Connecticut National Bank, Ensign Bank FSB, Morris County Savings Bank, and Pri-vatbanken A/S (collectively, the banks). Each note required quarterly payments of interest and principal over a term of approximately four and one-half years. Interest on the notes was calculated at a specified percentage over the prime rate. As a condition to the execution of the notes, the investors contracted with Northwestern to act as surety. Northwestern issued surety bonds which guaranteed payment of principal and interest to the banks in the event of a default by the investors. Northwestern and the investors also executed an indemnification agreement whereby the investors promised to reimburse Northwestern for any damages it might incur under the surety bonds. GRI ceased operations and subsequently filed for bankruptcy in February 1985. Having not received any income from their investments, virtually all of the investors defaulted on the notes. After the investors defaulted, the banks demanded payment from Northwestern pursuant to the surety bonds. Northwestern made payments on the notes from early 1985 until October 1987. In October 1987, Northwestern discontinued payment on the notes in response to the district court’s denial of motions to dismiss the investors’ complaint brought by various parties to the action. Individual investors began commencing actions as early as March 1985. Pursuant to an order of the Judicial Panel on Multi-district Litigation, this case, which consists of at least ten separate actions, was consolidated and transferred to the Southern District of New York for the resolution of pre-trial matters. The consolidated complaint alleged numerous security law violations and other claims against the banks and Northwestern. In response, Northwestern and the banks asserted counterclaims against the investors. The banks also asserted claims against Northwestern as guarantor pursuant to the surety bonds. In an opinion dated April 9, 1987, the district court denied a motion to dismiss the consolidated complaint brought by numerous parties including Northwestern and the banks. In re Gas Reclamation, Inc. Sec. Litig., supra, 659 F.Supp. 493. After completion of discovery, the banks and investors discontinued their claims against each other. On February 28, 1990, the banks moved for summary judgment against Northwestern as surety for all amounts owed by the investors under the note agreement. On March 18, 1990, in response to the banks’ motion for summary judgment, Northwestern filed a motion in the district court for an order compelling the investors, as the parties primarily liable, to pay all amounts due and owing under the promissory notes held by the banks. In the alternative, Northwestern claimed that the court should order the investors to pay money into the court as security. In requesting this relief, Northwestern sought to enforce its equitable rights of quia timet and exoneration. In an opinion dated July 11, 1990, the district court denied appellant’s motion for quia timet and exoneration relief. In re Gas Reclamation, Inc. Sec. Litig., supra, 741 F.Supp. 1094. The court began its analysis by recognizing the existence and nature of these equitable rights: “Exoneration is the equitable right of a surety to compel its principal to pay his or her debt and thereby discharge the surety’s obligation under its bond. See Filner v. Shapiro, 633 F.2d 139, 142 (2d Cir.1980); Admiral Oriental Line v. United States, 86 F.2d 201, 204 (2d Cir.1936) (“In equity, ... before paying the debt a surety may call upon the principal to exonerate him by discharging it; he is not obligated to make inroads into his own resources when the loss must in the end fall upon the principal.”) (citations omitted); Restatement of Security § 112 (1941). Quia timet is the right of the surety to compel its principal to place the surety ‘in funds’ sufficient to prevent anticipated future losses, where a surety has reasonable grounds to believe that its principal will not perform his obligations .... ” Id. at 1104. While the court stated that these claims exist independent of the surety’s right to indemnification, it declined to separate the investors’ claims against Northwestern from Northwestern’s claims for exoneration and quia timet relief. The court surmised that, if the investors succeed at trial on their claims, all of which have survived Northwestern’s motion to dismiss and motion for summary judgment, then they would have a right to offset those claims against the relief that Northwestern sought. Having concluded in a prior summary judgment that the investors had no defense to the payment of the notes, the question for the court became who should bear the burden of advancing funds during the pendency of the litigation between Northwestern and the investors. Initially, the court emphasized that the banks are “clearly entitled” to seek payment from Northwestern instead of the investors. Without citing relevant case law, the court concluded that “equitable considerations require Northwestern to make the required payments to the banks and wait until the conclusion of trial for reimbursement, if any, from the investors.” Id. at 1105-06. In denying Northwestern’s motion for quia timet and exoneration relief, the court distinguished three district court cases where Northwestern successfully sought to enforce its rights of quia timet and exoneration pursuant to a motion for a preliminary injunction. Northwestern Nat’l Ins. Co. v. Alberts, 741 F.Supp. 424 (S.D.N.Y.1990) (appeal pending); Wingsco Energy One v. Vanguard Groups Resources 1984, Inc., No. 86-452 (S.D.Tex. Nov. 15, 1989); Northwestern Nat. Ins. Co. v. Barney, No. 86-3936 (N.D.Ohio Nov. 18, 1988). The court held that in those cases, where the standards for issuance of a preliminary injunction were applied, each district court concluded that Northwestern was likely to succeed on the merits. By contrast, in considering the claims before it in the instant ease, the court concluded that “the investors have made a more significant showing of the merits of their claims against Northwestern.” In re Gas Reclamation, Inc. Sec. Litig., supra, 741 F.Supp. at 1106. On appeal, Northwestern contends that the district court erred in denying its motion for quia timet and exoneration relief. In response, the investors contend that the district court properly denied the requested relief. The investors also move to dismiss this appeal for lack of appellate jurisdiction. II. As a threshold matter, we turn to the investors’ contention that we lack appellate jurisdiction. In its notice of appeal, Northwestern denominated “28 U.S.C. § 1291 and/or § 1292” as the basis for appellate jurisdiction. (A) We first address Northwestern’s contention that appellate jurisdiction is founded upon 28 U.S.C. § 1291. Although § 1291 is alluded to in Northwestern’s notice of appeal, its memorandum in opposition to ap-pellees’ motion to dismiss conspicuously omits any further reference to § 1291 as a basis for appellate jurisdiction. In any event, we need not tarry long with this asserted basis for appellate jurisdiction. Clearly the district court’s order does not constitute a “final decision” within the meaning of § 1291. Catlin v. United States, 324 U.S. 229, 233 (1945) (“[a] ‘final decision’ generally is one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment”). Neither does the order deny rights which are “completely separate” from the merits of the action so as to satisfy the requirements of the collateral order doctrine. Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978). We hold that the district court order is not appealable pursuant to 28 U.S.C. § 1291. (B) Northwestern further contends that we have jurisdiction pursuant to 28 U.S.C. § 1292(a)(1). Specifically, Northwestern contends that its request for quia timet and exoneration relief in effect was a request for an injunction as defined under § 1292(a)(1). Further, Northwestern contends that it sought an injunction from the district court as “an alternative mechanism of enforcement of its rights.” We disagree with Northwestern’s contention that its claims for equitable relief below satisfy the definition of an injunction for the purposes of § 1292(a)(1). Similarly, we reject Northwestern’s suggestion that it actually sought an injunction as an alternate form of relief in the district court. In disposing of Northwestern’s latter contention first, we look to Northwestern’s memorandum in support of its motion for quia timet and exoneration relief before the district court. Northwestern specifically stated that “[its] present motion does not seek a preliminary injunction; therefore, the special requirements for such relief need not be met here.” The district court was not asked to grant injunctive relief nor did the court construe Northwestern’s motion as one for a preliminary injunction. Indeed, in denying the motion for quia timet and exoneration relief, the district court distinguished those cases where Northwestern requested a preliminary injunction to enforce its equitable rights. In re Gas Reclamation, Inc. Sec. Litig., supra, 741 F.Supp. at 1106. Northwestern’s fleeting reference to other decisions which have granted quia timet and exoneration relief pursuant to a preliminary injunction cannot be characterized seriously as a request for alternate relief. We are not persuaded by Northwestern’s argument, coming this late in the day, that it sought a preliminary injunction as an alternate form of relief from the district court. Indeed, this post hoc contention is apparently little more than a ruse to establish appellate jurisdiction. Realizing that it could not satisfy the standards for issuance of a preliminary injunction in the district court, Northwestern, aided by experienced counsel, expressly sought an order pursuant to the district court’s general equity powers. On appeal, Northwestern resurrects this theory, which it apparently strategically rejected below, solely to serve as a predicate for appellate jurisdiction. We have held on prior occasions that, where a party has failed to press a claim below, it will be precluded from doing so for the first time on appeal. E.g., Fleming v. New York Univ., 865 F.2d 478, 481 (2 Cir.1989) (argument that was not made below is “precluded” on appeal); Grace Towers Tenants Assoc. v. Grace Housing Dev. Fund Co., 538 F.2d 491, 495 (2 Cir.1976) (“[b]y failing to urge this claim below, plaintiff may be held to have waived it”). Accordingly, we reject Northwestern’s contention that it sought preliminary in-junctive relief below. We hold that Northwestern sought relief from the district court based solely on its general equitable powers. (C) This brings us to Northwestern’s claim that, “even if the district court’s order is viewed as deriving solely from its inherent equitable powers, the mandatory equitable relief requested here constitutes an injunction for the purposes of § 1292(a)(1).” Northwestern relies on Korea Shipping Corp. v. New York Shipping Ass’n, 811 F.2d 124, 126 (2 Cir.1987), where we acknowledged that certain orders entered pursuant to the district court’s equity powers have the “practical effect” of a preliminary injunction. While we agree that the order sought in the instant case would have the effect of a preliminary injunction, Northwestern fails to satisfy the remaining requirement for appealability articulated in Korea Shipping. Section 1292(a)(1) provides that a party may appeal from “[ijnterlocutory orders of the district courts ... granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions .... ” Although there is a dearth of legislative history relating to the enactment of § 1292(a)(1), it appears that Congress recognized a need to “ ‘permit[ ] litigants to effectually challenge interlocutory orders of serious, perhaps irreparable, consequence.’ ” Carson v. American Brands, Inc., 450 U.S. 79, 84 (1981) (quoting Baltimore Contractors, Inc. v. Bodinger, 348 U.S. 176, 181 (1955)). While Congress presumably acted with this goal in mind, caution should be exercised in interpreting this exception to the final judgment rule. “Unlike some state procedures, federal law expresses the policy against piecemeal appeals. Hence we approach this statute somewhat gingerly lest a floodgate be opened that brings into the exception many pretrial orders.” Switzerland Cheese Assoc., Inc. v. E. Horne’s Mkt., Inc., 385 U.S. 23, 24 (1966) (citation omitted). Cognizant of these interests, the Supreme Court has held that “[ujnless a litigant can show that an interlocutory order of the district court might have a ‘serious, perhaps irreparable, consequence,’ and that the order can be ‘effectually challenged’ only by immediate appeal, the general congressional policy against piecemeal review will preclude interlocutory appeal.” Carson, supra, 450 U.S. at 84 (citation omitted). Consistent with the Court’s holding in Carson, we have articulated what types of orders are appealable injunctions for the purposes of § 1292(a)(1). Korea Shipping, supra, 811 F.2d at 126. We first acknowledged the generic proposition advanced by courts and commentators that “an order directed to a party, enforceable by contempt, and designed to accord or protect some or all of the substantive relief sought by a complaint” is a preliminary injunction for the purposes of § 1292(a)(1). Id. (citing United States v. Western Elec. Co., 777 F.2d 23, 28 n. 12 (D.C.Cir.1985)); see also Cohen v. Board of Trustees of Univ. of Medicine and Dentistry, 867 F.2d 1455, 1465 n. 9 (3 Cir.1989) (in banc); I.A.M. Nat’l Pension Fund v. Cooper Indus., Inc., 789 F.2d 21, 24 (D.C.Cir.1986); 16 Wright, Miller, Cooper & Gressman, Federal Practice and Procedure § 3922 (1977). We concluded, however, that the “proffered definition is incomplete”. Korea Shipping, supra, 811 F.2d at 126. In order to satisfy the definition of “preliminary injunction” within the meaning of § 1292(a)(1), the appealing party must also demonstrate that it faces “ ‘serious, perhaps irreparable, consequences’ ”. Id. (quoting Carson, supra, 450 U.S. at 84). Although Korea Shipping attached considerable significance to the fact that the party was seeking, in effect, an injunction pursuant to statutory authorization, we conclude that the principles articulated are equally applicable to a case where the district court acts pursuant to its equity powers. To be sure that no such statutory limitation was intended, we need only point to a recent decision of the Supreme Court which abolished the antiquated legal-equitable distinction governing the appealability of stays under § 1292(a)(1) and reaffirmed the principle that “orders that have the practical effect of granting or denying injunctions and have ‘ “serious, perhaps irreparable, consequence,” ’ ” are appealable. Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 287-88 (1988) (citations omitted). Applying to the instant case the principles formulated in decisions of the Supreme Court and most recently by our court in Korea Shipping, we fail to see how an order denying quia timet and exoneration relief will cause serious or irreparable consequences. Northwestern contends that irreparable harm will ensue since it will be deprived permanently of its equitable rights of quia timet and exoneration. In determining whether irreparable harm exists, the critical inquiry is not whether the surety’s rights are lost, but whether the loss of those rights will cause serious or irreparable harm. Behind Northwestern’s claim for quia timet and exoneration relief, it is evident that both rights merely contemplate money payments during the pendency of the action. The nature of the relief sought being monetary compensation, there is no reason why Northwestern cannot be made whole upon resolution of the merits. We have often held that “irreparable injury means injury for which a monetary award cannot be adequate compensation”. Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2 Cir.1979) (per curiam); see also JSG Trading Corp. v. Tray-Wrap, Inc., 917 F.2d 75, 79 (2 Cir.1990); Tucker Anthony Realty Corp. v. Schlesinger, 888 F.2d 969, 975 (2 Cir.1989); Sperry Intern. Trade, Inc. v. Government of Israel, 670 F.2d 8, 12 (2 Cir.1982). In a few instances, however, we have recognized exceptions to this general rule and found irreparable harm where a party sought only money damages. E.g., Tucker, supra, 888 F.2d at 975 (monetary award post-judgment would be insufficient to prevent plaintiffs insolvency); In re Feit & Drexler, Inc., 760 F.2d 406, 416 (2 Cir.1985) (threat of extra-jurisdictional transfer or dissipation of assets); see also United States v. First Nat’l City Bank, 379 U.S. 378, 385 (1965) (same). None of those exceptions is present here. Northwestern does not contend that it would be rendered insolvent or that investor funds may be transferred or dissipated in any manner. In short, Northwestern’s only complaint seems to be that it was compelled to honor the surety agreement. Northwestern’s claim of irreparable harm is belied further by the fact that it first raised its claim for quia timet and exoneration relief nearly four years after the investors first defaulted. It strains credulity to assert that Northwestern will sustain irreparable consequences after standing mute for so long. Since Northwestern can be made whole by money damages upon resolution of the merits, it will not sustain irreparable consequences as a result of denial of its motion for quia timet and exoneration relief. We hold that the district court’s order is not an appealable preliminary injunction for the purposes of § 1292(a)(1). III. To summarize: We hold that the district court’s order denying Northwestern’s motion for quia timet and exoneration relief is not appeal-able pursuant to either 28 U.S.C. § 1291 or § 1292(a)(1). Northwestern appeals from neither a final decision nor an appealable collateral order under 28 U.S.C. § 1291. Moreover, the district court order is not an appealable preliminary injunction pursuant to § 1292(a)(1) since Northwestern fails to demonstrate that it will sustain serious or irreparable consequences. In light of our holding, we express no view on the merits. Appeal dismissed. Costs to appellees. 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. NORTHWEST AIRLINES, INC.; Simmons Airlines, Inc.; Piedmont Aviation, Inc.; Comair, Inc.; Midway Airlines, Inc.; USAir, Inc.; American Airlines, Inc.; and United Airlines, Inc., Plaintiffs-Appellants, v. COUNTY OF KENT, MICHIGAN; the Kent County Board of Aeronautics; and the Kent County Department of Aeronautics, Defendants-Appellees. Nos. 90-1811, 90-2117. United States Court of Appeals, Sixth Circuit. Argued Sept. 23, 1991. Decided Feb. 3, 1992. Rehearing En Banc Denied April 16, 1992. Dissent from Denial of Rehearing En Banc Filed May 7, 1992. Douglas E. Wagner, Christopher C. Williams, Mark S. Bransdorfer (briefed), Warner, Norcross & Judd, Grand Rapids, Mich., Walter A. Smith, Jr. (argued), Hogan & Hartson, Washington, D.C., Malcolm C. Mallette (briefed), James G. Mclntire, Krieg, DeVault, Alexander & Capehart, Indianapolis, Ind., for plaintiffs-appellants. Richard A. Kay, Mark S. Allard (briefed), Varnum, Riddering, Schmidt & Howlett, W. FredJHunting, Jr. (argued), briefed, Robert A. Buchanan, Law, Weathers & Richardson, Grand Rapids, Mich., for defendants-appellees. Before KENNEDY and NELSON, Circuit Judges, and CONTIE, Senior Circuit Judge. KENNEDY, Circuit Judge. Northwest, Simmons, Piedmont Aviation, Comair, Midway, USAir, American and United Airlines dispute the landing fees, terminal building rental rates, carrying charges, and crash/fire/rescue charges assessed them at the Kent County International Airport serving Grand Rapids, Michigan. The Airlines also argue that surplus revenue generated by the fees charged non-airline concessions should be cross-credited to reduce the fees charged to the Airlines. For the reasons stated below, we REVERSE and REMAND to the District Court to determine the proper allocation of fees between the Airlines and general aviation in regard to crash, fire and rescue costs. We AFFIRM the District Court’s dismissal of the Airlines’ claims under the Airport and Airway Improvement Act of 1982 and the Commerce Clause, its finding that the Airlines have no right to be cross-credited for concession revenues, the finding that the allocation of terminal rental fees between the Airlines and concessions were reasonable, and the finding that the method the airport used to assess airside operation fees for general aviation and the Airlines was reasonable. I. The Kent County International Airport (“Airport”) is operated by the Kent County Aeronautics Board and the Kent County Department of Aeronautics (“defendants”), both departments of Kent County. The County is the owner and landlord of the Airport and its facilities. The Airport was originally financed by the issuance of general obligation bonds which were later retired through a tax levy. The Airport is a relatively small hub airport whose primary passengers consist of people with Western Michigan origins or destinations. The Airport is serviced by Northwest, Simmons, Piedmont Aviation, Comair, Midway, USAir, American and United Airlines (“Airlines”). The accounting methodology used by the Airport views the Airport as the landlord, and all users as tenants. This accounting system, developed by James C. Buckley, is known as the Buckley or compensatory “methodology” and is widely used by airports. The system is designed so that the Airlines are only charged for the land costs, physical facilities and other expenses which can be directly allocated to them. When using this system, the Airport first determines the cost basis of the land and facilities. Next, the usage of all areas is calculated and the various users are assigned rents that reflect their usage level. The costs are primarily divided among three groups: the Airlines, non-airline concessions, and general aviation. These users enter into leases with the Airport which establishes the fees and rates to be charged. The Airlines and the Airport negotiated and agreed on the fees to be charged through December 31, 1986. In 1986, a new rate study resulted in increased fees and the Airlines and Airport could not reach an agreement. Finally, on March 10, 1988, the airport passed an ordinance which unilaterally increased the fees. On April 1, 1988, this case was filed challenging the ordinance rates and the rates charged subsequent to December 31, 1986. The Airlines specifically dispute the landing fees of 70.21 cents per 1,000 lbs., the terminal building rental rates, the carrying charge, the fact that general aviation was not also charged based on their costs, and the Airport’s allegedly excessive fund balance. II. Prior to the trial in this case, the District Court ruled on cross motions for summary judgment. The District Court held that the Airlines did have a private right of action under the Anti-Head Tax Act (“AHTA”) and denied the Airport’s motion for summary judgment. It also held, however, that the Airlines had no right of action under the Airport and Airway Improvement Act or the Interstate Commerce Clause of the United States Constitution. We agree with the District Court. The defendants first claim that the Airlines are precluded from challenging the current rates in federal court under either the AHTA or Airport and Airway Improvement Act of 1982 (“AAIA”) because they failed to exhaust their administrative remedies. The defendants argue that the Airlines must first raise any claims with the Secretary of Transportation under the AAIA before any claims may be made in the District Court. In Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), the Supreme Court established four factors to be used in determining whether Congress intended to create an implied right of action. These factors are: First, is the plaintiff “one of the class for whose especial benefit the statute was enacted” ... ? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? And finally, is the cause of action one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law? Id. at 78, 95 S.Ct. at 2088 (quoting Texas & Pacific Ry. Co. v. Rigsby, 241 U.S. 33, 39, 36 S.Ct. 482, 484, 60 L.Ed. 874 (1916)) (emphasis in original; citations omitted). The Supreme Court has placed increasing emphasis on the second factor — the intent of Congress. Touche Ross & Co. v. Redington, 442 U.S. 560, 575-76, 99 S.Ct. 2479, 2489, 61 L.Ed.2d 82 (1979); Niagara Frontier Transp. Auth. v. Eastern Airlines Inc., 658 F.Supp. 247 (W.D.N.Y.1987). Several courts have found that the AHTA satisfies all the Cort factors and that a private right of action exists. Interface Group, Inc. v. Massachusetts Port Auth., 816 F.2d 9 (1st Cir.1987); Niagara, 658 F.Supp. at 247. Most importantly, the intent of Congress to grant a private right of action seems inherent in the language of the statute satisfying the second Cort factor. The AHTA expressly prohibits states from levying “a tax, fee, head charge, or other charge, directly or indi-rectly....” 49 U.S.C.A. App. § 1513(a) (West Supp.1991). As noted by the First Circuit, this statute does not mention the Secretary of Transportation nor an administrative or judicial enforcement scheme like those created in similar statutes. Interface Group, 816 F.2d at 16. In addition, the other Cort factors are also met. Private enforcement furthers the purposes of the statute by ensuring that airlines will file claims that individuals may lack the time and expenses to pursue. The AHTA also clearly identifies the class to be protected. We find that the Airlines had no duty to exhaust administrative remedies as to the statutory claims made under section 1513. The Airlines face different administrative requirements under 49 U.S.C.A.App. § 2210, the AAIA. A review of the Cort factors indicate that Congress intended that there would be no private right of action under section 2210. The statute provides that assurances must be' given to the Secretary of Transportation regarding the reasonable terms and rates of an airport development project. 49 U.S.C.A. App. § 2210 (West 1991); Interface Group, 816 F.2d at 15. This provision indicates that Congress intended to establish an administrative enforcement scheme. The AHTA and the AAIA do not cover similar issues or provide similar remedies. The AHTA addresses state taxation of air commerce for which recovery of unreasonable taxation or fees would be the remedy. The AAIA, on the other hand, requires certain assurances to be made prior to approval of an airport development project. Failure to make these assurances would result in denial of the grant. For this reason, all claims against the defendants under the AAIA were properly dismissed for failure to exhaust administrative remedies. Second, the defendants assert that the Airlines are estopped or have waived their rights to object to the methodology and fees adopted by the defendants. They base this argument on the Airlines’ failure to protest the fees during the twenty previous years. As support, they point to a December 22, 1983 letter from John Sorensen of United Airlines, then serving as the negotiator for all the Airlines, which they claim acknowledges the reasonableness of the rates. The defendants’ argument is without merit. The complaint filed by the Airlines clearly states that the protested fees were reportedly adopted on March 10, 1988 and became effective on April 1, 1988. The past fees referred to in the complaint are only those fees assessed subsequent to the contract which expired on December 31, 1986. The assessed fees do not represent rates which were agreed upon after negotiation. Rather, they are fees which were charged during the negotiation period. None of the protested fees or the requested remedies involves fees assessed under past contracts. The Airlines are not precluded from bringing a judicial challenge to rates because in the past they agreed to different assessed rates. The rates agreed to in the past are the result of negotiations between the Airlines, the County, and the Airport. Northwest Airlines, Inc. v. County of Kent, Mich., 738 F.Supp. 1112, 1114 (W.D.Mich.1990). Only in 1988, when negotiations were unproductive, were these claims brought. Finally, defendants argue that the Airlines do not have standing to raise issues based on rates, fees or charges to passengers and other non-aeronautical users of the airport. Defendants assert that the Airlines must show a causal connection between the damages they claim and the defendants’ acts. See In Re Air Passenger Computer Reservation Sys., 727 F.Supp. 564, 568 (C.D.Cal.1989). While it is clear that section 1513 gives the airlines a private right of action, the private right of action given in the statute to passengers may not be asserted by the airlines. The legislative history of the AHTA recognizes that by banning unreasonable taxes on the carriage of air passengers, the statute also prevents those unreasonable taxes from being passed on to the consumer. See S.Rep. No. 12, 93d Cong. 1st Sess., reprinted in 1973 U.S.Code Cong. & Admin.News 1434, 1451; Interface Group, 816 F.2d at 16. Thus, the airlines ensure fair rates in a situation where the charges may be passed through the airlines to the consumer. Individual consumers in these situations may not contest the charges because of financial or time constraints. However, this reasoning does not apply in cases where the charges are being assessed directly to the passengers or other airport users. In these cases, users feel the direct impact of the charges and many, such as the concessionaire, are capable of asserting the claims. For the above reasons, we find that the Airlines have no standing to assert the claims of the non-airline airport users or passengers. III. The AHTA prohibits the imposition of any fee on “persons traveling in air commerce or on the carriage of persons traveling in air commerce” which are unreasonable. 49 U.S.C.A.App. § 1513(a) (West Supp.1991). Reasonable fees on “aircraft operators for the use of airport facilities” are allowed. The statute does not provide guidance for determining what constitutes a reasonable fee. The Seventh Circuit, in Indianapolis Airport Auth. v. American Airlines, Inc., 733 F.2d 1262 (7th Cir.1984), held that fees “wholly disproportionate” to the costs of serving the airline and airline passengers were unreasonable. The plaintiffs have the burden of proving that the rates are unreasonable in light of the benefits conferred on them. Evansville Airport v. Delta Airlines, 405 U.S. 707, 92 S.Ct. 1349, 31 L.Ed.2d 620 (1972); American Airlines, Inc. v. Massachusetts Port Auth., 560 F.2d 1036 (1st Cir.1977). Deference is given to the rates established by the state and administrative agencies as long as they act within a broad range of reasonableness. Evansville, 405 U.S. at 712-14, 92 S.Ct. at 1353-54. A. Reasonableness of the Rates Charged to Concessions The Airlines’ argument suggests that overall the rates and fees established under the ordinance are inherently unreasonable because they result in a substantial profit for the Airport. The District Court found that the Airport had over $9 million in reserves at the end of 1989. Concessions are all the non-aeronautical users: parking lot, car rentals, restaurants, motels, gift shops, advertising, and food services. The fees charged by the Airport to these concessions generate a surplus of $2 million per year and result in a large reserve. The Airport views this surplus as a “contingency” fee to be used at a later time. The Airlines assert that this profit is prohibited by the AHTA and should properly be used to reduce the charges to the Airlines. Non-airline concessions are not within the scope of the AHTA. As noted by the District Court, the statute does not mention concessions. Rather, section 1513(b) permits airports to charge reasonable fees and charges from aircraft operators. The Seventh Circuit opinion on which the Airlines rely for their assertions is distinguishable. In Indianapolis Airport, the court held that an ordinance was unreasonable which disregarded airport concession revenues when establishing the airline rates and fees. Such a result, wrote Judge Posner, is “wholly disproportionate to the costs to the airport of serving the airlines and their passengers, and is therefore unreasonable....” 733 F.2d at 1268. Judge Posner relied on two factors in Indianapolis Airport which distinguish that case from the one now before us. First, the Indianapolis airport serves in a monopoly environment. As judicially noticed by the District Court, Kent County Airport is located less than an hour and a half from two airports serviced by major airlines. This means that the passenger has some role in determining from which airport to travel. Second, the Seventh Circuit required the plaintiffs to prove that the rates imposed directly affected the airline or airline passengers and not other parties not parties to the case. As did the District Court, we find the reasoning articulated by the Colorado District Court in City and County of Denver v. Continental Airlines, Inc., 712 F.Supp. 834 (D.Col.1989) persuasive: Persons affected by the rates, rentals and charges for the restaurants, gift shops, parking lots and rental cars, include persons who are not air passengers. These accessory uses of the airport may be considered amenities for air passengers and convenient for them, but no person traveling to, from or through Stapleton on United or Continental flights is required to park in the parking lot, rent a car, eat at a restaurant or buy a magazine. Those are all individual decisions driven by individual perceptions of need and economic values. That is not the case with respect to the use of the airport’s runways, taxiways, and airline portions of the terminal area. There, the air passenger is captive and her purse is necessarily and directly affected by Denver’s charges to the airlines for those uses. Stated differently, Denver’s decision to operate concessions at a profit is not an exploitation of airline passengers who have the freedom of choice to use the amenities Denver has provided. 712 F.Supp. at 838-39. We find that the AHTA does not apply to charges assessed to non-airline concessions and agree with the District Court that the Airlines may not require the cross-credit of concession revenue surplus against their rates and fees. B. Allocation of fair share costs to concessions The Airlines were assessed nearly $2 million in fees for 1988. This figure includes 76% of the costs of the passenger terminal building. The remaining 24% of the costs are allocated to concessions including restaurants, hotel, baggage carts and lockers. The cost allocation is based on floor space occupancy. The Airport asserts that the cost allocation of common space is made in the same proportion as the percentage of terminal space the user occupies exclusively. The Airlines respond that the Airport’s cost allocation is unreasonable in violation of AHTA. The Airlines contend that the 76% allocation results in the Airlines paying for 100% of the public spaces. Appellant’s Brief at 29 n. 46. A fee assessed is reasonable as long as it is based on some fair approximation of the cost of providing the facilities and services, is relevant to the operation of the airport, and is not arbitrary and capricious, but is based on a uniform, fair and practical standard. See Evansville-Vanderburgh Airport Auth. Dist. v. Delta Airlines, 405 U.S. 707, 712-14, 92 S.Ct. 1349, 1353-54, 31 L.Ed.2d 620 (1972), quoting Hendrick v. Maryland, 235 U.S. 610, 624, 35 S.Ct. 140, 143, 59 L.Ed. 385 (1915); Massachusetts Port Auth., 560 F.2d at 1038. An assessment of costs for the common space need not depend on a district court’s estimate of the benefits each renter derives from its customers’ use of the common area. Although such a method would be a possible method for assessing costs, there is nothing in the Act that dictates that such a method must be used. There is no support for the Airlines’ assertion that they pay for 100% of the “public spaces” cost. The Airlines’ expert, Richard Dompke, testified that while 100% of the baggage claim area costs are allocated to the Airlines, the costs of common areas surrounding the restaurant, cocktail lounge, gift shop, and game room, are assigned to all users of the terminal building “on an equitable basis.” Dompke also testified that part of concourse A has been designated as a public area, and that for this area, 76% had been charged to the Airlines. R.E. No. 162, pp. 163, 164. The Airport’s witness, John F. Brown, stated that the Airlines are not charged at all for the space that is roped off where passengers line up to get their ticket and check in their luggage. The lease signed by the parties indicates that an airline must pay a rental rate based on a square footage basis for the ticket wings, concourse level, holding rooms, lounges, and office space which it occupies. Rental of the baggage claim and tag circulation area is apportioned between the users of these areas. Because there is no support in the record that 100% of the costs associated with all common areas of the terminal building are charged to the Airlines, the Airlines have failed to show that the terminal facility fees assessed to them are unreasonable. We therefore affirm the District Court on this issue. C. Allocation of fair share costs to General Aviation The $2 million in fees for which the Airlines are assessed also reflects airside costs for runways, taxiways, and passenger terminal aprons. The Airport allocates these airside costs to general aviation and the Airlines. General aviation, however, is only assessed 20% of its allocated costs. General aviation should be assessed its full allocation of airside costs. The deliberate decision not to assess general aviation its full cost allocation of airside service costs discriminates against the Airlines in favor of locally owned aircraft. The Seventh Circuit, in Indianapolis Airport, held in a similar situation, The difference in the Authority’s treatment of airlines and private planes— making the former pay for the full costs (and more!) that they impose on the airport, but through inaction, allowing the latter to get away with paying little more than half of the costs they impose — has not been justified. And since flights by private planes are more likely to be intrastate than airline flights are, the effect of leaving the flowage fee unchanged has been to shift some of the costs imposed by local users of the airport to its interstate users, who are, along with many of their customers, non-residents of [the state where the airport is located]. This is just the sort of discrimination Congress wanted to prevent in the Anti-Head-Tax Act. 733 F.2d at 1271. The fact that concession revenues compensate for the underassessment does not justify the discrimination. The concession revenues could be used to purchase improvements or additional equipment that would potentially benefit both the concessions and the Airlines. All income from the airport must ultimately be used for airport maintenance or improvement or for a new facility. Thus, failing to assess general aviation for their total costs reduces the benefits which could accrue to the Airlines from the increased revenue. D. Grash/Fire/Rescue Charges to General Aviation. The landing fees charged to the Airlines increased from 50 cents to 70.21 cents per 1,000 lbs. of aircraft weight in 1988. Approximately 50% of this increase was due to an increase in the costs of crash/fire/rescue (“CFR”) services. Provision of these services was extended over the entire 24-hour period as opposed to the 18 hours of service previously provided. The Airlines pay 100% of the CFR costs. General aviation, while receiving these services, is allocated none of the cost. The Airlines contend that these services clearly benefit general aviation, as well as terminal and parking lot tenants, and that the allocation of the CFR costs should reflect this benefit. Any airport, in order to receive certification, must maintain CFR facilities if the airport serves air carrier aircraft with more than 30 passenger seats. 49 U.S.C.A.App. § 1432(a) (West Supp.1991). The defendants assert that since the Airport would not be required to maintain CFR facilities if only general aviation aircraft used the facilities, general aviation should not share the burden of paying for the services. This position fails to account for the fact that CFR facilities are provided and maintained and service general aviation. The CFR facilities answer and service non-airline calls and rescues. These services increase the cost of maintaining and providing CFR services. If the CFR only responded to commercial airline rescue calls, then the 100% allocation would be appropriate. Charging the Airlines for 100% of the cost of CFR services where general aviation and concessionaires, such as car rental companies, receive a substantial benefit is “unreasonable” under the terms of the AHTA. The fact that the CFR services are initially provided because of regulations requiring the services for commercial airlines does not validate allocating the costs of such services only to those airlines when the service provided is adequate to cover all aircraft which use the Airport. E. Amortization of Carrying Charges. The Airport allocated to the Airlines “carrying charges” or amortization fees for assets acquired. The defendants assumed when calculating the carrying charges that the capital assets were acquired with a nonexistent 25 or 30 year mortgage. Such a mortgage results in interest charges in addition to the historical cost. The Airlines argue that such a charge results in the Airport recovering 2V2 times the initial cost. The defendants claim that such a charge provides the Airport a reasonable return on its investment and is similar in scope to the interest charged by a financing institution'. The interest rate adopted for the carrying charge is 8% and it is applied to useful life of the assets. This rate is reasonable and should not result in a net present value which exceeds the initial cost of the project. IV. The Airlines urge that we find any claims which are not unreasonable under the AHTA unreasonable under the laws of the State of Michigan. Since we have found that the defendants failed to allocate the proper costs to general aviation, we address only the issue of surplus revenue from concessions under Michigan law. Michigan law provides, in regard to the fees charged by the operator of a public airport, [The] terms, charges, rentals, and fees shall be equal and uniform for the same type of facilities provided, services rendered, or privileges granted with no discrimination between users of the same class for like facilities provided, services rendered, or privileges granted; however, the public shall not be deprived of its rightful, equal and uniform use thereof. Terms, charges, rentals and fees may vary where necessary to provide security and funds for payment of bonds to be issued as authorized for payment of bonds to be improvements to any airport, or to allow for other differing costs of financing, construction of facilities, or maintenance and operation of the facility. Mich.Stat.Ann. § 10.233(e) [M.C.L.A. § 259.133(e)] (Callaghan 1981). The Airlines argue that because the fees generated by the concessions generate more than is “necessary” to cover airport costs, they are contrary to state law. The Airlines cite no foundation, either in the language of the statute or in case law, which supports their position. Nothing in the statute suggests that generating revenue through charges to concessions is against Michigan law. Rather, the statute addresses nondiscrimination among similar users and considerations which may be made when setting rates. We find that the Airlines’ claims that the Airport’s surplus revenue is generated in violation of Michigan law to be without merit. V. The Airlines also submit that the Airport’s fees violate the Commerce Clause because of the burden they place on interstate travel. The Supreme Court in Evansville established three tests to determine whether the Commerce Clause had been violated: whether fees discriminate between interstate and intrastate users, whether they approximate each user’s receipt of beneficial services, and whether they are excessive in relation to the Airport’s actual costs. 405 U.S. at 707, 92 S.Ct. at 1349. The Airport claims that the status of the factual record does not support this claim and that in any event the Commerce Clause is not legally applicable. We find that the District Court, relying on Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 102 S.Ct. 894, 71 L.Ed.2d 21 (1982), properly dismissed the Commerce Clause contention in its January 19, 1990 decision. The Supreme Court, in Merrion, held that courts should only undertake a Commerce Clause review of a tax or regulation if Congress had taken no other action to regulate the area. Here, Congress has established clear guidelines for the fees and rates that may be charged commercial airlines and other public airport users. As the District Court found, where the issue before the court is the reasonableness of the fees under AHTA, the court should only look at the consistency between the fees and Congressional policy. Thus, the District Court’s dismissal of the Airlines’ Commerce Clause claim was correct. The Airlines contend that the District Court’s decision to dismiss the Commerce Clause claim ignores a recent Eleventh Circuit opinion, Alamo Rent-A-Car, Inc. v. Sarasota-Manatee Airport Auth., 906 F.2d 516 (11th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 1073, 112 L.Ed.2d 1179 (1991). This case however involves a different type of dispute. In Alamo, an off-airport rental car company protested the imposition of a user fee of 10% of all gross receipts from the rental of cars to passengers picked up at the airport. The AHTA clearly does not cover off-airport rental car companies. Thus, Alamo was not disputing a tax or regulation in an area where Congress had acted and was therefore not barred by Merrion from suing under the Commerce Clause. VI. Accordingly, the decision of the District Court is REVERSED and REMANDED in order that the costs associated with CFR services may be properly allocated between the Airlines and general aviation. With regard to the Airlines’ claim that the concessions are under-assessed for their associated costs and that the Airlines are entitled to be cross-credited for surplus revenue generated by concession fees, the decision of the District Court is AFFIRMED. The majority of the court also confirms the decision of the District Court with regard to the method used to assess airside operation fees. . See Report from James C. Buckley, Fees for the Use of Public Aircraft Facilities and Rental for Passenger Terminal Premises, for Freight Terminal Premises, for Rentable Buildings, and for Ground Space: Kent County Airport, (February 1969). . The term "general aviation" encompasses corporate aircraft and privately owned aircraft that are not used for transportation of military, public passengers, or cargo. The District Court found that over 160 general aviation craft are based at the Kent County Airport. Northwest Airlines, Inc. v. County of Kent, Mich., 738 F.Supp. 1112, 1114 (W.D.Mich.1990). . The Airlines amended their complaint on May 9, 1988 and again on November 9, 1988. . The Airlines argue that they are entitled to claim the protection of section 2210 despite the language giving responsibility to the Secretary of Labor. They place reliance on Evansville-Vanderburgh Airport Auth. Dist. v. Delta Airlines, 405 U.S. 707, 721, 92 S.Ct. 1349, 1357, 31 L.Ed.2d 620 (1972), which applies the predecessor to section 2210 in determining Congressional intent regarding airport fees. Evansville involved a suit by the airlines against an airport. The airlines in Evansville, protesting the fees being applied by the airport, filed suit claiming that the fees were an unconstitutional burden on interstate commerce. The predecessor to section 2210, 49 U.S.C.A. § 1718(a)(8), was referred to as evidence that Congress did not intend to deny or preempt state or local power to levy charges to defray the cost of an airport. No reference was made as to whether the airlines would have had a private right of action under section 1718. . The text of section 1513 reads, in pertinent part, (a) No State ... shall levy or collect a tax, fee, head charge, or other charge, directly or indirectly, on persons traveling in air commerce or on the carriage of persons traveling in air commerce or on the sale of air transportation or on the gross receipts derived therefrom; .... (b) ... [NJothing in this section shall prohibit a State ... from the levy or collection of taxes other than those enumerated in subsection (a) of this section, including property taxes, net income taxes, franchise taxes, and sales or use taxes on the sale of goods or services; and nothing in this section shall prohibit a State ... owning or operating an airport from levying or collecting reasonable rental charges, landing fees, and other service charges from aircraft operators for the use of airport facilities. 49 U.S.C.A.App. § 1513 (West Supp.1991). . Some of the concessions, such as telephones and advertising space, are allocated no costs at all. . In fact, one witness testified that most of the CFR runs did not involve air carrier aircraft. Deposition of Robert M. Ross. . Air carriers aircraft includes only those aircraft which are engaged in the carriage by aircraft of persons or property as a common carrier for compensation or hire or the carriage of mail by aircraft, in commerce.... 49 U.S.C.A. App. § 1301(24) (West Supp.1991). See also 14 C.F.R. § 139.3 (defining "air carrier aircraft”); 49 U.S.C.A.App. § 1301(3) (West 1976) (defining "air carrier"); 49 U.S.C.A.App. § 1301(10) (West 1976) (defining “air transportation"). 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_appel1_7_5	A	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed 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). Liane Rowena Estrella REYES, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. No. 81-3157. United States Court of Appeals, Sixth Circuit. Aug. 23, 1984. Rehearing Denied Oct. 29, 1984. Before KEITH and JONES, Circuit Judges, and WEICK, Senior Circuit Judge. ORDER This matter is presently before the Court upon a motion for reconsideration of our earlier opinion in this matter which is reported at 693 F.2d 597, wherein we held, relying on I.N.S. v. Stevic, 678 F.2d 401 (2d Cir.1982), that the respondent erred in requiring the petitioner to demonstrate a clear probability that she would be persecuted if returned to her country in her petition for asylum or the withholding of deportation under § 243(h) of the Immigration and Nationality Act, 8 U.S.C. § 1253(h). The Supreme Court, however, recently reversed Stevie, supra, and held that an alien seeking asylum must demonstrate a clear probability of persecution. I.N.S. v. Stevic, — U.S. -, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984). Upon considering the petition for asylum in light of the standard now mandated we conclude that the petitioner has failed to demonstrate a clear probability that she will be persecuted if returned to her country. Accordingly, the motion for reconsideration is granted, our earlier opinion is vacated and the decision of the Immigration Appeals Board denying the petition for asylum or the withholding of deportation is hereby AFFIRMED. Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Which of these categories best describes the income of the litigant? A. not ascertained B. poor + wards of state C. presumed poor D. presumed wealthy E. clear indication of wealth in opinion F. other - above poverty line but not clearly wealthy Answer:
sc_decisiontype	B	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the type of decision made by the court among the following: Consider "opinion of the court (orally argued)" if the court decided the case by a signed opinion and the case was orally argued. For the 1791-1945 terms, the case need not be orally argued, but a justice must be listed as delivering the opinion of the Court. Consider "per curiam (no oral argument)" if the court decided the case with an opinion but without hearing oral arguments. For the 1791-1945 terms, the Court (or reporter) need not use the term "per curiam" but rather "The Court [said],""By the Court," or "By direction of the Court." Consider "decrees" in the infrequent type of decisions where the justices will typically appoint a special master to take testimony and render a report, the bulk of which generally becomes the Court's decision. This type of decision usually arises under the Court's original jurisdiction and involves state boundary disputes. Consider "equally divided vote" for cases decided by an equally divided vote, for example when a justice fails to participate in a case or when the Court has a vacancy. Consider "per curiam (orally argued)" if no individual justice's name appears as author of the Court's opinion and the case was orally argued. Consider "judgment of the Court (orally argued)" for formally decided cases (decided the case by a signed opinion) where less than a majority of the participating justices agree with the opinion produced by the justice assigned to write the Court's opinion. BLACK v. UNITED STATES. No. 1029, October Term, 1965. Certiorari denied May 2, 1966 Rehearing and certiorari granted and case decided November 7, 1966. Hans A. Nathan, Warren E. Magee and Bert B. Rand for petitioner. Solicitor General Marshall for the United States. Per Curiam. In Davis v. United States, post, p. 927, we today denied the- petition for certiorari. The sole question raised there (but not passed upon by the Court of Appeals because not necessary to its disposition) involved petitioners’ claim that conferences between petitioners and their counsel were surreptitiously overheard and intercepted by law enforcement officials through concealed monitorial devices built into the jail where petitioners were being held for federal authorities. The Solicitor General did not deny the existence of the devices but said that there were no recordings of the conversations in question. He pointed out that since the case has been remanded by the Court of Appeals for a new trial on other grounds, a full exploration of this question could be made on retrial. In the light of these representations we denied the petition for certiorari so that the question might be fully explored at the new trial, as suggested by the Solicitor General. In the instant case, Black v. United States, the petition for rehearing now raises a similar question and while Davis v. United States, supra, is not controlling, its relation is obvious. In Black the Solicitor General advised the Court voluntarily on May 24, 1966, after the petition for certiorari had been denied, 384 U. S. 927, but before an application for rehearing had been filed, that agents of the Federal Bureau of Investigation, in a matter unrelated to this case, on February 7, 1963, installed a listening device in petitioner’s hotel suite in Washington, D. C. The device monitored and taped conversations held in the hotel suite during the period the offense was being investigated and beginning some two months before and continuing until about one month after the evidence in this case was presented to the Grand Jury. During that period, “the monitoring agents,” the Solicitor General advised, “overheard, among other conversations, exchanges between petitioner and the attorney who was then representing him [Black]” in this case. In a supplemental memorandum filed July 13, 1966, the Solicitor General, in response to an inquiry by the Court, stated that the recordings of such interceptions had been erased from the tapes but that notes summarizing and sometimes quoting the conversations intercepted were available, and that reports and memoranda concerning the same had been made. “Neither the reports nor the memoranda,” he reported, “were seen by attorneys of the Tax Division responsible for the prosecution of” this case until January 1964, when in preparing for trial they were included in material transmitted to them; the reports and memo-randa of the intercepted conversations were examined by the Tax Division attorneys and retained by them until April 15, 1964, when petitioner’s trial began; and the attorneys never realized until April 21, 1966, that any conversations between Black and his attorney had been overheard and included in the transcriptions. The Solicitor General advised further that the “Tax Division attorneys found nothing in the F. B. I. reports or memoranda which they considered relevant to the tax evasion case.” He suggests that the judgment be vacated and remanded to the District Court in which the “relevant materials would be produced and the court would determine, upon an adversary hearing, whether petitioner’s conviction should stand.” We have sometimes used this technique in federal criminal cases, United States v. Shotwell Mfg. Co., 355 U. S. 233. However, its use has never been automatic. Indeed, in Remmer v. United States, 347 U. S. 227, we found it necessary, despite the hearing in the District Court, to subsequently order a new trial on the merits, 350 U. S. 377. There are other complicating factors here that were not present in Remmer. There the judge had been informed of the alleged jury tampering, but here neither the judge, the petitioner nor his counsel knew of the action of the federal agents. Moreover, the Solicitor General advises that the Tax Division attorneys did not know at the time of the trial that conversations between Black and his attorney were included in the transcriptions. In view of these facts it appears that justice'requires that a new trial be held so as to afford the petitioner an opportunity to protect himself from the use of evidence that might be otherwise inadmissible. This Court has never been disposed to vacate convictions without adequate justification, but, under the circumstances presented by the Solicitor Ceneral in this case we believe that a new trial must be held. This will give the parties an opportunity to present the relevant evidence and permit the trial judge to decide the questions involved. It will also permit the removal of any doubt as to Black’s receiving a fair trial with full consideration being, given to the new evidence reported to us by the Solicitor General. The petition for rehearing is therefore granted, the order denying certiorari vacated, certiorari granted, the judgment of the Court of Appeals vacated and the cause remanded to the District Court for a new trial. Mr. Justice White and Mr. Justice Fortas took no part in the consideration or decision of this case. Question: What type of decision did the court make? A. opinion of the court (orally argued) B. per curiam (no oral argument) C. decrees D. equally divided vote E. per curiam (orally argued) F. judgment of the Court (orally argued) G. seriatim Answer:
songer_geniss	F	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". NATIONAL LABOR RELATIONS BOARD, Petitioner, and International Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers of America, AFL-CIO, Inter-venor, v. ARKANSAS GRAIN CORPORATION, Respondent. No. 18849. United States Court of Appeals Eighth Circuit. March 12, 1968. Rehearing Denied April 24,1968. Harold B. Shore, Attorney, National Labor Relations Board, Washington, D. C., for petitioner; Arnold Ordman, General Counsel, N.L.R.B., Dominick L. Manoli, Associate General Counsel, N.L. R.B., Marcel Mallet-Prevost, Asst. General Counsel, N.L.R.B., and Glen Bendix-sen, Attorney, N.L.R.B., on the brief. B. S. Clark, of Smith, Williams, Friday & Bowen, Little Rock, Ark., for respondent. James C. Paradise and Herbert M. Berman, Cincinnati, Ohio, for intervenor, International Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers of America, AFL-CIO. Before VAN OOSTERHOUT, Chief Judge, MATTHES, Circuit Judge and HARRIS, Chief District Judge. MATTHES, Circuit Judge. This case is before the Court on the petition of the National Labor Relations Board, pursuant to Section 10(e) of the National Labor Relations Act, as amended, 29 U.S.C. §§ 151-168, for enforce-merit of its order issued March 28, 1967 against Respondent Arkansas Grain Corporation. The Board’s order and decision are reported at 163 N.L.R.B. No. 192 (1967). No jurisdictional issue is presented. Upon motion, the Court permitted the International Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers of America (Union) to intervene. Intervenor has filed a brief in support of the petition for enforcement. The Board, in adopting the findings, conclusions and recommendations of the trial examiner, found that Respondent had violated Sections 8(a) (1) and 8(a) (5) of the National Labor Relations Act. We grant the Board’s petition for enforcement of its order with respect to the Section 8(a) (1) violation and deny the same with respect to the Section 8(a) (5) violation. The asserted unfair labor practices stem from an attempt on the part of the Union to organize the employees of Respondent in its plant at Stuttgart, Arkansas, where it is engaged in the business of producing and selling soybean oil and meal. Respondent, through its plant superintendent and other supervisory personnel, manifested its opposition to the Union in a campaign designed to discourage Union affiliation on the part of individual employees. The campaign was commenced in November, 1965. Pursuant to Section 9(c) of the Act, the Union filed a petition with the Board on January 26, 1966 requesting a representation election and certification. At the representation hearing on February 11, 1966 the parties stipulated for a consent election on February 16th. The Union lost the election by a vote of 42 to 30. Thereafter the Union filed timely objections alleging that the Respondent had coercively interfered with its employees’ freedom of choice in the election by interrogation of employees concerning Union meetings and voting intentions and by threats of reduced earnings, reduced working force and the general futility of selecting the Union. The Regional Director sustained these objections and recommended that the election be set aside. Since no exceptions were taken to the Regional Director’s report, the Board on April 8, 1966 ordered the election set aside and directed a second election. Contemporaneously with the filing of the objections to the election the Union filed the unfair labor practices charge underlying this case. SECTION 8(a) (1) VIOLATION We find no compelling need to recite in detail the evidence upon which the Board predicates its finding of a Section 8(a) (1) violation. The examiner’s report exhaustively reviews the pertinent incidents of Respondent’s coercive activity. Several employees testified in effect that during the organizational campaign the superintendent of Respondent’s plant and other supervisory personnel informed them that the ringleaders of the Union movement would be singled out and fired; that if the Union were designated as the bargaining agent there would be a reduction in the number of employees and working hours; that Respondent would never sign a contract with the Union and thus the employees would have to strike to secure their demands with resultant loss of work for many of them. Although Respondent’s officials in general denied the coercive statements attributed to them, the examiner credited the testimony of the employees. Coercive interrogation, threats of reprisal and other acts of interference, such as occurred here, are sufficient to constitute a violation of Section 8(a) (1). N.L.R.B. v. Ralph Printing & Lithographing Company, 379 F.2d 687 (8th Cir. 1967); N.L.R.B. v. Louisiana Manufacturing Company, 374 F.2d 696 (8th Cir. 1967); N.L.R.B. v. Byrds Manufacturing Corporation, 324 F.2d 329 (8th Cir. 1963); Marshfield Steel Company v. N.L.R.B., 324 F.2d 333 (8th Cir. 1963). We disagree with the Board’s suggestion that this is a case of flagrant unfair labor practices. Out of the thirty employees who testified at the hearing, only four or five related events of sufficient gravity to demonstrate the proscribed conduct. Nevertheless on the whole record we hold that the Board’s finding is supported by substantial evidence. SECTION 8(a) (5) VIOLATION Respondent’s refusal to bargain with the Union is predicated upon a rather unique factual situation concerning which there is no real controversy. On January 26, 1966, after the inception of the Union’s organizational drive, Louis J. Woodall, Special International Representative for the Union, advised Respondent by letter that “a majority of your employees in the production and maintenance department have authorized this organization to represent them for the purpose of collective bargaining in wages, hours and working conditions * * *. ” Woodall suggested a February 1st or 2nd meeting date for the purpose of recognition and bargaining. This letter was received by Respondent on January 27th. On the next day, January 28th, Respondent also received a copy of the Union’s petition for a representation election and certification filed with the Board. On the same date Respondent replied to Union’s letter of January 26th and stated in substance that since the Union had petitioned for an election the Respondent assumed that Union desired to have the question of majority representation resolved through that channel. On January 31st C. H. Lindberg, Region Director of the Union, advised Respondent that a majority of its production and maintenance employees had selected the Union as their bargaining agent, that the Union was prepared to demonstrate its majority representation through a check of authorization cards, and that the request for recognition and bargaining should be treated as a continuing demand. In its reply on February 3rd to the Union’s second demand the Respondent declined the offer to demonstrate the Union’s majority by means of a card check on the basis that such an offer was inconsistent with the pending petition for an election. It stands undisputed that on January 27th and February 1st, the respective dates on which Respondent received the two requests for recognition, the Union had not in fact secured authorization cards from a majority of employees in the appropriate unit. Apart from three laboratory employees and a traffic clerk, whom the trial examiner excluded, there were seventy-three employees in the appropriate bargaining unit. On January 27th and February 1st the Union held thirty-five and thirty-six authorization cards, respectively. Two days thereafter, on February 3rd, the Union received its 37th authorization card, giving it a bare majority of one. By February 7th three more employees had signed authorization cards, bringing the total authorization to forty. Notwithstanding the lack of majority representation on the crucial dates the examiner and the Board concluded that Respondent was obligated, on the theory of a continuing demand for recognition, to bargain with the Union and that its failure to do so justified the finding of a violation of Section 8(a) (5). Preliminarily, we again recognize: (1) although representative status may be determined in a Board conducted election pursuant to Section 9(c) of the Act, such an election is not the only method by which a union may demonstrate that it has been designated by a majority of the employees as their representative in an appropriate bargaining unit. United Mine Workers of America v. Arkansas Oak Flooring Company, 351 U.S. 62, 72 n. 8, 76 S.Ct. 559, 100 L.Ed. 941 (1956); N.L.R.B. v. Ralph Printing & Lithographing Company, supra, 379 F.2d at 692-693; Colson Corporation v. N.L.R.B., 347 F.2d 128, 135 (8th Cir. 1965), cert. denied, 382 U.S. 904, 86 S.Ct. 240, 15 L.Ed.2d 157 (1965); N.L.R.B. v. Philamon Laboratories, Inc., 298 F.2d 176, 179 (2d Cir. 1962), cert. denied, 370 U.S. 919, 82 S.Ct. 1555, 8 L.Ed.2d 498 (1962); (2) where a union has obtained valid authorization cards from a majority of the employees in an appropriate unit, the employer is vulnerable to a Section 8(a) (5) violation if, absent a good faith doubt as to its majority status, he refuses to recognize and bargain with the union. N.L.R.B. v. Ralph Printing & Lithographing Company, supra, 379 F.2d at 693; N.L.R.B. v. Comfort, Inc., 365 F.2d 867, 876 (8th Cir. 1966). This background material brings into focus two basic issues at hand: (1) Does an employer commit an unfair labor practice by refusing to recognize and bargain with a union upon request when the union admittedly did not represent a majority of the employees in the appropriate unit at the time it asserted its majority status and demanded recognition and bargaining? (2) Where the union, although representing only a minority of the employees at the time of the request for recognition and bargaining, nonetheless expresses its request in terms of a continuing demand on the employer, does the latter’s refusal to recognize and bargain with the union without disputing the union’s representative capacity become an unfair labor practice if the union within a reasonable time thereafter obtains valid authorization cards from a majority of the employees? We hold that an employer, irrespective of his motivations, does not violate Section 8(a) (5) by refusing to recognize and bargain with a union, if in fact the union at the time of the demand for recognition does not represent a majority of the employees. The rationale underlying the 8(a) (5) violations in N.L.R.B. v. Ralph Printing & Lithographing Company, supra, and N.L.R.B. v. Comfort, Inc., supra, clearly demonstrates, we believe, that two elements must concur to render a refusal to bargain violative of Section 8(a) (5): (1) a demand for recognition and bargaining by a union validly designated by a majority of the employees as their representative in an appropriate bargaining unit; (2) a refusal to bargain which is not motivated by a good faith doubt of the union’s majority status. Here, the Union concededly did not represent a majority of Respondent’s employees on either January 27th or February 1st, the dates on which Respondent received the respective Union demands for recognition and bargaining. Absent a majority representation, the Union’s demands were meaningless and therefore ineffective to form a basis upon which to predicate an unlawful refusal to bargain. We reach this conclusion irrespective of the fact that the Respondent may not have based its refusal to bargain on a good faith doubt as to the Union’s majority. An employer’s motivations behind his refusal to bargain become relevant only if in fact a majority representation does exist. See, e. g., Crawford Manufacturing Co. v. N.L.R.B., 386 F.2d 367, 372 (4th Cir. 1967); N.L.R.B. v. Heck’s Inc., 386 F.2d 317, 321-322 (4th Cir. 1967); N.L.R.B. v. S. E. Nichols Company, 380 F.2d 438, 441-442 (2d Cir. 1967); N.L.R.B. v. Koehler, 328 F.2d 770, 773 (7th Cir. 1964). Our conclusion, moreover, is reinforced by the fact that if Respondent at the time had acceded to either of the Union’s demands for recognition and bargaining in the mistaken belief that Union did represent a majority of the employees, both might have engaged in an unfair labor practice in violation of Sections 8(a) (1) and 8(b) (1) (A) of the Act. Section 7 of the Act accords employees the right to reject as well as accept the principle of collective bargaining through representatives of their own choice. In such a hypothetical situation Respondent’s grant of exclusive bargaining status to a union selected by a minority of employees would have forced that union upon the nonconsenting majority, thereby interfering with the majority’s right to refrain from self-organization. See International Ladies, Garment Workers’ Union, AFL-CIO v. N.L.R.B., 366 U.S. 731, 81 S.Ct. 1603, 6 L.Ed.2d 762 (1961). The remaining issue for determination is whether the Respondent’s refusal to recognize and bargain with the Union assumes a different posture in view of the fact that the Union requested the Respondent to treat its second demand for recognition as a “continuing demand.” The Board found that in each of its respective demands the Union “honestly but mistakenly” assumed that it represented a majority of Respondent’s employees. The Board adopted the position that Respondent’s “peremptory” refusal to recognize or bargain with the Union obviated the necessity for the Union to tender another formal demand for recognition when it obtained a majority status and permitted the Union to treat its last written demand as continuing for a reasonable time until it had attained a majority of forty authorization cards on February 7th. We reject the theory that the Union’s formal request for recognition, embodied in its letter of January 31st, amounted to a valid continuing demand upon the Respondent to recognize and bargain with the Union up to the point when it achieved its majority status. If, as we have held, the original demand itself is wholly ineffective to create any rights or obligations in the respective parties by reason of a lack of majority representation, a fortiori, it cannot form the basis for the expression of a valid continuing demand on the Respondent, the'rejection of which would amount to a refusal to bargain. In support of its continuing demand theory the Board places great emphasis upon the decision of the District of Columbia Circuit in Local No. 152 v. N.L.R.B., 120 U.S.App.D.C. 25, 343 F.2d 307 (1965). In that case the employer on two occasions outrightly rejected a union demand for recognition at a time when the union purported to represent, but did not in fact represent, a majority of the employees. The Board construed the union’s conduct as a continuing demand for recognition under circumstances where a formal demand would have proved futile. The Court of Appeals adopted this approach and held: “An employer violates Section 8(a) (5) when, as here, it rejects a Union’s bargaining request, made in the honest but mistaken belief that a majority has been obtained, without questioning the Union’s representative status, and the Union does obtain a majority shortly after such request.” 343 F.2d at 310. We are not persuaded by the reasoning of the District of Columbia Circuit to modify our holding in this case. The conduct of the Union in the case at bar belies its assertion of an “honest but mistaken” claim of majority representation at the time of its demands for recognition. The record refutes the good faith of the Union in submitting its demands for recognition on the basis of its representation at that time. Neither Louis J. Woodall nor C. H. Lind-berg, the Union representatives who authored the written demands for recognition, testified at the hearing as to the basis for the Union’s belief that it had a majority. Apart from the disputed status of the four employees, whom Respondent contends should have been included in the unit, the composition and size of the appropriate bargaining unit were readily ascertainable at the time the Union presented its demands. Indeed, the very inclusion of the provision for a continuing demand in the second request for recognition on January 31st carries with it a tacit acknowledgment that the Union either knew it had no majority or had serious doubts as to the existence of its majority status. If the Union had the majority backing and a means of demonstrating that status a demand for recognition accompanied with the requisite offer of proof was sufficient to establish Respondent’s obligation to bargain and consequential liability for a refusal to bargain, absent a good faith doubt. Since the rights and liabilities of the respective parties were fixed as of that date, a “continuing demand” had no operative effect to change the status of the parties, and therefore no independent significance, except perhaps from a desire on the part of the Union to have a demand for recognition on record when and if it ultimately achieved its majority status. The unfair advantage which may accrue to a union which predicates its right of representation upon a continuing demand when it knowingly has not secured valid authorization cards from a majority of the employees in the appropriate unit is readily evident. If such a procedure is sanctioned, a union may assert a continuing demand even though it has secured authorization cards from only a substantial minority of the employees. If the employer fails to accede to the demand without disputing in any manner the union’s representative capacity, the foundation has been laid for a Section 8(a) (5) violation in the event the union in its campaign among the employees ultimately succeeds in obtaining valid cards from a majority. Such a practice is fraught with perils not only for the employer, but for the employees. We believe that the standard of good faith imposed upon the employer applies with equal force to a union, and that it should not be placed in a position where it may secure an unfair advantage to the possible detriment of all other interested parties. The Board argues, however, that even if the facts here did not establish a technical violation of Section 8(a) (5) since the Union did not represent a majority at the time of the formal demand for recognition, the Respondent’s violation of Section 8(a) (1) and its rejection of the collective bargaining principle nonetheless clearly warrant a bargaining order. We disagree. This contention proceeds on the theory that the conduct of Respondent giving rise to the 8(a) (1) violation was so coercive and aggravated as to effectively dissipate the employees’ support for the Union and impair the Union’s chances of prevailing in a second election. We do not doubt that a bargaining order rather than a cease and desist order may at times be an appropriate remedy to restore the status quo, particularly where the union’s support among the employees has been chilled as the result of the employer’s unfair labor practices, the effects of which might vitiate any strong union support in a subsequent election. See, e. g., Wausau Steel Corporation v. N.L.R.B., 377 F.2d 369, 373-374 (7th Cir. 1967); United Steel Workers of America v. N.L.R.B., 126 U.S.App.D.C. 215, 376 F.2d 770, 772-773 (1967), cert. denied, Northwest Engineering Co. v. N.L.R.B., 389 U.S. 932, 88 S.Ct. 297, 19 L.Ed.2d 285 (1967). As stated above, Respondent did not engage in any outrageous or aggravated conduct. We do not believe therefore that its conduct, though in violation of Section 8(a) (1), would have such a substantial impact on the employees’ freedom of choice in a second election as to render nugatory the effect of a cease and desist order. We agree with the principles enunciated in N.L.R.B. v. S. S. Logan Packing Company, supra, where the Court aptly stated the circumstances under which a bargaining order may be the appropriate remedy for violations of Section 8(a) (1): “In those exceptional cases where the employer’s unfair labor practices are so outrageous and pervasive and of such a nature that their coercive effects cannot be eliminated by the application of traditional remedies, with the result that a fair and reliable election cannot be had, the Board may have the power to impose a bargaining order as an appropriate remedy for those unfair practices. Then it is imposed without need of answering the question whether the union ever obtained majority status. The remedy is an extraordinary one, however, and, in light of the guaranty of § 7 of employees’ rights not to be represented, its use, if ever appropriate, must be reserved for extraordinary cases.” 386 F.2d at.570-571. Cf. N.L.R.B. v. Flomatic Corporation, 347 F.2d 74 (2d Cir. 1965). In summary, viewing the record as a whole, we are satisfied that the matter of choosing a bargaining representative for Respondent’s employees should be determined through the process of another Board election. In accordance with the views herein expressed, enforcement is granted in part and denied in part. . The other employees who testified merely identified the authorization cards which they had signed. . Respondent urged before the Board and contends here that the three laboratory employees and the traffic clerk should not have been excluded from the bargaining unit. Although there is substance to Respondent’s contention in this regard, we do not decide that question in view of our disposition of the Section 8(a) (5) issue. . On two occasions, February 12th and February 14th respectively, a total of seven of Respondent’s employees, at the direction of a Board representative, wrote to the Board’s regional office in Memphis, Tennessee stating (1) that they no longer wished to be represented by the Union and (2) that their authorization cards be can-celled and returned to them. Both letters indicated that a copy had been sent to Mr. Woodall, the Union’s representative. The Board contends that inasmuch as the evidence failed to show that the Union had actually received notice of the withdrawal of authorization, the letters were ineffective to that end. In view of our disposition of the case we do not reach the question of the validity and effect of the withdrawal letters. If they were effective, the Union did not represent a majority of the employees at any time prior to the election. . While we need not reach the issue whether Respondent’s refusal to bargain was prompted by a good faith doubt as to the Union’s majority status, we do not share the Board’s characterization of Respondent’s conduct as an outright and adamant refusal to bargain without a good faith doubt of majority status. The Board construed the Union’s second letter as a continuing demand for recognition on the basis of Respondent’s “peremptory” refusal to bargain. Respondent’s reply on February 3rd to the Union’s second demand for recognition, while purporting to reject a demonstration of majority status by means of union authorization cards, is not tantamount to an admission of majority status or an acknowledgment that the Respondent did not in good faith doubt that status. In short, Respondent’s letter does not negative the existence of a good faith doubt but only questions the method by which the Union seeks to prove its majority status. While this Circuit has accepted a demonstration of majority status on the basis of valid authorization cards, we are nonetheless mindful of the vices and pressures inherent in their unsupervised solicitation. In a proper case therefore authorization cards may be a totally unreliable indication of majority status and constitute a sufficient basis for the employer to entertain a good faith doubt as to that status. See, e. g., N.L.R.B. v. S. S. Logan Packing Co., 386 F.2d 562 (4th Cir. 1967). Question: What is the general issue in the case? A. criminal B. civil rights C. First Amendment D. due process E. privacy F. labor relations G. economic activity and regulation H. miscellaneous Answer:
sc_certreason	L	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the reason, if any, given by the court for granting the petition for certiorari. UNITED STATES v. GONZALEZ-LOPEZ CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT No. 05-352. Argued April 18, 2006 Decided June 26, 2006 Deputy Solicitor General Dreeben argued the cause for the United States. With him on the brief were Solicitor General Clement, Assistant Attorney General Fisher, Lisa S. Blatt, and Daniel S. Goodman. Jeffrey L. Fisher argued the cause for respondent. With him on the brief were J. Richard McEachern, Pamela S. Karlan, Joseph H. Low IV, Thomas C. Goldstein, Amy Howe, and Kevin K. Russell Quin Denvir, Joshua L. Dratel, and David M. Porter filed a brief for the National Association of Criminal Defense Lawyers as amicus curiae urging affirmance. Justice Scalia delivered the opinion of the Court. We must decide whether a trial court’s erroneous deprivation of a criminal defendant’s choice of counsel entitles him to a reversal of his conviction. I Respondent Cuauhtemoc Gonzalez-Lopez was charged in the Eastern District of Missouri with conspiracy to distribute more than 100 kilograms of marijuana. His family hired attorney John Fahle to represent him. After the arraignment, respondent called a California attorney, Joseph Low, to discuss whether Low would represent him, either in addition to or instead of Fahle. Low flew from California to meet with respondent, who hired him. Some time later, Low and Fahle represented respondent at an evidentiary hearing before a Magistrate Judge. The Magistrate Judge accepted Low’s provisional entry of appearance and permitted Low to participate in the hearing on the condition that he immediately file a motion for admission pro hac vice. During the hearing, however, the Magistrate Judge revoked the provisional acceptance on the ground that, by passing notes to Fahle, Low had violated a court rule restricting the cross-examination of a witness to one counsel. The following week, respondent informed Fahle that he wanted Low to be his only attorney. Low then filed an application for admission pro hac vice. The District Court denied his application without comment. A month later, Low filed a second application, which the District Court again denied without explanation. Low’s appeal, in the form of an application for a writ of mandamus, was dismissed by the United States Court of Appeals for the Eighth Circuit. Fahle filed a motion to withdraw as counsel and for a show-cause hearing to consider sanctions against Low. Fahle asserted that, by contacting respondent while respondent was represented by Fahle, Low violated Mo. Rule of Professional Conduct 4-4.2 (2003), which prohibits a lawyer “[i]n representing a client” from “communicat[ing] about the subject of the representation with a party... represented by another lawyer” without that lawyer’s consent. Low filed a motion to strike Fahle’s motion. The District Court granted Fahle’s motion to withdraw and granted a continuance so that respondent could find new representation. Respondent retained a local attorney, Karl Dickhaus, for the trial. The District Court then denied Low’s motion to strike and, for the first time, explained that it had denied Low’s motions for admission pro hoc vice primarily because, in a separate case before it, Low had violated Rule 4-4.2 by communicating with a represented party. The case proceeded to trial, and Dickhaus represented respondent. Low again moved for admission and was again denied. The court also denied Dickhaus’s request to have Low at counsel table with him and ordered Low to sit in the audience and to have no contact with Dickhaus during the proceedings. To enforce the court’s order, a United States Marshal sat between Low and Dickhaus at trial. Respondent was unable to meet with Low throughout the trial, except for once on the last night. The jury found respondent guilty. After trial, the District Court granted Fahle’s motion for sanctions against Low. It read Rule 4-4.2 to forbid Low’s contact with respondent without Fahle’s permission. It also reiterated that it had denied Low’s motions for admission on the ground that Low had violated the same Rule in a separate matter. Respondent appealed, and the Eighth Circuit vacated the conviction. 399 F. 3d 924 (2005). The court first held that the District Court erred in interpreting Rule 4-4.2 to prohibit Low’s conduct both in this case and in the separate matter on which the District Court based its denials of his admission motions. The District Court’s denials of these motions were therefore erroneous and violated respondent’s Sixth Amendment right to paid counsel of his choosing. See id., at 928-932. The court then concluded that this Sixth Amendment violation was not subject to harmless-error review. See id., at 932-935. We granted certiorari. 546 U. S. 1085 (2006). II The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right... to have the Assistance of Counsel for his defence.” We have previously held that an element of this right is the right of a defendant who does not require appointed counsel to choose who will represent him. See Wheat v. United States, 486 U. S. 153, 159 (1988). Cf. Powell v. Alabama, 287 U. S. 45, 53 (1932) (“It is hardly necessary to say that, the right to counsel being conceded, a defendant should be afforded a fair opportunity to secure counsel of his own choice”). The Government here agrees, as it has previously, that “the Sixth Amendment guarantees a defendant the right to be represented by an otherwise qualified attorney whom that defendant can afford to hire, or who is willing to represent the defendant even though he is without funds.” Caplin & Drysdale, Chartered v. United States, 491 U. S. 617, 624-625 (1989). To be sure, the right to counsel of choice “is circumscribed in several important respects.” Wheat, supra, at 159. But the Government does not dispute the Eighth Circuit’s conclusion in this case that the District Court erroneously deprived respondent of his counsel of choice. The Government contends, however, that the Sixth Amendment violation is not “complete” unless the defendant can show that substitute counsel was ineffective within the meaning of Strickland v. Washington, 466 U. S. 668, 691-696 (1984)—i. e., that substitute counsel’s performance was deficient and the defendant was prejudiced by it. In the alternative, the Government contends that the defendant must at least demonstrate that his counsel of choice would have pursued a different strategy that would have created a “reasonable probability that... the result of the proceedings would have been different,” id., at 694—in other words, that he was prejudiced within the meaning of Strickland by the denial of his counsel of choice even if substitute counsel’s performance was not constitutionally deficient. To support these propositions, the Government points to our prior cases, which note that the right to counsel “has been accorded... not for its own sake, but because of the effect it has on the ability of the accused to receive a fair trial.” Mickens v. Taylor, 535 U. S. 162, 166 (2002) (internal quotation marks omitted). A trial is not unfair and thus the Sixth Amendment is not violated, the Government reasons, unless a defendant has been prejudiced. Stated as broadly as this, the Government’s argument in effect reads the Sixth Amendment as a more detailed version of the Due Process Clause—and then proceeds to give no effect to the details. It is true enough that the purpose of the rights set forth in that Amendment is to ensure a fair trial; but it does not follow that the rights can be disregarded so long as the trial is, on the whole, fair. What the Government urges upon us here is what was urged upon us (successfully, at one time, see Ohio v. Roberts, 448 U. S. 56 (1980)) with regard to the Sixth Amendment’s right of confrontation—a line of reasoning that “abstracts from the right to its purposes, and then eliminates the right.” Maryland v. Craig, 497 U. S. 836, 862 (1990) (Scalia, J., dissenting). Since, it was argued, the purpose of the Confrontation Clause was to ensure the reliability of evidence, so long as the testimonial hearsay bore “indicia of reliability,” the Confrontation Clause was not violated. See Roberts, supra, at 65-66. We rejected that argument (and our prior cases that had accepted it) in Crawford v. Washington, 541 U. S. 36 (2004), saying that the Confrontation Clause “commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.” Id., at 61. So also with the Sixth Amendment right to counsel of choice. It commands, not that a trial be fair, but that a particular guarantee of fairness be provided—to wit, that the accused be defended by the counsel he believes to be best. “The Constitution guarantees a fair trial through the Due Process Clauses, but it defines the basic elements of a fair trial largely through the several provisions of the Sixth Amendment, including the Counsel Clause.” Strickland, supra, at 684-685. In sum, the right at stake here is the right to counsel of choice, not the right to a fair trial; and that right was violated because the deprivation of counsel was erroneous. No additional showing of prejudice is required to make the violation “complete.” The cases the Government relies on involve the right to the effective assistance of counsel, the violation of which generally requires a defendant to establish prejudice. See, e. g., Strickland, 466 U. S., at 694; Mickens, supra, at 166; United States v. Cronic, 466 U. S. 648 (1984). The earliest case generally cited for the proposition that “the right to counsel is the right to the effective assistance of counsel,” McMann v. Richardson, 397 U. S. 759, 771, n. 14 (1970), was based on the Due Process Clause rather than on the Sixth Amendment, see Powell, 287 U. S., at 57 (cited in, e. g., McMann, supra, at 771, n. 14). And even our recognition of the right to effective counsel within the Sixth Amendment was a consequence of our perception that representation by counsel “is critical to the ability of the adversarial system to produce just results.” Strickland, supra, at 685. Having derived the right to effective representation from the purpose of ensuring a fair trial, we have, logically enough, also derived the limits of that right from that same purpose. See Mickens, supra, at 166. The requirement that a defendant show prejudice in effective representation cases arises from the very nature of the specific element of the right to counsel at issue there—effective (not mistake-free) representation. Counsel cannot be “ineffective” unless his mistakes have harmed the defense (or, at least, unless it is reasonably likely that they have). Thus, a violation of the Sixth Amendment right to effective representation is not “complete” until the defendant is prejudiced. See Strickland, supra, at 685. The right to select counsel of one’s choice, by contrast, has never been derived from the Sixth Amendment’s purpose of ensuring a fair trial. It has been regarded as the root meaning of the constitutional guarantee. See Wheat, 486 U. S., at 159; Andersen v. Treat, 172 U. S. 24 (1898). See generally W. Beaney, The Right to Counsel in American Courts 18-24, 27-33 (1955). Cf. Powell, supra, at 53. Where the right to be assisted by counsel of one’s choice is wrongly denied, therefore, it is unnecessary to conduct an ineffectiveness or prejudice inquiry to establish a Sixth Amendment violation. Deprivation of the right is “complete” when the defendant is erroneously prevented from being represented by the lawyer he wants, regardless of the quality of the representation he received. To argue otherwise is to confuse the right to counsel of choice—which is the right to a particular lawyer regardless of comparative effectiveness—with the right to effective counsel—which imposes a baseline requirement of competence on whatever lawyer is chosen or appointed. Ill Having concluded, in light of the Government’s concession of erroneous deprivation, that the trial court violated respondent’s Sixth Amendment right to counsel of choice, we must consider whether this error is subject to review for harmlessness. In Arizona v. Fulminante, 499 U. S. 279 (1991), we divided constitutional errors into two classes. The first we called “trial error,” because the errors “occurred during presentation of the case to the jury” and their effect may “be quantitatively assessed in the context of other evidence presented in order to determine whether [they were] harmless beyond a reasonable doubt.” Id., at 307-308 (internal quotation marks omitted). These include “most constitutional errors.” Id., at 306. The second class of constitutional error we called “structural defects.” These “defy analysis by ‘harmless-error’ standards” because they “affee[t] the framework within which the trial proceeds,” and are not “simply an error in the trial process itself.” Id., at 309-310. See also Neder v. United States, 527 U. S. 1, 7-9 (1999). Such errors include the denial of counsel, see Gideon v. Wainwright, 372 U. S. 335 (1963), the denial of the right of self-representation, see McKaskle v. Wiggins, 465 U. S. 168, 177-178, n. 8 (1984), the denial of the right to public trial, see Waller v. Georgia, 467 U. S. 39, 49, n. 9 (1984), and the denial of the right to trial by jury by the giving of a defective reasonable-doubt instruction, see Sullivan v. Louisiana, 508 U. S. 275 (1993). We have little trouble concluding that erroneous deprivation of the right to counsel of choice, “with consequences that are necessarily unquantifiable and indeterminate, unquestionably qualifies as ‘structural error.’ ” Id., at 282. Different attorneys will pursue different strategies with regard to investigation and discovery, development of the theory of defense, selection of the jury, presentation of the witnesses, and style of witness examination and jury argument. And the choice of attorney will affect whether and on what terms the defendant cooperates with the prosecution, plea bargains, or decides instead to go to trial. In light of these myriad aspects of representation, the erroneous denial of counsel bears directly on the “framework within which the trial proceeds,” Fulminante, supra, at 310—or indeed on whether it proceeds at all. It is impossible to know what different choices the rejected counsel would have made, and then to quantify the impact of those different choices on the outcome of the proceedings. Many counseled decisions, including those involving plea bargains and cooperation with the government, do not even concern the conduct of the trial at all. Harmless-error analysis in such a context would be a speculative inquiry into what might have occurred in an alternate universe. The Government acknowledges that the deprivation of choice of counsel pervades the entire trial, but points out that counsel’s ineffectiveness may also do so and yet we do not allow reversal of a conviction for that reason without a showing of prejudice. But the requirement of showing prejudice in ineffectiveness "claims stems from the very definition of the right at issue; it is not a matter of showing that the violation was harmless, but of showing that a violation of the right to effective representation occurred. A choice-of-counsel violation occurs whenever the defendant’s choice is wrongfully denied. Moreover, if and when counsel’s ineffectiveness “pervades” a trial, it does so (to the extent we can detect it) through identifiable mistakes. We can assess how those mistakes affected the outcome. To determine the effect of wrongful denial of choice of counsel, however, we would not be looking for mistakes committed by the actual counsel, but for differences in the defense that would have been made by the rejected counsel—in matters ranging from questions asked on voir dire and cross-examination to such intangibles as argument style and relationship with the prosecutors. We would have to speculate upon what matters the rejected counsel would have handled differently— or indeed, would have handled the same but with the benefit of a more jury-pleasing courtroom style or a longstanding relationship of trust with the prosecutors. And then we would have to speculate upon what effect those different choices or different intangibles might have had. The difficulties of conducting the two assessments of prejudice are not remotely comparable. IV Nothing we have said today casts any doubt or places any qualification upon our previous holdings that limit the right to counsel of choice and recognize the authority of trial courts to establish criteria for admitting lawyers to argue before them. As the dissent too discusses, post, at 154, the right to counsel of choice does not extend to defendants who require counsel to be appointed for them. See Wheat, 486 U. S., at 159; Caplin & Drysdale, 491 U. S., at 624, 626. Nor may a defendant insist on representation by a person who is not a member of the bar, or demand that a court honor his waiver of conflict-free representation. See Wheat, 486 U. S., at 159-160. We have recognized a trial court’s wide latitude in balancing the right to counsel of choice against the needs of fairness, id., at 163-164, and against the demands of its calendar, Morris v. Slappy, 461 U. S. 1, 11-12 (1983). The court has, moreover, an “independent interest in ensuring that criminal trials are conducted within the ethical standards of the profession and that legal proceedings appear fair to all who observe them.” Wheat, supra, at 160. None of these limitations on the right to choose one’s counsel is relevant here. This is not a case about a court’s power to enforce rules or adhere to practices that determine which attorneys may appear before it, or to make scheduling and other decisions that effectively exclude a defendant’s first choice of counsel. However broad a court’s discretion may be, the Government has conceded that the District Court here erred when it denied respondent his choice of counsel. Accepting that premise, we hold that the error violated respondent’s Sixth Amendment right to counsel of choice and that this violation is not subject to harmless-error analysis. * * * The judgment of the Court of Appeals is affirmed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Justice Alito, with whom The Chief Justice, Justice Kennedy, and Justice Thomas join, dissenting. I disagree with the Court’s conclusion that a criminal conviction must.automatically be reversed whenever a trial court errs in applying its rules regarding pro hac vice admissions and as a result prevents a defendant from being represented at trial by the defendant’s first-choice attorney. Instead, a defendant should be required to make at least some showing that the trial court’s erroneous ruling adversely affected the quality of assistance that the defendant received. In my view, the majority’s contrary holding is based on an incorrect interpretation of the Sixth Amendment and a misapplication of harmless-error principles. I respectfully dissent. I The majority makes a subtle but important mistake at the outset in its characterization of what the Sixth Amendment guarantees. The majority states that the Sixth Amendment protects “the right of a defendant who does not require appointed counsel to choose who will represent him.” Ante, at 144. What the Sixth Amendment actually protects, however, is the right to have the assistance that the defendant’s counsel of choice is able to provide. It follows that if the erroneous disqualification of a defendant’s counsel of choice does not impair the assistance that a defendant receives at trial, there is no violation of the Sixth Amendment. The language of the Sixth Amendment supports this interpretation. The Assistance of Counsel Clause focuses on what a defendant is entitled to receive (“Assistance”), rather than on the identity of the provider. The background of the adoption of the Sixth Amendment points in the same direction. The specific evil against which the Assistance of Counsel Clause was aimed was the English common-law rule severely limiting a felony defendant’s ability to be assisted by counsel. United States v. Ash, 413 U. S. 300, 306 (1973). “[T]he core purpose of the counsel guarantee was to assure Assistance’ at trial,” id., at 309, and thereby “to assure fairness in the adversary criminal process,” United States v. Morrison, 449 U. S. 361, 364 (1981). It was not “the essential aim of the Amendment... to ensure that a defendant will inexorably be represented by the lawyer whom he prefers.” Wheat v. United States, 486 U. S. 153, 159 (1988); cf. Morris v. Slappy, 461 U. S. 1, 14 (1983) (“[W]e reject the claim that the Sixth Amendment guarantees a ‘meaningful relationship’ between an accused and his counsel”). There is no doubt, of course, that the right “to have the Assistance of Counsel” carries with it a limited right to be represented by counsel of choice. At the time of the adoption of the Bill of Rights, when the availability of appointed counsel was generally limited, that is how the right inevitably played out: A defendant’s right to have the assistance of counsel necessarily meant the right to have the assistance of whatever counsel the defendant was able to secure. But from the beginning, the right to counsel of choice has been circumscribed. For one thing, a defendant’s choice of counsel has always been restricted by the rules governing admission to practice before the court in question. The Judiciary Act of 1789 made this clear, providing that parties “in all the courts of the United States” had the right to “the assistance of such counsel or attorneys at law as by the rules of the said courts respectively shall be permitted to manage and conduct causes therein.” Ch. 20, §35, 1 Stat. 92. Therefore, if a defendant’s first-choice attorney was not eligible to appear under the rules of a particular court, the defendant had no right to be represented by that attorney. Indeed, if a defendant’s top 10 or top 25 choices were all attorneys who were not eligible to appear in the court in question, the defendant had no right to be represented by any of them. Today, rules governing admission to practice before particular courts continue to limit the ability of a criminal defendant to be represented by counsel of choice. See Wheat, supra, at 159. The right to counsel of choice is also limited by conflict-of-interest rules. Even if a defendant is aware that his or her attorney of choice has a conflict, and even if the defendant is eager to waive any objection, the defendant has no constitutional right to be represented by that attorney. See 486 U. S., at 159-160. Similarly, the right to be represented by counsel of choice can be limited by mundane case-management considerations. If a trial judge schedules a trial to begin on a particular date and defendant’s counsel of choice is already committed for other trials until some time thereafter, the trial judge has discretion under appropriate circumstances to refuse to postpone the trial date and thereby, in effect, to force the defendant to forgo counsel of choice. See, e. g., Slappy, supra; United States v. Hughey, 147 F. 3d 423, 428-431 (CA5 1998). These limitations on the right to counsel of choice are tolerable because the focus of the right is the quality of the representation that the defendant receives, not the identity of the attorney who provides the representation. Limiting a defendant to those attorneys who are willing, available, and eligible to represent the defendant still leaves a defendant with a pool of attorneys to choose from—and, in most jurisdictions today, a large and diverse pool. Thus, these restrictions generally have no adverse effect on a defendant’s ability to secure the best assistance that the defendant’s circumstances permit. Because the Sixth Amendment focuses on the quality of the assistance that counsel of choice would have provided, I would hold that the erroneous disqualification of counsel does not violate the Sixth Amendment unless the ruling diminishes the quality of assistance that the defendant would have otherwise received. This would not require a defendant to show that the second-choice attorney was constitutionally ineffective within the meaning of Strickland v. Washing ton, 466 U. S. 668 (1984). Rather, the defendant would be entitled to a new trial if the defendant could show “an identifiable difference in the quality of representation between the disqualified counsel and the attorney who represents the defendant at trial.” Rodriguez v. Chandler, 382 F. 3d 670, 675 (CA7 2004), cert. denied, 543 U. S. 1156 (2005). This approach is fully consistent with our prior decisions. We have never held that the erroneous disqualification of counsel violates the Sixth Amendment when there is no prejudice, and while we have stated in several cases that the Sixth Amendment protects a defendant’s right to counsel of choice, see Caplin & Drysdale, Chartered v. United States, 491 U. S. 617, 624-625 (1989); Wheat, supra, at 159; Powell v. Alabama, 287 U. S. 45, 53 (1932), we had no occasion in those cases to consider whether a violation of this right can be shown where there is no prejudice. Nor do our opinions in those cases refer to that question. It is therefore unreasonable to read our general statements regarding counsel of choice as addressing the issue of prejudice. II But even accepting, as the majority holds, that the erroneous disqualification of counsel of choice always violates the Sixth Amendment, it still would not follow that reversal is required in all cases. The Constitution, by its terms, does not mandate any particular remedy for violations of its own provisions. Instead, we are bound in this case by Federal Rule of Criminal Procedure 52(a), which instructs federal courts to “disregar[d]” “[a]ny error... which does not affect substantial rights.” See also 28 U. S. C. §2111; Chapman v. California, 386 U. S. 18, 22 (1967). The only exceptions we have recognized to this rule have been for “a limited class of fundamental constitutional errors that ‘defy analysis by “harmless error” standards.’ ” Neder v. United States, 527 U. S. 1, 7 (1999) (quoting Arizona v. Fulminante, 499 U. S. 279, 309 (1991)); see also Chapman, supra, at 23. “Such errors... ‘necessarily render a trial fundamentally unfair’ [and] deprive defendants of ‘basic protections’ without which ‘a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence... and no criminal punishment may be regarded as fundamentally fair.’” Neder, supra, at 8-9 (quoting Rose v. Clark, 478 U. S. 570, 577-578 (1986); second omission in original); see also ante, at 149 (listing such errors). Thus, in Neder, we rejected the argument that the omission of an element of a crime in a jury instruction “necessarily render[s] a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence.” 527 U. S., at 9. In fact, in that case, “quite the opposite [was] true: Neder was tried before an impartial judge, under the correct standard of proof and with the assistance of counsel; a fairly selected, impartial jury was instructed to consider all of the evidence and argument in respect to Neder’s defense....” Ibid. Neder’s situation—with an impartial judge, the correct standard of proof, assistance of counsel, and a fair jury—is much like respondent’s. Fundamental unfairness does not inexorably follow from the denial of first-choice counsel. The “decision to retain a particular lawyer” is “often uninformed,” Cuyler v. Sullivan, 446 U. S. 335, 344 (1980); a defendant’s second-choice lawyer may thus turn out to be better than the defendant’s first-choice lawyer. More often, a defendant’s first- and second-choice lawyers may be simply indistinguishable. These possibilities would not justify violating the right to choice of counsel, but they do make me hard put to characterize the violation as “always rendering] a trial unfair,” Neder, supra, at 9. Fairness may not limit the right, see ante, at 145, but it does inform the remedy. Nor is it always or nearly always impossible to determine whether the first choice would have provided better representation than the second choice. There are undoubtedly cases in which the prosecution would have little difficulty showing that the second-choice attorney was better qualified than or at least as qualified as the defendant’s initial choice, and there are other cases in which it will be evident to the trial judge that any difference in ability or strategy could not have possibly affected the outcome of the trial. Requiring a defendant to fall back on a second-choice attorney is not comparable to denying a defendant the right to be represented by counsel at all. Refusing to permit a defendant to receive the assistance of any counsel is the epitome of fundamental unfairness, and as far as the effect on the outcome is concerned, it is much more difficult to assess the effect of a complete denial of counsel than it is to assess the effect of merely preventing representation by the defendant’s first-choice attorney. To be sure, when the effect of an erroneous disqualification is hard to gauge, the prosecution will be unable to meet its burden of showing that the error was harmless beyond a reasonable doubt. But that does not justify eliminating the possibility of showing harmless error in all cases. The majority’s focus on the “trial error’’/“structural defect” dichotomy is misleading. In Fulminante, we used these terms to denote two poles of constitutional error that had appeared in prior cases; trial errors always lead to harmless-error review, while structural defects always lead to automatic reversal. See 499 U. S., at 306-310. We did not suggest that trial errors are the only sorts of errors amenable to harmless-error review, or that all errors “affecting the framework within which the trial proceeds,” id., at 310, are structural. The touchstone of structural error is fundamental unfairness and unreliability. Automatic reversal is strong medicine that should be reserved for constitutional errors that “always” or “necessarily,” Neder, supra, at 9 (emphasis in original), produce such unfairness. Ill Either of the two courses outlined above—requiring at least some showing of prejudice, or engaging in harmless-error review—would avoid the anomalous and unjustifiable consequences that follow from the majority’s two-part rule of error without prejudice followed by automatic reversal. Under the majority’s holding, a defendant who is erroneously required to go to trial with a second-choice attorney is automatically entitled to a new trial even if this attorney performed brilliantly. By contrast, a defendant whose attorney was ineffective in the constitutional sense (i. e., “made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed... by the Sixth Amendment,” Strickland, 466 U. S., at 687) cannot obtain relief without showing prejudice. Under the majority’s holding, a trial court may adopt rules severely restricting pro hoc vice admissions, cf. Leis v. Flynt, 439 U. S. 438, 443 (1979) (per curiam), but if it adopts a generous rule and then errs in interpreting or applying it, the error automatically requires reversal of any conviction, regardless of whether the erroneous ruling had any effect on the defendant. Under the majority’s holding, some defendants will be awarded new trials even though it is clear that the erroneous disqualification of their first-choice counsel did not prejudice them in the least. Suppose, for example, that a defendant is initially represented by an attorney who previously represented the defendant in civil matters and who has little criminal experience. Suppose that this attorney is erroneously disqualified and that the defendant is then able to secure the services of a nationally acclaimed and highly experienced criminal defense attorney who secures a surprisingly favorable result at trial—for instance, acquittal on most but not all counts. Under the majority’s holding, the trial court’s erroneous ruling automatically means that the Sixth Amendment was violated—even if the defendant makes no attempt to argue that the disqualified attorney would have done a better job. In fact, the defendant would still be entitled to a new trial on the counts of conviction even if the defendant publicly proclaimed after the verdict that the second attorney had provided better representation than any other attorney in the country could have possibly done. Cases as stark as the above hypothetical are unlikely, but there are certainly cases in which the erroneous disqualification of a defendant’s first-choice counsel neither seriously upsets the defendant’s preferences nor impairs the defendant’s representation at trial. As noted above, a defendant’s second-choice lawyer may sometimes be better than the defendant’s first-choice lawyer. Defendants who retain counsel are frequently forced to choose among attorneys whom they do not know and about whom they have limited information, and thus a defendant may not have a strong preference for any one of the candidates. In addition, if all of the attorneys considered charge roughly comparable fees, they may also be roughly comparable in experience and ability. Under these circumstances, the erroneous disqualification of a defendant’s first-choice attorney may simply mean that the defendant will be represented by an attorney whom the defendant very nearly chose initially and who is able to provide representation that is just as good as that which would have been furnished by the disqualified attorney. In light of these realities, mandating reversal without even a minimal showing of prejudice on the part of the defendant is unwarranted. The consequences of the majority’s holding are particularly severe in the federal system and in other court systems that do not allow a defendant to take an interlocutory appeal when counsel is disqualified. See Flanagan v. United States, 465 U. S. 259, 260 (1984). Under such systems, appellate review typically occurs after the defendant has been tried and convicted. At that point, if an appellate court concludes that the trial judge made a marginally incorrect ruling in applying its own pro hac vice rules, the appellate court has no alternative but to order a new trial—even if there is not even any claim of prejudice. The Sixth Amendment does not require such results. Because I believe that some showing of prejudice is required to establish a violation of the Sixth Amendment, I would vacate and remand to let the Court of Appeals determine whether there was prejudice. However, assuming for the sake of argument that no prejudice is required, I believe that such a violation, like most constitutional violations, is amenable to harmless-error review. Our statutes demand it, and our precedents do not bar it. I would then vacate and remand to let the Court of Appeals determine whether the error was harmless in this case. The dissent proposes yet a third standard—viz., that the defendant must show “ ‘an identifiable difference in the quality of representation between the disqualified counsel and the attorney who represents the defendant at trial.’” Post, at 156 (opinion of Alito, J.). That proposal suffers from the same infirmities (outlined later in text) that beset the Government’s positions. In addition, however, it greatly impairs the clarity of the law. How is a lower-court judge to know what an “identifiable difference” consists of? Whereas the Government at least appeals to Strickland and the ease law under it, the most the dissent can claim by way of precedential support for its rule is that it is “consistent with” eases that never discussed the issue of prejudice. Post, at 156. The dissent resists giving effect to our cases’ recognition, and the Government’s concession, that a defendant has a right to be defended by counsel of his choosing. It argues that because the Sixth Amendment guarantees the right to the “assistance of counsel,” it is not violated unless “the erroneous disqualification of a defendant’s counsel of choice... impair[s] the assistance that a defendant receives at trial.” Post, at 153. But if our cases (and the Government’s concession) mean anything, it is that the Sixth Amendment is violated when the erroneous disqualification of counsel “impair[s] the assistance that a defendant receives at trial [from the counsel that he chose].” In Wheat v. United States, 486 U. S. 153 (1988), where we formulated the right to counsel of choice and discussed some of the limitations upon it, we took note of the overarching purpose of fair trial in holding that the trial court has discretion to disallow a first choice of counsel that would creafe serious risk of conflict of interest. Id., at 159. It is one thing to conclude that the right to counsel of choice may be limited by the need for fair trial, but quite another to say that the right does not exist unless its denial renders the trial unfair. The dissent criticizes us for our trial error/struetural defect dichotomy, asserting that Fulminante never said that “trial errors are the only sorts of errors amenable to harmless-error review, or that all errors affecting the framework within which the trial proceeds are structural,” post, at 159 (internal quotation marks and citation omitted). Although it is hard to read that case as doing anything other than dividing constitutional error into two comprehensive categories, our ensuing analysis in fact relies neither upon such comprehensiveness nor upon trial error as the touchstone for the availability of harmless-error review. Rather, here, as we have done in the past, we rest our conclusion of 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_applfrom	J	What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court). Walter A. DZIEDZINA v. DOLPHIN TANKER CORP., and Sinclair Refining Co. v. ATLANTIC PORT CONTRACTORS, INC., (Third-party Defendant), Appellee. Dolphin Tanker Corp., Appellant. No. 15440. United States Court of Appeals Third Circuit. Argued Jan. 6, 1966. Decided May 24, 1966. Mark D. Alspach, Philadelphia, Pa. (William C. Schultz, Jr., Krusen, Evans & Byrne, Philadelphia, Pa., on the brief), for Dolphin Tanker Corp., appellant. John B. Brumbelow, Philadelphia, Pa. (Goncer M. Krestal, Blank, Rudenko, Klaus & Rome, Philadelphia, Pa. on the brief), for Atlantic Port Contractors, Inc., appellee. Before BIGGS, GANEY and FREEDMAN, Circuit Judges. GANEY, Circuit Judge. This civil action based upon diversity of citizenship was filed by the plaintiff, a ship-cleaner employed by Atlantic Port Contractors, Inc., (Atlantic) against Dolphin Tanker Corporation (Dolphin) to recover damages for injuries sustained while working for Atlantic aboard the SS. Edward L. Steiniger, a tanker owned by Dolphin. Dolphin impleaded Atlantic as a third party defendant claiming indemnity for breach of Atlantic’s warranty of workmanlike service. The jury returned a general verdict in favor of the plaintiff and Atlantic, and against Dolphin. The court below refused Dolphin’s alternative motions for judgment n.o.v. or a new trial, and Dolphin appealed from that denial. Subsequently by stipulation with the approval of the Court, Dolphin satisfied the plaintiff’s judgment; consequently, the present appeal involves only the indemnity issue between Atlantic and Dolphin. The relevant facts are as follows: The vessel had run aground causing some hull damage with the result that there was excess water in the pump room and mud and water in the forepeak ballast tank. Dolphin through its port engineer Jackson hired Atlantic to clean and repair the vessel. Jackson testified that he exercised no supervision over the employees of Atlantic nor did he have authority to do so. His function was limited to telling O’Hara, Atlantic foreman, what was to be done. O’Hara was to have full control as to how the work was to be accomplished. During the course of the work, however, O’Hara told the plaintiff and two other men (Kricken and Wiltsey) to report to Jackson. Jackson told these men to clean out the ballast tank. Since they had no hose, they were provided with one of the vessel’s five hoses. Attempts to wash the tank from the deck were unavailing and the men were ordered into the tank by Jackson. It was then about 10:00 P.M. and the tank was not illuminated. The men requested light and boots; they were given a flash light and told “to get the hell down that hatch * * * here is a light and get”. The men went down into the tank; the plaintiff holding the nozzle, stood on a ten-inch wide ledge; Kricken playing out the hose and holding the light, straddled the ladder above the plaintiff. After a short time, both men went back up onto the deck and made a second request for more light, boots and some planking to stand on. This request, as the original request, was made to both Jackson and O’Hara and was denied. The men were ordered back to work as before. Fifteen minutes later, a sudden increase in water pressure jerked the hose from Dziedzina’s hands. The hose whipped about the tank out of control and the nozzle struck plaintiff before the water could be turned off. Plaintiff was severely injured. The crux of the dispute before this court, centers about the refusal of the District Court to accept three points for charge on the issue of indemnity offered by Dolphin. These points are set out below. The thrust of points eight and ten is directed at instructing the jury, that the indemnity implicit in the agreement between Dolphin and Atlantic can become operative in a situation of mutually shared fault. The language in which these points are couched is a correct statement of present Maritime Law; indeed this is conceded by Atlantic. However, the stevedore contends that these specific points were amply covered by the general instructions given to the jury. We are unable to so agree. A review of the charge in its entirety convinces us that its effect must have been one whereby the jury could have found either of these parties liable, but under no circumstances could it have found both liable. This was not only a mistake of law, but one which was highly prejudicial to the interests of the original defendant Dolphin. The legal concept of indemnity in maritime actions is of rather recent vintage. Halcyon Lines v. Haenn Ship Ceiling & Refitting Corp., 342 U.S. 282, 72 S.Ct. 277, 96 L.Ed. 318 (1952); Ryan Stevedoring Co. v. Pan-Atlantic Steamship Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133 (1956). The nascent theory of indemnity still-born in Halcyon burst forth into bloom in Ryan and has grown to the point where a stevedore is liable for indemnity to the ship owner where a latent defect in the equipment of the stevedore, undiseoverable by due diligence is what constitutes the unseaworthy condition. Neither party disputes the fact that it was the sudden and unexplained increase in the water pressure coursing through the hose which was the last link in the chain of circumstances causing the injury. However, there is sufficient evidence spread upon the record to indicate that had the workplace been in a seaworthy condition the accident could have been avoided or at least greatly mitigated. As stated above, the men were permitted to work in the tank without proper lighting and without the requested planking. This substandard condition was known to Atlantic’s foreman who did not take steps to rectify the deficiency as he should have. Here specifically it was incumbent upon the court to point out that knowledge of the unseaworthy condition in Dolphin did not defeat its right of indemnity against Atlantic. The court also had the duty to explain to the jury that even if the stevedore acts in a non-negligent manner, his warranty of workmanlike service is breached where such actions make the unseaworthiness of the vessel operative. These principles of Maritime Law are unique and distinct from the Common Law standards and for this reason, the District Court must be explicit; such was not the case here. Finally the court below failed to adequately cover in its general charge point #9 requested by Dolphin. The thrust of this point was aimed at making the jury aware that the right of indemnity exists where a preexisting condition of unseaworthiness was brought into active play by the action of the stevedore. The import of this point is obvious under the factual circumstances of this case. The jury should have been given the opportunity to decide whether or not it was the failure of Atlantic to properly instruct its employees to refrain from working in an obviously dangerous situation which was a contributory cause of this accident. This point was not covered adequately in the general charge given by the court below. Therefore for the foregoing reasons, a new trial limited to the indemnity issue between Dolphin and Atlantic will be granted. . Sinclair Refining Co. was an original defendant, but plaintiff’s action against it was dismissed during trial. . Request for charge No. 8. “If you find from the evidence that the services of Atlantic Port Contractors, Inc. were not performed in a careful and workmanlike manner and the failure to do so substantially contributed to the injury of the Plaintiff, then your verdict should be in favor of the Defendant herein, Dolphin Tanker Corp., and against Atlantic Port Contractors, Inc. in the third party action for all that the Plaintiff was awarded at your hands. Even though you find as a matter of fact that the fault on the part of the shipowner may have contributed to the injury in suit, it does not mitigate its claim over. It may recover in full on the warranty of workmanlike service. Ryan Stevedoring Co. v. Pan-Atlantic SS. Corp. (supra) [350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133]; Hershey Chocolate Corp. v. SS. Robert Luckenbach [D.C.], 184 F.Supp. 134, affirmed; Albina Engine and Machine Works [Inc.] v. Hershey Chocolate Corp., 295 F.2d 619 (C.A. 9 Cir. 1961); Casbon v. Stockard SS. Corp., 173 F.Supp. 845 (D.C.E.D.La.1959).” Request for charge No. 9. “If you do find from the evidence that there was an unseaworthy condition of the vessel and that tbe skip cleaner, Atlantic Port Contractors, Inc., by its negligence ‘brought that condition into play,’ then the ship cleaner has breached its duty to perform in a safe and proper manner and is liable over the shipowner. Crumady v. [Joachim Hendrik] Fisser et al., 358 U.S. 423, 79 S.Ct. 445 [3 L.Ed.2d 413].” Request for charge No. 10. “If you find that an unsafe condition existed and the ship cleaner-employer, Atlantic Port Contractors, Inc., by its foreman or workmen knew of it, and continued its men working there in the fore-peak ballast tank and that condition was a substantial factor in causing the injury, the shipowner, Dolphin Tanker Corp., is entitled to recover in its action over against the Atlantic Port Contractors, Inc., the Third Party Defendant, all that the Plaintiff is awarded at your hands. This still pertains even if the shipowner had the condition brought to its attention. Misurella v. Isthmian Lines, Inc., [D.C.], 215 F.Supp 857; DeGioia v. U. S. Lines [2 Cir.], 304 F.2d 421; Pettus v. Grace Line [Inc., 2 Cir.], 305 F.2d 151.” . Italia Societa per Azioni di Navigazione v. Oregon Stevedoring Co., 376 U.S. 315, 84 S.Ct. 748, 11 L.Ed.2d 732 (1964). Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)? A. Trial (either jury or bench trial) B. Injunction or denial of injunction or stay of injunction C. Summary judgment or denial of summary judgment D. Guilty plea or denial of motion to withdraw plea E. Dismissal (include dismissal of petition for habeas corpus) F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict) G. Appeal of post settlement orders H. Not a final judgment: interlocutory appeal I. Not a final judgment: mandamus J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment K. Does not fit any of the above categories, but opinion mentions a "trial judge" L. Not applicable (e.g., decision below was by a federal administrative agency, tax court) Answer:
songer_genresp1	G	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed respondent. Hazel ADKINS and Howard Adkins, Plaintiffs-Appellants, v. Richard L. PIERSON, Defendant-Appellee. No. 17130. United States Court of Appeals Sixth Circuit. March 22, 1967. Sherwin Schreier, Detroit, Mich., Maile, Leach & Silver, Detroit, Mich., on brief, for appellants. John D. Hayes, Detroit, Mich., Ward, Plunkett, Cooney, Rutt & Peacock, Detroit, Mich., on brief, for appellee. Before CELEBREZZE and PECK, Circuit Judges, and PORTER , District Judge. Honorable David S. Porter, United States District Judge for the Southern District of Ohio, sitting by designation. PER CURIAM. Two actions were filed in the District Court arising out of an automobile collision on December 16, 1961, at 9:30 p. m. on U. S. 24, Monroe County, Michigan, between a vehicle owned and operated by Richard L. Pierson, hereinafter referred to as Appellee, and a vehicle in which Hazel and Howard Adkins, hereinafter referred to as Appellants, were passengers. The vehicle, in which the Appellants were passengers in the rear seat, was struck from the rear after it had become disabled upon the highway and was not in motion and was without lights or other illumination. In Civil Action No. 23,309, Appellee Pierson sued the owner and driver of the vehicle in which the Appellants were passengers. In Civil Action No. 24,240, Pierson was sued by the Appellants. The two cases were consolidated for trial. In Case No. 24,240, in which Appellee Pier-son was Defendant, the defense was that he was confronted with a sudden emergency which created the perilous .condition causing the collision. The jury, hearing the two cases jointly, awarded a money judgment to Appellee Pierson in Case No. 23,309, and returned a verdict in favor of Appellee Pierson against the Appellants of no cause of action in Case No. 24,240. This appeal is initiated only from the jury’s verdict in Case No. 24,240. The only issue raised on appeal is whether or not the Trial Court properly instructed the jury on the doctrine of sudden emergency. Appellants contend that the Trial Court committed reversible error when it failed to include in its charge the specific language of the emergency doctrine, “that the party is entitled to the benefit of the rule only if the emergency occurs through no fault of his own”. Appellants took their exception to the Court’s charge and also asked the Court to correct its charge prior to the jury beginning deliberation. The Court refused to do so, believing its charge adequately covered this request. Appellee contends that the charge, when viewed as a whole, properly instructed the jury as to the applicable law. This Court must apply the Michigan law. The sudden emergency doctrine has been fully defined by the Michigan Supreme Court in Socony Vacuum Oil Co. v. Marvin, 313 Mich. 528, 21 N.W.2d 841 (1946), wherein the Court said: “It is claimed that the charge as given ignored the limitation that the socalled emergency doctrine did not apply if the peril was caused by negligence on the part of plaintiff’s driver or if his negligence contributed to such result. The general rule is stated in Huddy on Automobiles, 8th Ed., p. 359, as follows: “ ‘One who suddenly finds himself in a place of danger, and is required to act without time to consider the best means that may be adopted to avoid the impending danger is not guilty of negligence if he fails to adopt what subsequently and upon reflection may appear to have been a better method, unless the emergency in which he finds himself is brought about by his own negligence.’ The rule so stated was quoted, with approval by this Court in Walker v. Rebeuhr, 255 Mich. 204, 237 N.W. 389. “In view of the conflicting testimony as to how and why the accident happened, the jury should have been told that plaintiff was not entitled to the benefit of the emergency doctrine if his negligence contributed to or brought about the sudden peril by which it claims its driver was confronted. Under the holdings of this Court in Walker v. Rebeuhr, supra; Lagassee v. Quick, 273 Mich. 295, 262 N.W. 915, and other decisions of like import, we think that the failure to state the rule in such manner as to embody the necessary qualifications was erroneous.” This doctrine was reiterated in Hicks v. B & B Distributors, Inc., 353 Mich. 488, 91 N.W.2d 882 (1958) when the Court held: “The charge failed to advise the jury that a party is entitled to the benefit of the sudden emergency rule only if the emergency occurs through no fault or negligence of his own. “Such an instruction as the one above has been considered by this Court on several occasions, and the failure to advise the jury that a party is entitled to the benefit of that rule only if the emergency occurs through no fault or negligence of his own, has, in each instance, been held to constitute reversible error. Socony Vacuum Oil Co. v. Marvin, 313 Mich. 528, 21 N.W.2d 841; Hansel v. Hawkins, 326 Mich. 177, 40 N.W.2d 109, and cases to the same effect therein quoted by Chief Justice. Dethmers, including Walker v. Rebeuhr, 255 Mich. 204, 237 N.W. 389; Lagassee v. Quick, 273 Mich. 295, 262 N.W. 915; Anderson v. Bliss, 281 Mich. 323, 274 N.W. 809; Murner v. Thorpe, 284 Mich. 331, 279 N.W. 849.” See also Barringer v. Arnold, 358 Mich. 594, 101 N.W.2d 365 (1960): The Trial Court’s charge on sudden emergency was as follows: “There has been discussion about an emergency and what care is required. I charge you that when one is confronted with sudden peril, he is not required to exercise the coolness of judgment and care that a person who would — I will read it over again. “I charge you that when one is confronted with sudden peril, he is not required to exercise the coolness of judgment and care that a person would who was not confronted with danger, and is only required to act with that degree of care which an ordinarily prudent person would exercise if placed in such a position. To put it another way: One who is suddenly put in peril is not required to do that which, after the peril is ended, it is seen he might have done and escaped. The law makes allowance for the fright and lack of coolness of judgment incident to such peril or danger. “If such person in good faith acts as a person of ordinary prudence might have acted under the circumstance, he will not be guilty of either negligence or contributory negligence, even though the act done is actually dangerous and results in injury in attempting to escape injury.” It is obvious from a reading of the Court’s charge, and the appellee concedes that the charge failed to include the specific language of limitation of the emergency doctrine, “unless the emergency in which he finds himself is brought about by his own negligence.” Under Michigan law, where the emergency doctrine is applicable, it is incumbent upon the Court to give the complete emergency doctrine, and failing to do so is prejudicial error, even though the Court charged on the elements of negligence. The case is reversed and remanded for new trial. 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_app_stid	14	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Your task is to identify the state of the first listed state or local government agency that is an appellant. CHICAGO ASSOCIATION OF COMMERCE AND INDUSTRY, et al., Petitioners and Plaintiffs-Appellants, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent, and Lee Thomas, Administrator of the United States Environmental Protection Agency, Defendant-Appellee. Nos. 87-3057, 87-3074. United States Court of Appeals, Seventh Circuit. Argued Nov. 9, 1988. Decided April 28, 1989. James T. Harrington, Ross & Hardies, Chicago, Ill., for petitioners and plaintiffs-appellants. Michael A. McCord, Environmental Defense Sec., Land & Natural Resources Div., U.S. Dept, of Justice, Washington, D.C., for defendant-appellee. Before CUMMINGS, WOOD, Jr., and CUDAHY, Circuit Judges. CUDAHY, Circuit Judge. In this case we confront the consequences of an egregious failure on the part of the United States Environmental Protection Agency (the “EPA” or the “Agency”) to perform what the Agency itself admits to be its nondiscretionary duty. However, because this is not a suit to compel the EPA to perform that duty, we affirm the district court’s dismissal and deny the Chicago Association of Commerce and Industry’s (“CACI’s”) petition for review. I. A. Behind this case lies a prolonged history of foot-dragging on the part of the EPA in the face of ever-clearer mandates from Congress and the courts. The Federal Water Pollution Prevention and Control Act (the “Act”) sets forth its goals in unequivocal language: The objective of this chapter is to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters. In order to achieve this objective it is hereby declared that, consistent with the provisions of this chapter— (1) it is the national goal that the discharge of pollutants into the navigable waters be eliminated by 1985; (3) it is the national policy that the discharge of toxic pollutants in toxic amounts be prohibited.... 33 U.S.C. § 1251. Amendments to the Act enacted in 1972 and 1977 established stringent requirements limiting the discharge of effluents. By 1977, direct dischargers were to apply “the best available technology economically achievable” in order to effect “reasonable progress toward the national goal of eliminating the discharge of all pollutants.” 33 U.S.C. § 1311(b)(2)(A), see also 33 U.S.C. § 1317(a)(2). Any discharge of pollutants by direct dischargers required a permit from the Administrator. 33 U.S.C. § 1342. Indirect dischargers, who released toxic pollutants to publicly owned treatment works (“POTWs”), were also required to conform to “pretreatment” standards, in order to lessen the burden on public sewage plants and to better ensure that the goals of the Act were met. 33 U.S.C. § 1317(b)-(c). However, to avoid redundant treatment, an indirect discharger could obtain “removal credits” from a POTW, relieving the indirect discharger of responsibility for removing any toxic material that the POTW was itself capable of removing from the waste stream. 33 U.S. C. § 1317(b)(1). The removal credit provision of the Act is subject to two limitations: (1) the resulting discharge from the POTW must conform to “that effluent limitation or standard which would be applicable to such toxic pollutant if it were discharged by [the indirect discharger] other than through a publicly owned works” and (2) the indirect discharger’s release of toxics to the POTW must not “prevent sludge use or disposal” by the POTW in accordance with sludge disposal guidelines mandated in section 1345 of the Act. Id. The EPA is required under the Act both to promulgate regulations establishing pretreatment standards, 33 U.S.C. § 1317(b), and to promulgate regulations governing sludge disposal. 33 U.S.C. § 1345. B. Initially the EPA did promulgate removal credit regulations, which were amended several times prior to 1981. At that time the Third Circuit upheld the 1981 version of the regulations against challenges by both industry and environmental groups. National Ass’n of Metal Finishers v. EPA, 719 F.2d 624 (3d Cir.1983), (NAMF), reversed in part sub nom. Chemical Mfrs. Ass’n v. NRDC, 470 U.S. 116, 105 S.Ct. 1102, 84 L.Ed.2d 90 (1985). However, despite this vindication of the 1981 removal credit regulations, the EPA delayed the effective date of the 1981 regulations until ordered by the Third Circuit to reinstate them effective (retroactively) to March 10, 1981. Natural Resources Defense Council v. EPA, 683 F.2d 752, 768-69 (3d Cir.1982) (NRDC I). Although the EPA did at that point reinstate the 1981 regulations, it proceeded in 1984 to promulgate and adopt a new version of the removal credit regulations, with relaxed standards for granting removal credits. 49 Fed.Reg. 31212 (1984) (codified at 40 C.F.R. § 403.7) (1985). When the 1984 version of the regulations was challenged by the National Resources Defense Council (“NRDC”), the Third Circuit ruled that the new regulations failed to meet the requirements of the Act. National Resources Defense Council v. E.P.A., 790 F.2d 289 (3d Cir.1986), cert. denied, 479 U.S. 1084, 107 S.Ct. 1285, 94 L.Ed.2d 143 (1987) (NRDC II). The Third Circuit panel, in an opinion authored by Judge Garth, invalidated the 1984 removal credit provisions on four grounds: (1) the 1984 regulations no longer required that the POTWs and indirect dischargers together remove toxics with the same consistency required of direct dischargers; (2) the 1984 regulations deleted a requirement in the 1981 regulations which mandated that removal credits be adjusted to account for the discharge of untreated sewage when sewer systems overflowed; (3) the 1984 regulations provided for withdrawal of removal credits only if a POTW’s removal rate “consistently and substantially” dropped below mandated levels, a considerable change from the more stringent rule for withdrawing removal credits under the 1981 regulations; and (4) the EPA had failed to promulgate new sludge regulations to comport with the 1977 Amendments pertaining to sludge. Id. at 298-310. In response to this decision, the EPA decided to continue the 1981 regulations in effect. 52 Fed.Reg. 42434 (Nov. 5, 1987). This solved the first three difficulties discussed by Judge Garth, because the 1981 regulations adequately addressed the problems of consistency rates, adjustment for sewer system overflow and procedures for withdrawal of removal credits. However, the problem posed by the EPA’s failure to generate sludge regulations remained. The plain language of the Act predicates any grant of removal credits on compliance with sludge regulations; in the absence of those regulations, there can obviously be no removal credit program. The Third Circuit made this explicit: “The EPA cannot, in the absence of the section 405 regulations, authorize the issuance of removal credits under section 307(b)(1).” Id. at 314. C. Following the Third Circuit’s decision in NRDC II, Congress took the unusual step of staying part of that decision in an amendment enacted in February of 1987: The part of the decision of Natural Resources Defense Council, Inc. v. U.S. Environmental Protection Agency, 790 F.2d 289 (3d Cir.1986), which addresses section 405(d) of the Federal Water Pollution Control Act is stayed until August 81, 1987, with respect to— “(1) those publicly owned treatment works the owner or operator of which received authority to revise pretreatment requirements under section 307(b)(1) of such Act before the date of the enactment of this section, and “(2) those publicly owned treatment works the owner or operator of which has submitted an application for authority to revise pretreatment requirements under such section 307(b)(1) which application is pending on such date of enactment and is approved before August 31, 1987.” The Administrator shall not authorize any other removal credits under such Act until the Administrator issues the regulations required by paragraph (2)(A)(ii) of such Act, as amended by subsection (a) of this section. Water Quality Act, Pub.L. No. 100-4, 101 Stat. 74, § 406(e) (33 U.S.C. § 1345 note (West Supp.1988)). The subsection to which this passage refers requires the Administrator to propose sludge regulations by November 30, 1986 and to promulgate them “[n]ot later than August 31, 1987.” 33 U.S.C. § 1345. This the Administrator failed to do, and as of August 31, 1987, the Congressional stay expired. As of the time of oral argument in this case the EPA still had not promulgated the regulations required by statute, and counsel’s best guess at that time was that the proposed regulations would not be issued until April of 1989 at the earliest. II. Against this backdrop, we review the facts relevant to this case. The plaintiffs, constituents of the Chicago Association of Commerce and Industry, are indirect dis-chargers of effluent to a POTW, the Metropolitan Sanitary District of Greater Chicago (“MSD”). In May of 1985 the MSD had applied to the EPA for authority to issue removal credits to indirect dischargers. The Third Circuit decision invalidating the 1984 regulations was issued in April of 1986, and the Third Circuit’s mandate was issued following denial of certiorari in February of 1987. Also in February came the congressional stay until August 31, 1987, of the Third Circuit’s decision regarding sludge regulations. In March of 1987 the MSD renewed its request that the EPA review its application for removal credit authority, and the plaintiffs independently urged the EPA to take action before August, when the congressional stay would expire. The EPA responded to the MSD in April, and refused to take action because Congress had stayed only the portion of NRDC II that pertained to sludge regulations. Thus the other three grounds for invalidation remained. On May 28, 1987, the plaintiffs registered their dissatisfaction with the EPA’s position and mentioned the possibility of a suit to compel action under section 505(a)(2) of the Clean Water Act, 33 U.S.C. § 1365(a)(2). In June of 1987 the EPA announced that it would reinstate the provisions of the 1981 regulations that had been approved by the Third Circuit in NAMF, thereby remedying the defective provisions that had not been the subject of the congressional stay. MSD noted its intention to submit a revised application to conform with the newly reinstated EPA provisions as soon as the EPA issued a notice clarifying its decision. The EPA did not issue the notice when promised, and the plaintiffs filed an action in the district court on July 17, 1987, to compel the EPA to act on MSD’s first application for removal credit authority. In a memorandum submitted to the district court in response to a motion for summary judgment, the Administrator stated that the 1981 regulations had actually been reinstated by the Third Circuit’s decision in NRDC. The MSD immediately filed a revised application and plaintiffs amended their complaint accordingly. The August 31 deadline arrived shortly thereafter; as of that time the EPA was clearly without authority to authorize removal credit programs until sludge regulations were in place. On September 17 the EPA denied the MSD’s application. On October 27, 1987, the district court granted EPA’s motion to dismiss on the ground that without sludge regulations no action could be taken on the MSD’s application. This appeal consolidates CACI’s petition for review of the EPA’s decision denying the MSD’s application and CACI’s appeal from the district court’s decision granting EPA’s motion to dismiss. We deny CACI’s petition for review and affirm the district court’s decision, because the EPA’s extreme delay in generating sludge regulations does indeed forestall any further action on the MSD’s application for removal credits. III. CACI makes two arguments in its briefs: (1) It argues that the MSD was eligible for and should have received removal credit authority prior to August 31, 1987, and that removal credits authorized before that time should still be currently available; and (2) Even if the EPA cannot at this time complete the process of granting removal credit authority, it can process the MSD’s application in all other respects except as to sludge regulations in order to expedite the review process once sludge regulations are generated. However, before addressing the merits we first consider two threshold issues of standing and jurisdiction under the citizen suit provision of the Clean Water Act amendments. A. The district court concluded that the plaintiffs, as indirect dischargers for whose benefit the removal credit program was provided, have standing to seek action from the EPA in this matter. Chicago Ass’n of Commerce and Indus. v. Thomas, No. 87 C 6353, mem. op. at 9b, 1987 WL 19166 (N.D.Ill. Oct. 27, 1987) (CACI). This conclusion was clearly correct, cf. Allen v. Wright, 468 U.S. 737, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984), and the EPA chose not to press the issue here. The EPA does urge that jurisdiction is lacking because CACI failed to observe the 60-day notice requirement of section 505(b)(2) of the Clean Water Act. 33 U.S. C. § 1365(b)(2). Counsel for the plaintiffs gave the Administrator notice on May 28, 1987, when he warned the EPA that a citizen suit might be filed. The plaintiffs’ original complaint was filed July 17, 1987, only 50 days after notice was given. However, plaintiffs’ amended complaint, dated August 21, 1987, comports with the notice requirement, and it is the dismissal of that complaint that we review here. We therefore move on to review the district court’s decision dismissing the plaintiffs’ amended complaint, as well as the EPA’s action denying the MSD’s application. B. The plaintiffs seek two alternative kinds of relief. First, they contend that the MSD should have been granted removal credit authority prior to the August 31 deadline, that the EPA’s own unreasonable delay prevented the grant of authority and that the MSD is now entitled to action on its application. This assumes that a POTW that successfully obtained removal credit authority before the August 31 deadline could now continue to operate under that authority. The plaintiffs’ first argument rests on a strained reading of the “stay” provision enacted in the Water Quality Act amendment. This provision provided first that the portion of the Third Circuit decision invalidating the removal credit regulations because of inadequate provisions for sludge was stayed until August 31, 1987 with respect to (1) those publicly owned treatment works the owner or operator of which received authority to revise pretreatment requirements under section 307(b)(1) of such Act before the date of the enactment of this section, and (2) those publicly owned treatment works the owner or operator of which has submitted an application for authority to revise pretreatment requirements under such section 307(b)(1) which application is pending on such date of enactment and is approved before August 31, 1987. Water Quality Act, Pub.L. No. 100-4, 101 Stat. 74, § 406(e) (33 U.S.C. § 1345 note (West Supp.1988)). The provision further states that [t]he Administrator shall not authorize any other removal credits under such Act until the Administrator issues the regulations required by paragraph (2)(A)(ii) of such Act, as amended by subsection (a) of this section. Id. (emphasis added). The plaintiffs take the position that the word “other” in this passage refers to credits for which authority was not received prior to the August 31 deadline. They argue that any POTW that received authority to issue removal credits prior to that time may continue to issue them now. This approach comports with neither the statutory language nor the legislative intent here, and it flies in the face of the Third Circuit’s mandate in NRDC II. The first category excepted under the “stay” provision comprised POTWs that already had removal credit authority. These POTWs were given a stay until August 31, 1987. The reason that Congress felt that a stay was needed for these POTWs was clearly that it believed that the POTWs could not continue to grant removal credits during the interim period in the absence of such a stay. Why? Because the grant of any removal credit under section 1317(b)(1) is expressly conditioned on compliance with sludge standards, and no POTW can comply with the standards until they have been promulgated. The Third Circuit's opinion in NRDC II explicitly recognizes this problem: “We hold ... that the EPA cannot, in the absence of the [sludge] regulations, authorize the issuance of removal credits under section 307(b)(1).” NRDC II, 790 F.2d at 314. Thus the EPA’s position — that removal credits are no longer available to any POTW, including those that had received authority prior to passage of the Water Quality Act — is the correct one. Accord Armco v. EPA, 869 F.2d at 984-985 (6th Cir.1989). Even had the MSD received authority before the August 31 deadline, it would not be able to grant removal credits now. The plaintiffs alternatively request that the EPA be forced to begin processing the MSB’s application as to everything but sludge requirements, so that when the sludge regulations are promulgated the application can receive expedited treatment. The difficulty with this request is, as the district court noted, that the MSD cannot even submit a completed application until the sludge regulations are in place. The regulations governing the application process do not permit consideration of an application until it satisfies stated requirements, one of which is that every completed submission include “a certification that the granting of removal credits will not cause a violation of the sludge requirements....” 40 C.F.R. § 403.7(e)(4)(v). Even were the EPA to accept the application, the very first step of the subsequent review process requires the EPA to determine whether the submission meets the pertinent requirements — again, of course, including the sludge requirements. 40 C.F. R. § 403.11(b). We recognize that this “Catch-22” situation is a frustrating one, but there is no way that any action can be taken on the MSD’s application until sludge regulations are produced. IV. The only recourse remaining to plaintiffs is a suit that seeks to compel the EPA, at long last, to perform its admittedly nondis-cretionary duty and generate the sludge regulations as mandated. That is not this suit, although we are informed that an action of that kind is now pending. See LTV Steel Co. v. Thomas, No. 88 C 2130, 1988 WL 121576 (N.D.Ill. Nov. 9, 1988). Our decision in no way reflects approval of the course of action (or, more accurately, inaction) the EPA has pursued in this area. However, we must leave to a later day the puzzling question of how to compel a recalcitrant agency to perform a duty it has repeatedly been ordered to carry out, by Congress and by the courts. Until that time, we wash our hands of the sludge problem. The decision of the district court is Affirmed; CACI’s petition for review is Denied. . The Water Pollution Prevention and Control Act has been amended several times, including by the 1972 amendments known as the "Clean Water Act,” and the 1987 amendments referred to as the “Water Quality Act.” For ease of reference we will use "the Act” to refer to the Water Pollution Prevention and Control Act as amended, and will designate the amending Acts by name when referring specifically to them. . The Supreme Court reversal of portions of this decision did not affect the Third Circuit’s determination as to the removal credit program. . Direct dischargers were required to meet limitations 99% of the time at the time of the 1977 Amendments. The first regulations promulgated by the EPA in 1978 permitted removal credits to be granted if POTW and indirect dis-chargers together could achieve a 95% consistency rate. The 1981 rule, upheld by the Third Circuit, lowered this figure to 75%. However, the 1984 rule moved the consistency rate requirement still lower, to 50%, a figure which the Third Circuit understandably found inadequate: "Under the EPA’s current definition of consistent removal, discharges could be above the limit for months at a stretch, so long as these above-average months were offset by below-average discharges in other months." 790 F.2d at 305. Permitting this to happen would clearly undermine the goals of the statute, for "a single concentrated discharge of a toxic pollutant can do irreparable damage,” and this was the reason for instituting consistency requirements in the first place. Id. . Under the 1981 regulations, any discharge beyond permitted amounts was considered a "significant contribution” to a violation of the discharge limits, and as such triggered action by the EPA or state that could culminate in withdrawal of removal credits upon sixty days’ notice. 46 Fed.Reg. 9447; see also 40 C.F.R. § 403.3(i) & (n) (1982). . The 1984 regulations attempted to deal with the sludge issue by using sludge requirements from other statutes to provide guidelines. 40 C.F.R. § 403.7(a)(l)(ii) (1985). The Third Circuit held that this “grab-bag” approach did not "provide the comprehensive standards for sludge disposal intended by section 405(d).” NRDC II, 790 F.2d at 313. . Neither the earlier Third Circuit decision in NAMF nor the Supreme Court opinion reviewing that decision directly addressed the sludge regulation problem. Chemical Mfrs., 470 U.S. 116, 105 S.Ct. 1102, 84 L.Ed.2d 90 (1985); NAMF, 719 F.2d 624 (3d Cir.1983). . This section, as amended, reads: Except as provided in subsection (b) of this section and section 1319(g)(6) of this title, any citizen may commence a civil action on his own behalf— (2) against the Administrator where there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator. 33 U.S.C. § 1365(a)(2). . The formal notice to this effect finally appeared in the Federal Register on November 5, 1987. 52 Fed.Reg. 42434. . Thus the jurisdictional situation here is quite different from that in Armco v. EPA, 869 F.2d 975 (6th Cir.1989), a case in which the plaintiff attempted to obtain review of the EPA's failure to generate regulations through a petition for direct review of the agency’s inaction (and of its Federal Register notice announcing the interim suspension of removal credits). The Sixth Circuit concluded that the proper procedure for seeking review of the EPA’s failure to perform its duty was a citizen’s suit in the district court rather than a petition for direct review. In the case before us, by contrast, CACI seeks both review of a distinct agency action (its denial of the MSD’s application) and review on appeal from a decision of the district court. .Citizen suits are subject to a 60-day notice requirement: No action may be commenced— (1) under subsection (a)(1) of this section— (A) prior to sixty days after the plaintiff has given notice of the alleged violation (i) to the Administrator, (ii) to the State in which the alleged violation occurs, and (iii) to any alleged violator of the standard, limitation, or order, or (B) if the Administrator or State has commenced and is diligently prosecuting a civil or criminal action in a court of the United States, or a State to require compliance with the standard, limitation, or order, but in any such action in a court of the United States any citizen may intervene as a matter of right. (2) under subsection (a)(2) of this section pri- or to sixty days after the plaintiff has given notice of such action to the Administrator, except that such action may be brought immediately after such notification in the case of an action under this section respecting a violation of sections 1316 and 1317(a) of this title. 33 U.S.C. § 1365(b). Section 1316 mandates the promulgation of regulations by the Administrator within a year of the time a category of sources is included under the statute, and delineates a procedure by which states can gain authority to enforce the standards set by the Administrator. 33 U.S.C. § 1316. Section 1317(a) outlines the process through which the Administrator is to generate a toxic pollutant list and standards for effluent limitations. 33 U.S.C. § 1317(a). . We agree with the district court that the procedure outlined in its footnote 5 (dismissal without prejudice of the original complaint, and refiling of a new complaint) would have been preferable, and we commend that procedure in future instances. See CACI, mem. op. at lib (N.D.Ill. Oct. 27, 1987). However, "[u]nless we are to become a citadel of technicality,” Soo Line R.R. Co. v. Escanaba & Lake Superior R.R. Co., 840 F.2d 546, 549 (7th Cir.1988), proliferating unnecessary and duplicative paperwork, we will not rest jurisdiction on variations of this kind. . We review the Agency’s action denying the MSD’s application under 33 U.S.C. section 1369(b)(1)(F), which provides for review of the Administrator’s actions regarding permits issued to direct dischargers. Here the MSD seeks a modified permit from the EPA whose terms would supercede those of its original permit granted pursuant to 33 U.S.C. section 1342(a)(1), which requires that discharge meet the requirements of sections 1311, 1312, 1316, 1317 (pretreatment standards for indirect dischargers), 1318 and 1342. Question: What is the state of the first listed state or local government agency that is an appellant? 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_district	B	What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable". UNITED STATES v. MOLYNEAUX et al. No. 231. Circuit Court of Appeals, Second Circuit. Feb. 8, 1932. Louis Halle, of New York City (Milton R. Kroopf, of New York City, of counsel), for appellant Molyneaux. Howard W. Ameli, U. S. Atty., of Brooklyn, N. Y. (Herbert H. Kellogg, William T. Cowin, and Henry G. Singer, Asst. U. S. Attys., all of Brooklyn, N. Y., of counsel), for the United States. Before MANTON, AUGUSTUS N. HAND, and CHASE, Circuit Judges. AUGUSTUS N. HAND, Circuit Judge. The appellant, Cecil Molyneaux, and an alleged confederate, Malcolm McMasters, were convicted under count 2 of the indictment which charged the defendants with unlawfully operating certain apparatus for the transmission of energy, communications and signals by radio, for which a radio license was required by the Radio Aet of 1927 (47 USCA § 81 et seq.), without first having obtained an operator’s license to operate the apparatus from the Secretary of Commerce required by section 20 of the Radio Act of 1927 (47 USCA § 100). The indictment is attacked as insufficient because it did not in terms charge that the appellant operated the apparatus for the purpose of transmitting signals or intelligence beyond the borders of the state of New York, and was silent as to the intended or actual destination of the messages. Section 1 of the Radio Act (47 U. S. C. § 81 [47 USCA § 81]) provides that no person shall use any apparatus for communication by radio from any place within any state when the effects of such use extend beyond the borders of such state. In other words, an apparatus, the effects of which extend beyond the state in which it is stationed, comes within the law requiring a station license. Section 20 of the Radio Act (47 USCA § 100) provides that the actual operation of all transmitting apparatus in any radio station for which a station license is required shall be carried on only by a person holding an operator’s license. The second count of the indictment essentially alleges that the defendants did operate an apparatus for the transmission of communications by radio for which a radio license was required by the Radio Act of 1927, without having first obtained an operator’s license. In other words, it in effect alleges that, without an operator’s license, they operated a radio apparatus for which a station license was required by section 1 of the act. [2, 3] In charging a statutory offense it is ordinarily sufficient to charge it in the words of the statute. Baas et al. v. United States (C. C. A.) 25 F.(2d) 294; United States v. Brand (D. C.) 229 F. 847; Newton Tea & Spice Co. v. United States (C. C. A.) 288 F. 475; Lund v. United States (C. C. A.) 19 F.(2d) 46; Blain v. United States (C. C. A.) 22 F.(2d) 393; Olmstead v. United States (C. C. A.) 29 F.(2d) 239. Accordingly the allegation that the defendants operated a radio apparatus for which a radio license was required by the Radio Aet of 1927, without first having obtained an operartor’s license seems to ns to have incorporated by reference the provisions of section 1 requiring a station license in ease of an apparatus, the effects of which extend beyond the borders of the state. The indictment was therefore sufficient in form and fairly notified the defendants of the charge which they had to meet. There was plainly enough evidence to go to the jury to justify a finding that the apparatus operated was of the sort which required a station license and that the defendants did not have operators’ licenses. But there was no adequate proof that Molyneaux, who is the only defendant who has taken an appeal, actually operated the apparatus at all. He was seen by the government witnesses to he bending over the apparatus handling two wires that came into the building where the radio instrument was and adjusting some screws (fol. 532-533), but there is not the slightest proof that he was operating it, though he was in faet an experienced operator. For that matter the other defendant McMasters was also a trained operator and the evidence showed that the only operation which had been actually detected was traced to him. When the officers entered, both defendants were in their shirt sleeves, both were alarmed and tried to escape. The evidence showed that Molyneaux was familiar with the premises, that he had written a letter to a friend in which he said, “ * * * it’s a heck of a scramble trying to" outwit the authorities all the time,” and that he had in a bag, among things found at the time of his arrest, orders for the purchase of supplies for radio apparatus. But, so far as the evidence goes, Molyneaux might have been on the promises to see McMasters or to get information that McMasters had received by radio, or was receiving, or to adjust or repair the apparatus. Such proof as the record contains goes no farther than to show that Molyneaux could operate the instrument and that for some reason, perhaps because he was engaged in illegal dealings in spirituous liquors (Exhibit 7), he was afraid of the public authorities. The trial judge refused to leave to the jury the question whether Molyneaux aided and abetted McMasters in operating without a license. Molyneaux could not be convicted for operating without a license, if he merely was acting as a mechanic and had not operated the apparatus in order to receive or transmit messages. The evidence on which McMasters was convicted tended to show that he alone had operated the radio instrument, and to exclude Molyneaux. For the foregoing reasons the judgment of conviction is reversed as to the defendant Molyneaux. 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_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 Marcus N. BRESSLER, Plaintiff-Appellee, v. FORTUNE, A DIVISION OF TIME INC., Defendant Appellant. No. 91-5601. United States Court of Appeals, Sixth Circuit. Argued Jan. 23, 1992. Decided Aug. 6, 1992. Rehearing and Rehearing En Banc Denied Oct. 16, 1992. Janet Mayfield Hogan (briefed), Knoxville, Tenn., William H. Ogle, Ormond Beach, Fla., Paul N. Minkoff (argued), Klovsky, Kuby & Harris, Philadelphia, Pa., for plaintiff-appellee. Floyd Abrams (argued & briefed), Dean Ringel, Cahill, Gordon and Reindel, New York City, R. Louis Crossley, Jr., Long, Ragsdale & Waters, Knoxville, Tenn., for defendant-appellant. Laura Handman (briefed), New York City, for Amici Curiae. Before: GUY, NORRIS, and BATCHELDER, Circuit Judges. RALPH B. GUY, Jr., Circuit Judge. Defendant, Fortune Magazine, appeals a $550,000 jury verdict in a libel suit brought by plaintiff, Marcus Bressler. Bressler’s claim stemmed from a 1986 Fortune article which reported allegations that Bressler, an official of the Tennessee Valley Authority, had attempted to cover up safety violations at TVA’s Watts Bar nuclear plant. Fortune argues that Bressler, a public official, failed to establish that the article’s statements were false and that the reporters acted with actual malice. Fortune also contends that the district court erred in instructing the jury that Bressler need only prove the article’s falsity by a “preponderance of the evidence,” rather than by “clear and convincing” evidence. Our thorough review of the record— which details the information provided by the various sources on which the Fortune reporters relied — reveals that the evidence falls short of demonstrating that the reporters realized their statements were false or had serious doubts as to the truth of their statements. We thus reach the contest over the article’s “falsity” only tangentially; we reach not at all the debate over the proper standard of proof for falsity in a public official’s libel suit. On the actual malice issue alone, we reverse and remand for entry of judgment in favor of Fortune. I. In October 1986, Fortune published an article focusing mainly on federal officials’ allegations that TVA’s chief of nuclear operations (not the plaintiff here) may have violated conflict-of-interest and salary rules. Seven of the article’s 33 paragraphs, however, reported on investigators’ “allegations about an attempted cover-up of safety questions at the Watts Bar plant.” Brian Dumaine, Nuclear Scandal Shakes the TVA, Fortune, Oct. 27, 1986, at 44. The article explained that Howard Hasten, an “authorized nuclear inspector” with Hartford Steam Boiler, which had contracted with TVA to inspect the construction of the Watts Bar plant, discovered that welds in pipes carrying water to and from the nuclear reactor containment area had not been tested in accordance with the governing engineering code. At that stage of construction, performing the necessary tests and inspection would have been extremely time-consuming and costly, since many of the pipes had already been insulated and installed. The article further stated that TVA had issued a safety report which recommended that the pipes be “used as is.” Hasten initially refused to sign this report, since the lack of proper testing violated minimum safety standards. “A burst pipe could set off a serious nuclear accident,” according to the article. The Fortune story then noted that a “campaign ... to force Hasten to sign the report” was mounted, and that an internal investigation at TVA revealed that managers at TVA’s engineering codes and standards office (of which plaintiff Bressler is a member) called Haston’s superiors at Hartford to complain about Haston’s intransigence. Haston’s supervisor, Harold Robi-son, pressured Haston to sign; Haston finally did so, but wrote that his signature was only at Robison’s direction. The article went on to state that TVA investigator Jerry Smith had received anonymous telephone calls about pressure on Hartford inspectors and that TVA had received an anonymous letter threatening to publicize the welding problems unless TVA persuaded Hartford to increase its inspectors’ salaries. “According to TVA investigators,” the article continued, “Marcus Bres-sler ... tried to cover up the breach of safety standards” and “warned Hartford Steam Boiler to get its inspectors in line or TVA would not renew its inspection con-tract_” The TVA Board of Directors assigned another internal investigator, Mansour Guity, to look into the origin of the anonymous extortion letter. Guity was unable to link the letter to Hartford inspectors, but, according to the article, Guity “did find out about the pressure Bressler had exerted to cover up the safety violation.” Investigators Smith and Guity later complained to the U.S. Labor Department that TVA management had harassed and intimidated them for voicing their safety concerns. The Labor Department ruled in their favor. The Fortune story added that the “Hartford Steam Boiler incident was confirmed in a draft report by the Nuclear Regulatory Commission’s office of investigation.” The article attributed this information to “congressional sources.” At Bressler’s ensuing libel trial, Fortune introduced the final report of the Nuclear Regulatory Commission which concluded, among other things, that TVA managers might have pressured Hartford to accept the “use as is” proposal in the report about the pipe welds even though the welds violated code requirements. Fortune also introduced the notes the reporters took during interviews with the private and federal investigators, who had identified Bressler as the source of the pressure, and the corroborating deposition testimony of two former TVA officials. The reporters’ testimony included explanations of how they developed the story and subjected it to the magazine’s pre-publication fact-checking process.. A journalism expert for plaintiff testified, over defendant’s objection, that the Fortune reporters’ investigation and writing “fell far below the standard of journalism” and that the reporters “knew [the article] was false.” We address this evidence more fully below. The jury found that the statements about Bressler were false and. that the reporters had acted with actual malice. Bressler was awarded $250,000 in compensatory damages and $300,000 in punitive damages. The district court denied Fortune’s. JNOV and new trial motions, and Fortune now appeals. II. The trial judge determined that Bressler was a public official; as such, Bressler could prevail only by showing that Fortune published the article with actual malice, New York Times Co. v. Sullivan, 376 U.S. 254, 279-80, 84 S.Ct. 710, 725-26, 11 L.Ed.2d 686 (1964), and by demonstrating that the “gist” of the article was false, Masson v. New Yorker Magazine, Inc., — U.S. -, -, 111 S.Ct. 2419, 2433, 115 L.Ed.2d 447 (1991). In a recent public-figure libel case summarizing accepted formulations of the “actual malice” test, the Supreme Court stated that the test requires at a minimum that the statements were made with a reckless disregard for the truth. And although the concept of “reckless disregard” “cannot be fully encompassed in one infallible definition,” we have made clear that the . defendant must have made the false publication with a “high degree of awareness of ... probable falsityf.]” Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 667, 109 S.Ct. 2678, 2685,105 L.Ed.2d 562 (1989) (citations omitted). The Court emphasized that the inquiry is “subjective,” focusing on whether the defendant “ ‘in fact entertained serious doubts as to the truth of his publication.’ ” Id. at 688, 109 S.Ct. at 2696 (citation omitted). Actual malice, defined in this way, must be established by “clear and convincing proof.” Gertz v. Robert Welch, Inc., 418 U.S. 323, 342, 94 S.Ct. 2997, 3008, 41 L.Ed.2d 789 (1974). The question whether the record may support a finding of actual malice is a question of law. Harte-Hanks, 491 U.S, at 685, 109 S.Ct. at 2694. The Harte-Hanks Court also set forth the duty of an appellate court considering a case such as this one. In determining whether the constitutional standard has been satisfied, the reviewing court must consider the factual record in full. Although credibility determinations are reviewed under the clearly-erroneous standard ... the reviewing court must “ ‘examine for [itself] the statements in issue and the circumstances under which they were made to see ... whether they are of a character which the principles of the First Amendment ... protect[.]’ ” Id. at 688, 94 S.Ct. at 2696 (citations omitted). Based on our review of the entire record — the several sources on which the Fortune reporters relied, the substance of those sources’ statements, and the content of the various documents consulted in preparing the article — we believe the evidence could not have supported a finding of actual malice under the "clear and convincing” standard. This determination obviates the need to address the proper standard by which a trier of fact must measure a publication’s falsity. Although our conclusion regarding actual malice in this case necessarily suggests that the gist of the article was substantially true, we do not reach this issue. The “gist” of the contested portion of the Fortune article was that plaintiff Bres-sler allegedly played a lead role in pressuring an independent inspector to certify, contrary to fact, that' certain safety-related welds in the Watts Bar plant met the engineering code requirements, and that Bres-sler also attempted to cover up that safety violation. We now examine the defendant’s basis for reporting such allegations. III. In the course of researching a story on TYA’s non-operating nuclear power reactors and allegations that TVA’s chief of nuclear operations may have violated federal conflict-of-interest standards, Fortune reporters Brian Dumaine and Brett From-son learned about Nonconforming Condition Report (NCR) 5609. Howard Haston, the inspector from the Hartford company, had discovered that certain welds on pipes within the plant’s penetration assemblies had not been visually inspected for leakage during the mandatory “hydrostatic” (water-pressure) testing. Such inspection was required under the code promulgated by the American Society of Mechanical Engineers (ASME). It was Haston’s duty, as an authorized nuclear inspector, to check for compliance with the ASME code. Given the welds’ location within the plant, they were considered “safety-related” components. Having discovered this noncompliahce, Haston prepared NCR 5609 describing the problem. TVA, so alerted, was supposed to suggest a means of solving the problem. Bressler, TVA’s specialist on the ASME code, discussed the matter with Haston’s superiors, Harold Robison and William Higginbotham. Haston did not know what Bressler said in these conversations, and thus could not say that Bressler made any threats regarding Hartford’s contract with TVA. Haston said, however, that given Higginbotham’s “volatile personality ... . any discussion between a client ... and that supervisor could have been construed as threatening because he was concerned about that.” Faced with NCR 5609, TVA engineer Dorwin Etzler consulted with Bressler and decided to recommend that the welds be “used as is.” Bressler was “instrumental in suggesting [this] disposition,” according to Etzler’s trial testimony. Inspector Ha-ston’s signature was then required on the report in order to approve the “use as is” disposition. If Haston failed to sign it, TVA would have to obtain approval from the Nuclear Regulatory Commission (NRC) — which could delay the plant’s start-up. Bressler later admitted to NRC investigators that the planned schedule for fuel loading affected the decision to forgo the required inspection of the welds. Haston initially refused to sign the report because to do so would be to certify that the welds met the ASME code, which they did not. Haston finally submitted to pressure from his superiors, but he also inscribed the “unprecedented” notation that his signature was only “per written and verbal direction of H.L. Robison.” Bressler conceded at trial that the welds did not meet the code. Several months later, after TVA had certified to the NRC that the Watts Bar plant was ready for an operating license, a subcommittee of the House Committee on Commerce and Energy had assigned an investigator, John William. Nelson, to look into allegations, as Nelson put it, of “collusion between T.V.A. and Hartford Steam Boiler ... to the effect their on-site nuclear inspectors were being intimidated or forced to sign off on systems that they felt were not safe.” Shortly thereafter, an engineer on TVA’s internal investigatory unit, the Nuclear Safety Review Staff (NSRS), wrote a memorandum to the TVA Board. The engineer, Jerry Smith, told the Board that anonymous telephone callers had complained that the nuclear inspectors had been “bought off" or “told to back off by their employers as a result of ‘TVA pressure.’ ” In response, the TVA Board hired an independent contractor, the Quality Technology Corporation (QTC), to investigate the matter raised in Smith’s memorandum. When an anonymous extortion letter arrived at TVA, threatening to inform the NRC of ASME code violations if Hartford inspectors were not given a raise, the TVA Board launched a second investigation. This second inquiry was headed by Mans-our Guity, also of the TVA’s internal investigatory unit (the NSRS). Guity reported to his TVA superiors that the evidence he had gathered showed that the extortion letter was written by a TVA employee and not a Hartford inspector; more importantly, Guity told the Board that there had been collusion between TVA and Hartford managers in coercing inspectors to accept nonconforming components. Guity told TVA Assistant General Counsel William Mason that Bressler had played a lead role in the apparent collusion by “using his position on various national code committees to cause Hartford to take positions on T.V.A. code technical issues that they wouldn’t otherwise take.” Guity apparently had some difficulty completing his investigation, however. TVA management initially told Mason that the inspectors were refusing to talk to Guity. Mason later learned that the inspectors were willing to provide information, “and that the only problem was that there was this either perception or fact that the code section in [TVA’s] office of engineering was having this communication outside the procedure with Hartford” in an attempt to pressure the inspectors not to talk. Bres-sler was the TVA official responsible for code compliance. During this time, Bressler met with Ha-ston’s superiors and other Hartford managers. Bressler told Hartford that he had lost confidence in the company as a result of the extortion letter, and he also complained that Hartford inspectors were communicating with QTC, the company the TYA Board had hired to investigate the origin of the anonymous phone calls and the extortion letter. Due in part to Bres-sler’s complaints, Hartford instituted new regulations restricting its inspectors’ ability to communicate with outside investigators. Robison, Haston’s supervisor at Hartford, also sent a memorandum to Hartford inspectors at Watts Bar warning them that “TYA has voiced a concern that the Authorized Nuclear Inspectors are spending too much time with the Quality Technology Corporation.” Before the NSRS investigation into the alleged collusion was finished, Guity resigned, claiming that his TVA superiors were exerting “undue pressure” on him as a result of his initial findings. Guity filed a retaliation claim against TVA; Jerry Smith, also of the NSRS, did the same. Their claims were upheld. The NRC then launched its own investigation into the allegations of collusion and intimidation of inspectors. Fortune reporter Fromson learned from Henry Myers, an advisor to a subcommittee of the House Committee on Commerce and Energy (whom the NRC had briefed on its investigation), that the NRC had uncovered evidence corroborating the NSRS findings. According to Fromson’s notes on his interview with Myers, Myers said the NRC had discovered “[t]hat there was a violation of the ASME code. That Bressler at TVA pressured Higginbotham [at Hartford].... That Higg[inbotham] told Robison tó pressure Haston. That Robison did so. Bres-sler is the guy who pressured Hartford....” Meanwhile, as the NRC pursued its investigation, Fortune reporter Brian Du-maine interviewed Owen Thero, a former investigator for QTC — the company the TVA Board had hired to look into the allegations of collusion and intimidation raised by Jerry Smith. Thero told Dumaine that Bressler had warned Hartford management, “If you don’t play ball — Hartford could lose [its] contract.” Dumaine also interviewed Guity and Smith, the two NSRS investigators who had successfully sued TVA for retaliation. Dumaine’s interview notes indicate that Guity told the reporter that “the TVA management and Hartford managers forced (other) Hartford managers to sign off on pipes despite objections of Hartford inspectors[.]” Fortune reporter Brett Fromson also interviewed Guity on several occasions. According to Fromson’s interview notes, Guity informed him that “TVA pressured the home office of Hartford to accept the work.” “There was apparent collusion between the Hartford regional managers and the TVA managers to persuade the ANI [inspector] to approve penetration welds which were not hydro-statically tested.” Guity also said that TVA officials had attempted to thwart his investigation. The reporters also examined transcripts of deposition testimony taken as part of Guity’s and Smith’s labor claims against TVA. Mason, TVA’s lawyer, had testified that there “was a serious question, whether there was an improper T.V.A. link that was defeating the purpose of the [Hartford inspection] contract[.]” Mason also testified that Guity had told Michael Kidd, who had headed the NSRS, “that Mark Bressler ... was using his position on various national code committees to cause Hartford to take positions on T.V.A. code technical issues that they wouldn’t otherwise take.” Mason further testified that Guity had told Mason that Bressler would contact the Hartford regional office about code compliance problems raised at the nuclear plant sites, and the regional office would then contact the sites and proceed to “explain away or order the resolution of the code issues ... despite the fact that the code or the required engineering and substitution for the code may not have been in fact done.” Both Mason and Kidd, whose deposition the reporters also studied, testified that Guity enjoyed a reputation as one of TVA’s top investigators. Fromson interviewed another QTC investigator, William Kemp, who also pointed to Bressler as the TVA official pressuring Hartford on code issues. Kemp told From-son that when inspector Haston refused to sign NCR 5609, Bressler called Higginbotham, and Higginbotham then called Robison (Haston’s more immediate supervisor), complaining that, “[Y]our guy [Haston] is raising hell,” and instructing Robison to make Haston sign the report. Fromson also spoke with Haston himself who, though initially reluctant to talk, stated that he had indeed signed the report only when Robison compelled him to, and that “Higginbotham was getting calls from Bressler, the guy in charge of ASME codes and standards[.]” Haston also told From-son that he didn’t think that Bressler had “ever directly threatened ... to pull the contract, but the fear that it might be pulled was always there for Hartford.” When Fromson tried to reach Haston’s supervisors for comment, he was referred to Hartford’s attorney who said only that Hartford “has done nothing wrong.” Fromson claims he made repeated attempts to reach Bressler for comment, leaving messages with TVA’s public relations department and at Bressler’s own office. At trial, Bressler acknowledged receiving only one call from the reporter, which he did not return. Fromson said he read the relevant portions of the article to TVA’s public relations officer, who ultimately responded that TVA would have no comment. Once Dumaine and Fromson had completed a first draft of the article, Fortune editors subjected it to the magazine’s standard fact-checking process, during which the reporters would read passages of the article to the sources from whom they had gleaned the information. None of these sources — including Guity, Myers, Kemp, Thero, and Smith — found the article inaccurate. IV. The record, as summarized above, demonstrates that the Fortune reporters relied on a variety of mutually corroborative sources and materials. The reporters’ research revealed that four separate investigations — by QTC, the NRC, TVA’s own NSRS, and the House Committee on Commerce and Energy — had uncovered evidence that TVA, through Hartford management, had exerted pressure on Hartford inspectors. Three of these investigatory sources (Guity, Kemp, and Myers) specifically identified Bressler as the source of the pressure on Hartford, and a fourth (Thero) told Dumaine about a specific threat by Bressler regarding Hartford’s contract with TVA. The interview with inspector Hasten also confirmed that he signed NCR 5609 only under duress, that Bressler had had contact with Haston’s superiors while this report was being considered, and that any communication with Bressler, as a Hartford client, would have been deemed a threat to Hartford’s contract. The reporters also examined the deposition testimony of TVA Assistant General Counsel William Mason and former NSRS chief Kidd which confirmed that Bressler was the source of pressure on the inspectors to accept nonconforming items, and that the inspectors had felt inhibited about talking to the outside investigators — due to pressure emanating from the “code section in the office of engineering” (Bressler’s domain). Finally, the pre-publication checking process failed to reveal any inaccuracies, and the reporters sought comment from Hartford, TVA, and Bressler in particular. Based on our detailed examination of the evidence on which Dumaine and Fromson relied in reporting the allegations — identified as such — in the Fortune article, we are convinced that the finding of actual malice in this case is unsupportable. The variety of the sources, their corroborative statements and apparent reliability, and the pre-publication scrutiny to which the sources’ information was subjected, all contribute to our conclusion. If the .televised reading of another’s affidavit accusing an official of bribery does not constitute actual malice even when the reader relies solely on the affidavit and makes no attempt to verify the accusation, then the comparatively extensive research effort by the Fortune reporters here, which gleaned consistent statements from multiple reliable sources, compels us to conclude that actual malice cannot be found on this record. There simply is not enough evidence to show that the defendant actually “entertained serious doubts as to the truth of [the] publication.” St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 1325, 20 L.Ed.2d 262 (1968). We also reject Bressler’s attempt to analogize this case to Harte-Hanks. In that case, the Supreme Court found actual malice in the publisher’s failure to consult a key witness and listen to a readily available tape recording of a contested conversation. These efforts would have verified or contradicted the informant’s “highly improbable” charges, which five other witnesses had cast into serious doubt. Harte-Hanks, 491 U.S. at 691-92, 109 S.Ct. at 2697-98. Given the consistent stories which Fortune’s several sources had provided, and those sources’ apparent reliability, Fortune’s decision not to gain additional comment from Harry Jackson — whom Kemp had identified as an expert on code issues— cannot be equated with the Journal News’ failure in Harte-Hanks to interview Patsy Stephens and'listen to the tape recording of her interview with COnnaughton. Unlike in Harte-Hanks, we can find no evidence here of a “purposeful avoidance of the truth.” Id. at 692, 109 S.Ct. at 2698. The judgment in favor of the plaintiff is REVERSED, and the case is REMANDED for entry of judgment in favor of the defendant. . The dissent suggests that we have required Bressler, a minor figure in the article, to demonstrate the falsity of the entire article. Our analysis reveals, however, that we have done no such thing. We have focused solely on the discrete passages in dispute. . The dissent relies on Masson in criticizing our purported rewriting of the article’s defamatory statements. Masson, however, in addition to confirming that it is the "gist” of the statements which must be examined, — U.S. at-, 111 S.Ct. at 2433, considered the significance of rewriting, or misquoting, by a defendant-publisher, and not by a reviewing court. Further, there has been no allegation that the Fortune reporters altered or fabricated any quotations. .Before the Nuclear Regulatory Commission would allow Watts Bar to operate, inspectors like Haston had to certify that the plant complied with the ASME code, or that there had been a satisfactory "disposition" of any noncomplying materials or components. . Nelson was deposed as a witness in a suit brought by a TVA investigator, Jerry Smith, against TVA. The Fortune reporters reviewed his deposition as part of their research for the article at issue here. . The article states that Myers, identified as a "congressional source[],” had said the allegations were confirmed in a draft NRC report. The final NRC report, issued one month after the Fortune article appeared, confirmed that Hasten had been "coerced, pressured, harassed, threatened and/or intimidated by Higginbotham [or] Robison” into accepting TVA’s "use as is” disposition “which did not meet the minimum requirements of the ASME Code.” The NRC report also states that Bressler admitted the ASME code was violated when the welds were not visually examined during the hydrostatic testing, and that the fear of delaying the start-up of the reactor contributed to the decision to forgo such inspection. Significantly, the report concluded: The decision by [Hartford] management to agree to the "accept as is” disposition of NCR 5609 may have been influenced by discussions between [Hartford] management and TVA personnel, [Hartford] management's sensitivity to TVA’s needs and desires, and the apparent perceived concern by [Hartford] management personnel that the actions of their ANIs [inspectors] could jeopardize their contract with TVA. The report also stated that ”[t]here is testimonial evidence to support that TVA, through [Hartford], attempted to discourage the site ANIs from talking to QTC and NSRS personnel.” Bressler was one of only three TVA officials referred tp in this portion of the report; the other two were Dorwin Etzler, who had prepared the “use as is” recommendation after consulting Bressler, and Walter Joest, an engineer in TVA’s Codes, Standards, and Materials Group. Bressler was the TVA official in charge of code compliance. As the dissent correctly notes, the final NRC report cannot be deemed probative of the reporters’ state of mind, as it was issued only after the article was published. (It is, however, pertinent to the falsity issue.) The draft of this report is properly considered in the actual malice inquiry in that Myers disclosed its conclusions to Fromson during the article’s preparation. . Although the notes taken during this fact-checking routine were lost before trial, plaintiff did not offer any evidence — such as testimony by the sources purportedly consulted during this process — -to show that such checking never occurred. . Bressler argues that Guity and Smith, major sources for the article, were obviously biased against TVA, having sued it for retaliatory discharge. However, these investigators’ success in their labor dispute bolsters the credibility of their claim that TVA thwarted their investigation into improper pressure exerted on Hartford inspectors. Further, the depositions of Mason and Kidd indicated to the reporters that Guity, considered one of TVA’s best investigators, was a credible source. Finally, as is evident from our decision in Perk v. The Reader's Digest Association, 931 F.2d 408, 411-12 (6th Cir.1991), reliance on hostile sources does not of itself necessarily constitute actual malice. 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_respond1_3_3	E	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "other agency, beginning with "F" thru "N"". Your task is to determine which specific federal government agency best describes this litigant. Costas TSIMOUNIS, Appellant, v. J. W. HOLLAND, District Director, Immigration and Naturalization Service. No. 11750. United States Court of Appeals Third Circuit. Argued Dec. 9, 1955. Decided Jan. 6, 1956. J. J. .Kilimnik, Philadelphia, Pa., for appellant. Eugene J. Bradley, Asst. U. S. Atty., Philadelphia, Pa., for appellee. Before McLAUGHLIN, KALODNER and HASTIE, Circuit Judges. PER CURIAM. Appellant, an alien seaman, filed a complaint in the district court seeking review of an order of the Department of Justice, Immigration and Naturalization Service, to deport him. A temporary restraining order was issued and the Government moved for summary judgment. The application for injunction and the Government’s motion were combined for hearing at which time appellant testified. Following that testimony his counsel advised the court he would "‘[r]est on the record as presented to the Immigration authorities plus what the plaintiff testified to today.” What actually took place was in effect a final hearing on the merits of appellant’s complaint. There is no contention that any other or further evidence should have been or could have been presented on behalf of the appellant. It is urged for appellant that he was illegally arrested and subjected to illegal search and seizure, that the deportation proceeding should have been conducted by a hearing examiner under the' Administrative Procedure Act, 5 U.S.C.A. § 1001 et seq. and that the deportation order was not based upon reasonable, substantial and probative evidence. The deportation proceedings were properly heard before a Special Inquiry Officer. Section 242(b) Immigration and Nationality Act, 8 U.S.C.A. § 1252(b); 8 U.S.C.A. § 1101(b); 8 .C.F.R. § 9.1(b). And see Marcello v. Bonds, 1955, 349 U.S. 302, 75 S.Ct. 757. The record is clear that, as found by the district court, there was no illegal arrest or illegal search and seizure. In the situation, under 8 U.S.C.A. § 1357(a) (1, 2) the patrol inspectors were entitled to interrogate appellant and to arrest him in the reasonable belief he was in this country illegally. Appellant himself testified that the documents now asserted to have been illegally seized from him were given by him voluntarily to the inspectors. They consisted of appellant’s passport and a personal letter. The proofs are conclusive that appellant is in this country without an unexpired immigration visa and had the intention of staying as long as he could. He is here illegally. 8 U.S.C.A. § 1181 (a). The judgment of the district court will be affirmed. . 1955, 132 F.Supp. 754. Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "other agency, beginning with "F" thru "N"". Which specific federal government agency best describes this litigant? A. Food & Drug Administration B. General Services Administration C. Government Accounting Office (GAO) D. Health Care Financing Administration E. Immigration & Naturalization Service (includes border patrol) F. Internal Revenue Service (IRS) G. Interstate Commerce Commission H. Merit Systems Protection Board I. National Credit Union Association J. National Labor Relations Board K. Nuclear Regulatory Commission Answer:
sc_issuearea	B	What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states. SALAZAR, SECRETARY OF THE INTERIOR, et al. v. RAMAH NAVAJO CHAPTER et al. No. 11-551. Argued April 18, 2012 Decided June 18, 2012 Sotomayor, J., delivered the opinion of the Court, in which Scalia, Kennedy, Thomas, and Kagan, JJ., joined. Roberts, C. J., filed a dissenting opinion, in which Ginsburg, Breyer, and Alito, JJ., joined, post, p. 201. Mark R. Freeman argued the cause for petitioners. With him on the briefs were Solicitor General Verrilli, Assistant Attorney General West, Deputy Solicitor General Knee-dler, Barbara C. Biddle, John S. Koppel, Patrice H. Kunesh, Michael J. Berrigan, Jeffrey C. Nelson, and Sabrina A. McCarthy. Carter G. Phillips argued the 'cause for respondents. With him on the brief were Michael P. Gross, Jonathan F. Cohn, Matthew D. Krueger, C. Bryant Rogers, Lloyd B. Miller, Donald J. Simon, and Daniel H. MacMeekin. Briefs of amici curiae urging affirmance were filed for the Arctic Slope Native Association, Ltd., by Messrs. Miller, Simon, Phillips, Cohn, and Krueger; for the Chamber of Commerce of the United States of America et al. by Herbert L. Fenster, Robin S. Conrad, Kate Comerford Todd, David A. Churchill, and Matthew S. Heilman; and for the National Congress of American Indians et al. by Edward C. DuMont and Danielle Spinelli. Justice Sotomayor delivered the opinion of the Court. The Indian Self-Determination and Education Assistance Act (ISDA or Act), 25 U. S. C. § 450 et seq., directs the Secretary of the Interior to enter into contracts with willing tribes, pursuant to which those tribes will provide services such as education and law enforcement that otherwise would have been provided by the Federal Government. ISDA mandates that the Secretary shall pay the full amount of “contract support costs” incurred by tribes in performing their contracts. At issue in this case is whether the Government must pay those costs when Congress appropriates sufficient funds to pay in full any individual contractor’s contract support costs, but not enough funds to cover the aggregate amount due every contractor. Consistent with longstanding principles of Government contracting law, we hold that the Government must pay each tribe’s contract support costs in full. I A Congress enacted ISDA in 1975 in order to achieve “maximum Indian participation in the direction of educational as well as other Federal services to Indian communities so as to render such services more responsive to the needs and desires of those communities.” 25 U. S. C. § 450a(a). To that end, the Act directá the Secretary of the Interior, “upon the request of any Indian tribe..., to enter into a self-determination contract... to plan, conduct, and administer” health, education, economic, and social programs that the Secretary otherwise would have administered. § 450f(a)(1). As originally enacted, ISDA required the Government to provide contracting tribes with an amount of funds equivalent to those that the Secretary “would have otherwise provided for his direct operation of the programs.” § 106(h), 88 Stat. 2211. It soon became apparent that this secretarial amount failed to account for the full costs to tribes of providing services. Because of “concern with Government’s past failure adequately to reimburse tribes’ indirect administrative costs,” Cherokee Nation of Okla. v. Leavitt, 543 U. S. 631, 639 (2005), Congress amended ISDA to require the Secretary to contract to pay the “full amount” of “contract support costs” related to each self-determination contract, §§ 450j-1(a)(2), (g). The Act also provides, however, that “[Notwithstanding any other provision in [ISDA], the provision of funds under [ISDA] is subject to the availability of appropriations.” § 450j-1(b). Congress included a model contract in ISDA and directed that each tribal self-determination contract “shall... contain, or incorporate [it] by reference.” § 450l(a)(1). The model contract specifies that “‘[s]ubject to the availability of appropriations, the Secretary shall make available to the Contractor the total amount specified in the annual funding agreement’ ” between the Secretary and the tribe. § 450Z(c) (model agreement § 1(b)(4)). That amount “‘shall not be less than the applicable amount determined pursuant to [§450j-1(a)],’ ” which includes contract support costs. Ibid.; § 450j-l(a)(2). The contract indicates that “ ‘[e]ach provision of [ISDA] and each provision of this Contract shall be liberally construed for the benefit of the Contractor... § 450Z(c) (model agreement § 1(a)(2)). Finally, the Act makes clear that if the Government fails to pay the amount contracted for, then tribal contractors are entitled to pursue “money damages” in accordance with the Contract Disputes Act. § 450m-l(a). B During Fiscal Years (FYs) 1994 to 2001, respondent Tribes contracted with the Secretary of the Interior to provide services such as law enforcement, environmental protection, and agricultural assistance. The Tribes fully performed. During each FY, Congress appropriated a total amount to the Bureau of Indian Affairs (BIA) “for the operation of Indian programs.” See, e. g., Department of the Interior and Belated Agencies Appropriations Act, 2000,113 Stat. 1501A-148. Of that sum, Congress provided that “not to exceed [a particular amount] shall be available for payments to tribes and tribal organizations for contract support costs” under ISDA. E. g., ibid. Thus, in FY 2000, for example, Congress appropriated $1,670,444,000 to the BIA, of which “not to exceed $120,229,000” was allocated for contract support costs. Ibid. During each relevant FY, Congress appropriated sufficient funds to pay in full any individual tribal contractor’s contract support costs. Congress did not, however, appropriate sufficient funds to cover the contract support costs due all tribal contractors collectively. Between FYs 1994 and 2001, appropriations covered only between 77% and 92% of tribes’ aggregate contract support costs. The extent of the shortfall was not revealed until each FY was well underway, at which point a tribe’s performance of its contractual obligations was largely complete. See 644 F. 3d 1054, 1061 (CA10 2011). Lacking funds to pay each contractor in full, the Secretary paid tribes’ contract support costs on a uniform, pro rata basis. Tribes responded to these shortfalls by reducing ISDA services to tribal members, diverting tribal resources from non-ISDA programs, and forgoing opportunities to contract in furtherance of Congress’ self-determination objective. GAO, V. Rezendes, Indian Self-Determination Act: Shortfalls in Indian Contract Support Costs Need to Be Addressed 3-4 (GAO/RCED-99-150, 2009). Respondent Tribes sued for breach of contract pursuant to the Contract Disputes Act, 41 U. S. C. §§ 601-613, alleging that the Government failed to pay the full amount of contract support costs due from FYs 1994 through 2001, as required by ISDA and their contracts. The United States District Court for the District of New Mexico granted summary judgment for the Government. A divided panel of the United States Court of Appeals for the Tenth Circuit reversed. The court reasoned that Congress made sufficient appropriations “legally available” to fund any individual tribal contractor’s contract support costs, and that the Government’s contractual commitment was therefore binding. 644 F. 3d, at 1063-1065. In such cases, the Court of Appeals held that the Government is liable to each contractor for the full contract amount. Judge Hartz dissented, contending that Congress intended to set a maximum limit on the Government’s liability for contract support costs. We granted certiorari to resolve a split among the Courts of Appeals, 565 U. S. 1104 (2012), and now affirm. I—! A In evaluating the Government’s obligation to pay tribes for contract support costs, we do not write on a clean slate. Only seven years ago, in Cherokee Nation, we also considered the Government’s promise to pay contract support costs in ISDA self-determination contracts that made the Government’s obligation “subject to the availability of appropriations.” 543 U. S., at 634-637. For each FY at issue, Congress had appropriated to the Indian Health Service (IHS) a lump sum between $1,277 and $1,419 billion, “far more than the [contract support cost] amounts” due under the Tribes’ individual contracts. Id., at 637; see id., at 636 (Cherokee Nation and Shoshone-Paiute Tribes filed claims seeking $3.4 and $3.5 million, respectively). The Government contended, however, that Congress had appropriated inadequate funds to enable the IHS to pay the Tribes’ contract support costs in full, while meeting all of the agency’s competing fiscal priorities. As we explained, that did not excuse the Government’s responsibility to pay the Tribes. We stressed that the Government’s obligation to pay contract support costs should be treated as an ordinary contract promise, noting that ISDA “uses the word ‘contract’ 426 times to describe the nature of the Government’s promise.” Id., at 639. As even the Government conceded, “in the case of ordinary contracts... ‘if the amount of an unrestricted appropriation is sufficient to fund the contract, the contractor is entitled to payment even if the agency has allocated the funds to another purpose or assumes other obligations that exhaust the funds.’ ” Id., at 641. It followed, therefore, that absent “something special about the promises here at issue,” the Government was obligated to pay the Tribes’ contract support costs in full. Id., at 638. We held that the mere fact that ISDA self-determination contracts are made “subject to the availability of appropriations” did not warrant a special rule. Id., at 643 (internal quotation marks omitted). That commonplace provision, we explained, is ordinarily satisfied so long as Congress appropriates adequate legally unrestricted funds to pay the contracts at issue. See ibid. Because Congress made sufficient funds legally available to the agency to pay the Tribes’ contracts, it did not matter that the BIA had allocated some of those funds to serve other purposes, such that the remainder was insufficient to pay the Tribes in full. Rather, we agreed with the Tribes that “as long as Congress has appropriated sufficient legally unrestricted funds to pay the contracts at issue,” the Government’s promise to pay was binding. Id., at 637-638. Our conclusion in Cherokee Nation followed directly from well-established principles of Government contracting law. When a Government contractor is one of several persons to be paid out of a larger appropriation sufficient in itself to pay the contractor, it has long been the rule that the Government is responsible to the contractor for the full amount due under the contract, even if the agency exhausts the appropriation in service of other permissible ends. See Ferris v. United States, 27 Ct. Cl. 542, 546 (1892); Dougherty v. United States, 18 Ct. Cl. 496, 503 (1883); see also 2 GAO, Principles of Federal Appropriations Law, p. 6-17 (2d ed. 1992) (hereinafter GAO Redbook). That is so “even if an agency’s total lump-sum appropriation is insufficient to pay all the contracts the agency has made.” Cherokee Nation, 543 U. S., at 637. In such cases, “[t]he United States are as much bound by their contracts as are individuals.” Lynch v. United States, 292 U. S. 571, 580 (1934) (internal quotation marks omitted). Although the agency itself cannot disburse funds beyond those appropriated to it, the Government’s “valid obligations will remain enforceable in the courts.” GAO Redbook, p. 6-17. This principle safeguards both the expectations of Government contractors and the long-term fiscal interests of the United States. For contractors, the Ferris rule reflects that when “a contract is but one activity under a larger appropriation, it is not reasonable to expect the contractor to know how much of that appropriation remains available for it at any given time.” GAO Redbook, p. 6-18. Contractors are responsible for knowing the size of the pie, not how the agency elects to slice it. Thus, so long as Congress appropriates adequate funds to cover a prospective contract, contractors need not keep track of agencies’ shifting priorities and competing obligations; rather, they may trust that the Government will honor its contractual promises. Dougherty, 18 Ct. Cl., at 503. In such cases, if an agency over-commits its funds such that it cannot fulfill its contractual commitments, even the Government has acknowledged that “[t]he risk of over-obligation may be found to fall on the agency,” not the contractor. Brief for Federal Parties in Cherokee Nation v. Leavitt, O. T. 2004, No. 02-1472 etc., p. 24 (hereinafter Brief for Federal Parties). The rule likewise furthers “the Government’s own long-run interest as a reliable contracting partner in the myriad workaday transaction of its agencies.” United States v. Winstar Corp., 518 U. S. 839, 883 (1996) (plurality opinion). If the Government could be trusted to fulfill its promise to pay only when more pressing fiscal needs did not arise, would-be contractors would bargain warily—if at all—and only at a premium large enough to account for the risk of nonpayment. See, e. g., Logue, Tax Transitions, Opportunistic Retroactivity, and the Benefits of Government Precommitment, 94 Mich. L. Rev. 1129, 1146 (1996). In short, contracting would become more cumbersome and expensive for the Government, and willing partners more scarce. B The principles underlying Cherokee Nation and Ferris dictate the result in this case. Once “Congress has appropriated sufficient legally unrestricted funds to pay the contracts at issue, the Government normally cannot back out of a promise to pay on grounds of ‘insufficient appropriations,’ even if the contract uses language such as ‘subject to the availability of appropriations,’ and even if an agency’s total lump-sum appropriation is insufficient to pay all the contracts the agency has made.” Cherokee Nation, 543 U. S., at 637; see also id., at 638 (“[T]he Government denies none of this”). That condition is satisfied here. In each FY between 1994 and 2001, Congress appropriated to the BIA a lump sum from which “not to exceed” between $91 and $125 million was allocated for contract support costs, an amount that exceeded the sum due any tribal contractor. Within those constraints, the ability to direct those funds was “ ‘committed to agency discretion by law.’” Lincoln v. Vigil, 508 U. S. 182, 193 (1993) (quoting 5 U. S. C. § 701(a)(2)). Nothing, for instance, prevented the BIA from paying in full respondent Ramah Navajo Chapter’s contract support costs rather than other tribes’, whether based on its greater need or simply because it sought payment first. See International Union, United Auto., Aerospace & Agricultural Implement Work ers of Am. v. Donovan, 746 F. 2d 855, 861 (CADC 1984) (Scalia, J.) (“A lump-sum appropriation leaves it to the recipient agency (as a matter of law, at least) to distribute the funds among some or all of the permissible objects as it sees fit”). And if there was any doubt that that general rule applied here, ISDA’s statutory language itself makes clear that the BIA may allocate funds to one tribe at the expense of another. See § 450j-1(b) (“[T]he Secretary is not required to reduce funding for programs, projects, or activities serving a tribe to make funds available to another tribe or tribal organization under this [Act]”). The upshot is that the funds appropriated by Congress were legally available to pay any individual tribal contractor in full. See 1 GAO Redbook, p. 4-6 (3d ed. 2004). The Government’s contractual promise to pay each tribal contractor the “full amount of funds to which the contractor [was] entitled,” § 450j-l(g), was therefore binding. We have expressly rejected the Government’s argument that “the tribe should bear the risk that a total lump-sum appropriation (though sufficient to cover its own contracts) will not prove sufficient to pay all similar contracts.” Cherokee Nation, 543 U. S., at 638. Rather, the tribal contractors were entitled to rely on the Government’s promise to pay because they were “not chargeable with knowledge” of the BIA’s administration of Congress’ appropriation, “nor [could their] legal rights be affected or impaired by its maladministration or by its diversion.” Ferris, 27 Ct. Cl., at 546. As in Cherokee Nation, we decline the Government’s invitation to ascribe “special, rather than ordinary,” meaning to the fact that ISDA makes contracts “subject to the availability of appropriations.” 543 U. S., at 644. Under our previous interpretation of that language, that condition was satisfied here because Congress appropriated adequate funds to pay in full any individual contractor. It is important to afford that language a “uniform interpretation” in this and comparable statutes, “lest legal uncertainty undermine contractors’ confidence that they will be paid, and in turn increase the cost to the Government of purchasing goods and services.” Ibid. It would be particularly anomalous to read the statutory language differently here. Contracts made under ISDA specify that “ ‘[e]ach provision of [ISDA] and each provision of this Contract shall be liberally construed for the benefit of the Contractor....’” § 450l(c) (model agreement § 1(a)(2)). The Government, in effect, must demonstrate that its reading is clearly required by the statutory language. Accordingly, the Government cannot back out of its contractual promise to pay each Tribe’s full contract support costs. Ill A The Government primarily seeks to distinguish this case from Cherokee Nation and Ferris on the ground that Congress here appropriated “not to exceed” a given amount for contract support costs, thereby imposing an express cap on the total funds available. See Brief for Petitioners 26, 49. The Government argues, on this basis, that Ferris and Cherokee Nation involved “contracts made against the backdrop of unrestricted, lump-sum appropriations,” while this case does not. See Brief for Petitioners 49, 26. That premise, however, is inaccurate. In Ferris, Congress appropriated “[f]or improving Delaware River below Bridesburg, Pennsylvania, forty-five thousand dollars.” 20 Stat. 364. As explained in the Government’s own appropriations law handbook, the “not to exceed” language at issue in this case has an identical meaning to the quoted language in Ferris. See GAO Redbook, p. 6-5 (“Words like ‘not to exceed’ are not the only way to establish a maximum limitation. If the appropriation includes a specific amount for a particular object (such as ‘For Cuban cigars, $100’), then the appropriation is a maximum which may not be exceeded”). The appropriation in Cherokee Nation took a similar form. See, e. g., 108 Stat. 2527-2528 (“For expenses necessary to carry out... [ISDA and certain other enumerated Acts], $1,713,052,000”). There is no basis, therefore, for distinguishing the class of appropriation in those cases from this one. In each case, the agency remained free to allocate funds among multiple contractors, so long as the contracts served the purpose Congress identified. This result does not leave the “not to exceed” language in Congress’ appropriation without legal effect. To the contrary, it prevents the Secretary from reprogramming other funds to pay contract support costs—thereby protecting funds that Congress envisioned for other BIA programs, including tribes that choose not to enter ISDA contracts. But when an agency makes competing contractual commitments with legally available funds and then fails to pay, it is the Government that must bear the fiscal consequences, not the contractor. B The dissent attempts to distinguish this case from Cherokee Nation and Ferris on different grounds, relying on §450j-l(b)’s proviso that “the Secretary is not required to reduce funding for programs, projects, or activities serving a tribe to make funds available to another tribe.” In the dissent’s view, that clause establishes that each dollar allocated by the Secretary reduces the amount of appropriations legally available to pay other contractors. In effect, the dissent understands § 450j-l(b) to make the legal availability of appropriations turn on the Secretary’s expenditures rather than the sum allocated by Congress. That interpretation, which is inconsistent with ordinary principles of Government contracting law, is improbable. We have explained that Congress ordinarily controls the availability of appropriations; the agency controls whether to make funds from that appropriation available to pay a contractor. See Cherokee Nation, 543 U. S., at 642-643. The agency’s allocation choices do not affect the Government’s liability in the event of an underpayment. See id., at 641 (when an “‘unrestricted appropriation is sufficient to fund the contract, the contractor is entitled to payment even if the agency has allocated the funds to another purpose’ ”). In Cherokee Nation, we found those ordinary principles generally applicable to ISDA. See id., at 637-646. We also found no evidence that Congress intended that “the tribe should bear the risk that a total lump-sum appropriation (though sufficient to cover its own contracts) will not prove sufficient to pay all similar contracts.” Id., at 638 (citing Brief for Federal Parties 23-25). The dissent’s reading, by contrast, would impose precisely that regime. See post, at 204-206. The better reading of §450j-l(b) accords with ordinary Government contracting principles. As we explained, supra, at 190-192, the clause underscores the Secretary’s discretion to allocate funds among tribes, but does not alter the Government’s legal obligation when the agency fails to pay. That reading gives full effect to the clause’s text, which addresses the “amount of funds provided,” and specifies that the Secretary is not required to reduce funding for one tribe to make “funds available” to another. 450j-l(b). Indeed, even the Government acknowledges the clause governs the Secretary’s discretion to distribute funds. See Brief for Petitioners 52 (pursuant to § 450j-l(b), the Secretary was not obligated to pay tribes’ “contract support costs on a first-come, first-served basis, but had the authority to distribute the available money among all tribal contractors in an equitable fashion”). At minimum, the fact that we, the court below, the Government, and the Tribes do not share the dissent’s reading of § 450j-1(b) is strong evidence that its interpretation is not, as it claims, “unambiguous[ly]” correct. Post, at 207 (opinion of Roberts, C. J.). Because ISDA is construed in favor of tribes, that conclusion is fatal to the dissent. C The remaining counterarguments are unpersuasive. First, the Government suggests that today’s holding could cause the Secretary to violate the Anti-Deficiency Act, which prevents federal officers from “mak[ing] or authorizing] an expenditure or obligation exceeding an amount available in an appropriation.” 31 U. S. C. § 1341(a)(1)(A). But a predecessor version of that Act was in place when Ferris and Dou-gherty were decided, see GAO Redbook, pp. 6-9 to 6-10, and the Government did not prevail there. As Dougherty explained, the Anti-Deficiency Act’s requirements “apply to the official, but they do not affect the rights in this court of the citizen honestly contracting with the Government.” 18 Ct. Cl., at 503; see also Ferris, 27 Ct. Cl., at 546 (“An appropriation per se merely imposes limitations upon the Government’s own agents;... but its insufficiency does not pay the Government’s debts, nor cancel its obligations”). Second, the Government argues that Congress could not have intended for respondents to recover from the Judgment Fund, 31 U. S. C. § 1304, because that would allow the Tribes to circumvent Congress’ intent to cap total expenditures for contract support costs. That contention is puzzling. Congress expressly provided in ISDA that tribal contractors were entitled to sue for “money damages” under the Contract Disputes Act upon the Government’s failure to pay, 25 U. S. C. §§ 450m-1(a), (d), and judgments against the Government under that Act are payable from the Judgment Fund, 41 U. S. C. § 7108(a) (2006 ed., Supp. IV). Indeed, we cited the Contract Disputes Act, Judgment Fund, and Anti-Deficiency Act in Cherokee Nation, explaining that if the Government commits its appropriations in a manner that leaves contractual obligations unfulfilled, “the contractor [is] free to pursue appropriate legal remedies arising because the Government broke its contractual promise.” 543 U. S., at 642. Third, the Government invokes cases in which courts have rejected contractors’ attempts to recover for amounts beyond the maximum appropriated by Congress for a particular purpose. See, e. g., Sutton v. United States, 256 U. S. 575 (1921). In Sutton, for instance, Congress made a specific line-item appropriation of $23,000 for the completion of a particular project. Id., at 577. We held that the sole contractor engaged to complete that project could not recover more than that amount for his work. The Ferris and Sutton lines of cases are distinguishable, however. GAO Redbook, p. 6-18. “[I]t is settled that contractors paid from a general appropriation are not barred from recovering for breach of contract even though the appropriation is exhausted,” but that “under a specific line-item appropriation, the answer is different.” Ibid. The different results “follo[w] logically from the old maxim that ignorance of the law is no excuse.” Ibid. “If Congress appropriates a specific dollar amount for a particular contract, that amount is specified in the appropriation act and the contractor is deemed to know it.” Ibid. This ease is far different. Hundreds of tribes entered into thousands of independent contracts, each for amounts well within the lump sum appropriated by Congress to pay contract support costs. Here, where each Tribe’s “contract is but one activity under a larger appropriation, it is not reasonable to expect [each] contractor to know how much of that appropriation remain[ed] available for it at any given time.” Ibid.; see also Ferris, 27 Ct. Cl., at 546. Finally, the Government argues that legislative history suggests that Congress approved of the distribution of available funds on a uniform, pro rata basis. But “a fundamental principle of appropriations law is that where Congress merely appropriates lump-sum amounts without statutorily restricting what can be done with those funds, a clear inference arises that it does not intend to impose legally binding restrictions.” Lincoln, 508 U. S., at 192 (internal quotation marks omitted). “[I]ndicia in committee reports and other legislative history as to how the funds should or are expected to be spent do not establish any legal requirements on the agency.” Ibid, (internal quotation marks omitted). An agency’s discretion to spend appropriated funds is cabined only by the “text of the appropriation,” not by Congress’ expectations of how the funds will be spent, as might be reflected by legislative history. International Union, UAW, 746 F. 2d, at 860-861. That principle also reflects the same ideas underlying Ferris. If a contractor’s right to payment varied based on a future court’s uncertain interpretation of legislative history, it would increase the Government’s cost of contracting. Cf. Cherokee Nation, 543 U. S., at 644. That long-run expense would likely far exceed whatever money might be saved in any individual case. > hH As the Government points out, the state of affairs resulting in this case is the product of two congressional decisions which the BIA has found difficult to reconcile. On the one hand, Congress obligated the Secretary to accept every qualifying ISDA contract, which includes a promise of “full” funding for all contract support costs. On the other, Congress appropriated insufficient funds to pay in full each tribal contractor. The Government’s frustration is understandable, but the dilemma’s resolution is the responsibility of Congress. Congress is not short of options. For instance, it could reduce the Government’s financial obligation by amending ISDA to remove the statutory mandate compelling the BIA to enter into self-determination contracts, or by giving the BIA flexibility to pay less than the full amount of contract support costs. It could also pass a moratorium on the formation of new self-determination contracts, as it has done before. See § 328, 112 Stat. 2681-291 to 2681-292. Or Congress could elect to make line-item appropriations, allocating funds to cover tribes’ contract support costs on a contractor-by-contractor basis. On the other hand, Congress could appropriate sufficient funds to the BIA to meet the tribes’ total contract support cost needs. Indeed, there is some evidence that Congress may do just that. See H. R. Rep. No. 112-151, p. 42 (2011) (“The Committee believes that the Bureau should pay all contract support costs for which it has contractually agreed and directs the Bureau to include the full cost of the contract support obligations in its fiscal year 2013 budget submission”). The desirability of these options is not for us to say. We make clear only that Congress has ample means at hand to resolve the situation underlying the Tribes’ suit. Any one of the options above could also promote transparency about the Government’s fiscal obligations with respect to ISDA’s directive that contract support costs be paid in full. For the period in question, however, it is the Government—not the Tribes—that must bear the consequences of Congress’ decision to mandate that the Government enter into binding contracts for which its appropriation was sufficient to pay any individual tribal contractor, but “insufficient to pay all the contracts the agency has made.” Cherokee Nation, 543 U. S., at 637. The judgment of the Court of Appeals is affirmed. It is so ordered. As defined by ISDA, contract support costs “shall consist of an amount for the reasonable costs for activities which must be carried on by a tribal organization as a contractor to ensure compliance with the terms of the contract and prudent management, but which... (A) normally are not carried on by the respective Secretary in his direct operation of the program; or (B) are provided by the Secretary in support of the contracted program from resources other than those under contract.” §450j-l(a)(2). Such costs include overhead administrative costs, as well as expenses such as federally mandated audits and liability insurance. See Cherokee Nation of Okla., 543 U. S., at 635. Compare 644 F. 3d 1054 (case below) with Arctic Slope Native Assn., Ltd. v. Sebelius, 629 F. 3d 1296 (CA Fed. 2010) (no liability to pay total contract support costs beyond cap in appropriations Act). In Ferris, for instance, Congress appropriated $45,000 for the improvement of the Delaware River below Bridesburg, Pennsylvania. Act of Mar. 3, 1879, ch. 181, 20 Stat. 364. The Government contracted with Ferris for $37,000 to dredge the river. Halfway through Ferris’ performance of his contract, the United States Army Corps of Engineers ran out of money to pay Ferris, having used $17,000 of the appropriation to pay for other improvements. Nonetheless, the Court of Claims found that Ferris could recover for the balance of his contract. As the court explained, the appropriation “merely impose[d] limitations upon the Government’s own agents;... its insufficiency [did] not pay the Government’s debts, nor cancel its obligations, nor defeat the rights of other parties.” 27 Ct. Cl., at 546; see also Dougherty, 18 Ct. Cl., at 503 (rejecting Government’s argument that a contractor could not recover upon similar facts because the “appropriation had, at the time of the purchase, been covered by other contracts”). Indeed, the IHS once allocated its appropriations for new ISDA contracts on a first-come, first-serve basis. See Dept, of Health and Human Services, Indian Self-Determination Memorandum No. 92-2, p. 4 (Feb. 27, 1992). The Government’s reliance on this statutory language is particularly curious because it suggests it is superfluous. See Brief for Petitioners 30-31 (it is “unnecessary” to specify that contracts are “subject to the availability of appropriations” (internal quotation marks omitted)); see also Reply Brief for Petitioners 7 (“[A]ll government contracts are contingent upon the appropriations provided by Congress”). The dissent’s view notwithstanding, it is beyond question that Congress appropriated sufficient unrestricted funds to pay any contractor in full. The dissent’s real argument is that §450j-1(b) reverses the applicability of the Ferris rule to ISDA, so that the Secretary’s allocation of funds to one contractor reduces the legal availability of fends to others. See post, at 204 (opinion of Roberts, C. J.) (“[T]hat the Secretary could have allocated the fends to [a] tribe is irrelevant. What matters is what the Secretary actually does, and once he allocates the fends to one tribe, they are not ‘available’ to another”). We are not persuaded that § 450j—1(b) was intended to enact that radical departure from ordinary Government contracting principles. Indeed, Congress has spoken clearly and directly when limiting the Government’s total contractual liability to an amount appropriated in similar schemes; that it did not do so here further counsels against the dissent’s reading. See, e. g., 25 U. S. C. § 2008( j)(2) (“If the total amount of funds necessary to provide grants to tribes... for a fiscal year exceeds the amount of fends appropriated..., the Secretary shall reduce the amount of each grant [pro rata]”). We have some doubt whether a Government employee would violate the Anti-Deficiency Act by obeying an express statutory command to enter a contract, as was the case here. But we need not decide the question, for this case concerns only the contractual rights of tribal contractors, not the consequences of entering into such contracts for agency employees. The Judgment Fund is a “permanent, indefinite appropriation” enacted by Congress to pay final judgments against the United States when, inter alia, “[pjayment may not legally be made from any other source of funds.” 31 CFR § 256.1(a)(4) (2011). For that reason, the Government’s reliance on Office of Personnel Management v. Richmond, 496 U. S. 414 (1990), is misplaced. In Richmond, we held that the Appropriations Clause does not permit plaintiffs to recover money for Government-caused injuries for which Congress “appropriated no money.” Id., at 424. Richmond, however, indicated that the Appropri 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_casesource	159	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. ELLIS v. DIXON et al., MEMBERS OF THE BOARD OF EDUCATION OF THE CITY OF YONKERS. No. 20. Argued October 18, 1954. Reargued April 20, 1955. Decided June 6, 1955. Emanuel Redfield argued the cause and filed the briefs for petitioner. J. Raymond Hannon argued the. cause for respondents. With him on the brief was John Preston Phillips. Daniel T. Scannell argued the cause for the City of New York, as amicus curiae, urging affirmance. With him on the briefs were Peter Campbell Brown, Seymour B. Quel and Helen R. Cassidy. Mr. Justice Harlan delivered the opinion of the Court. Upon reargument the Court has come to the conclusion that the writ of certiorari should be dismissed as improvidently granted. The New York Court of Appeals denied petitioner’s motion for leave to appeal without stating any ground for its decision. 306 N. Y. 981. In these circumstances we must ascertain whether that court’s decision “might” have rested on a nonfederal ground, for if it did we must decline to take jurisdiction. Stembridge v. Georgia, 343 U. S. 541, 547 (1952); see also Lynch v. New York ex rel. Pierson, 293 U. S. 52, 54 (1934). We approach the matter first by considering what the petitioner has alleged as a basis for the constitutional issues which he asks us to review on the merits. The constitutional questions involved are whether respondents, members of the Yonkers Board of Education, in refusing the use of any of the Yonkers public school buildings to the Yonkers Committee for Peace for a forum on “peace and war,” discriminated against the Committee, so as to deprive the Committee’s members of their rights of freedom of speech, assembly, and equal protection of the laws, under the First and Fourteenth Amendments. Petitioner concedes that a State may withhold its school facilities altogether from use by nonscholastic groups. It is implicit in this concession that petitioner also recognizes that a State may make reasonable classifications in determining the extent to which its schools shall be available for nonscholastic uses, and petitioner has not attacked on this score the classifications made by the applicable New York statute and respondents’ regulations. The question of whether the regulations are unconstitutionally vague was not raised below, and hence is not open here. Therefore the burden of petitioner’s grievance would seem to be that respondents have applied the statute and regulations to similar groups differently than they have to the Committee for Peace. And yet petitioner has failed to allege in his pleading, which upon respondents’ motion was dismissed prior to answer, that other organizations of a similar character to the Committee for Peace have been allowed use of the Yonkers schools. The allegations of that pleading simply are that unnamed and undescribed “organizations” have been allowed to use Yonkers school buildings in the past “for the purpose of public assembly and discussion.” Whether such organizations are in any way comparable to the Committee for Peace nowhere appears in the pleading. And what the practice of the Board of Education has been in permitting the nonscholastic use of school buildings is not shown. What has been alleged is entirely too amorphous to permit adjudication of the constitutional issues asserted. And we think the most reasonable inference from this record is that the Court of Appeals’ denial of petitioner’s motion for leave to appeal went on that ground, rather than on the ground, suggested on behalf of respondents, that in proceeding by way of leave to appeal rather than by an appeal as of right the petitioner had followed the wrong appellate route. This conclusion is fortified by two additional circumstances. If the Court of Appeals had considered the constitutional issues adequately presented, it presumably would have saved petitioner’s right to appeal as of right by putting its denial of leave to appeal on the ground that an appeal lay as of right. See N. Y. Civ. Prac. Act, § 592 (5) (a). Otherwise we would have to assume that the Court of Appeals desired to thwart review of the constitutional questions, an assumption wholly unjustified by this record. Furthermore, the decision of New York’s intermediate appellate court against the petitioner was because of the insufficiency of his pleading. If the insufficiency of petitioner’s pleading was the reason for the Court of Appeals’ denial of leave to appeal, the past decisions of this Court still leave room for argument as to whether we should dismiss for lack of jurisdiction because the state court’s decision rested on an adequate nonfederal ground. It is established law that this Court is not finally concluded by the state court’s determination as to the sufficiency of pleadings asserting a federal right. Some of the cases seem to suggest that the scope of our review is limited to determining whether the state court has by-passed the federal right under forms of local procedure, from which it would seem to follow that if we find that such is not the case we should dismiss for want of jurisdiction. Cf. American Railway Express Co. v. Levee, 263 U. S. 19, 21 (1923); Davis v. Wechsler, 263 U. S. 22, 24 (1923). There can be no suggestion of by-passing in this instance. Other cases, however, indicate that we should accept jurisdiction and decide the sufficiency of the pleadings de novo for ourselves. See Boyd v. Nebraska ex rel. Thayer, 143 U. S. 135, 180 (1892); Carter v. Texas, 177 U. S. 442, 447 (1900); First National Bank v. Anderson, 269 U. S. 341, 346 (1926); Brown v. Western Railway of Alabama, 338 U. S. 294, 296 (1949). In the present case, the route which we travel would make no difference in the result. Even if we were to look at the matter ourselves de novo, we could not on this vague and empty record decide the constitutional issues sought to be presented. This Court has often refused to decide constitutional questions on an inadequate record. See, e. g., International Brotherhood of Teamsters v. Denver Milk Producers, Inc., 334 U. S. 809 (1948); Rescue Army v. Municipal Court, 331 U. S. 549, 575-585 (1947); Aircraft & Diesel Equipment Corp. v. Hirsch, 331 U. S. 752, 762-763 (1947); Alabama State Federation of Labor v. McAdory, 325 U. S. 450 (1945). In the circumstances of this case, we prefer to rest our decision on the ground that we lack jurisdiction. For if we could not ourselves decide on this record the constitutional issues tendered, we consider that by the same token the New York Court of Appeals was entirely justified in refusing to pass on them, and that we should therefore regard its denial of leave to appeal as resting on an adequate nonfederal ground. See Vandalia R. Co. v. Indiana ex rel. South Bend, 207 U. S. 359 (1907); Brinkmeier v. Missouri P. R. Co., 224 U. S. 268 (1912). We conclude that the writ of certiorari must be dismissed as improvidently granted. Dismissed. The Chief Justice, Mr. Justice Black, Mr. Justice Douglas and Mr. Justice Clark dissent, believing that the allegations of the petition are sufficient to state a case of discrimination under the Equal Protection Clause. Certiorari was granted. 347 U. S. 926. The case was set for reargument both on the merits and as to the jurisdiction of this Court. 348 U. S. 881. The state statute, insofar as applicable here, allows each board of education to adopt reasonable regulations for the use of school property, when not in use for school purposes, for any of the following purposes: “For holding social, civic and recreational meetings and entertainments, and other uses pertaining to the welfare of the community . . . ,” “For meetings, entertainments and occasions where admission fees are charged, when the proceeds thereof are to be expended for an educational or charitable purpose . . .” and “For civic forums and community centers. . . .” N. Y. Education Law, § 414 (3), (4), (6). It is not clear whether this last use is restricted by subsequent language in the section so as to permit only such forums as are established by the board of education. The regulations adopted by respondents do not enlarge upon these classifications in the statute. After reciting the respondents' refusal to permit the Committee for Peace to use any of the Yonkers school buildings on two occasions in 1952, the petition goes on to allege: “14. That pursuant to Section 414 of the Education Law of the State of New York, the respondents, and/or their predecessors, as members of the Board of Education of the City of Yonkers, adopted regulations for the use of the schoolbouses, grounds or other property when not in use for school purposes in Yonkers, New York, whereby organizations at all times herein mentioned were and are permitted the use of the school buildings when not in use. “15. That at all times herein mentioned and at all times since the adoption of the aforesaid regulations, the school buildings, grounds and property of and in the City of Yonkers have on numerous occasions (whose number are best known to respondents and at such numerous times and occasions that the practice is an accepted practice) been permitted to be used pursuant to Section 414 of the Education Law by organizations for the purpose of public assembly and discussion. “16. That at no time herein mentioned did the respondents inform petitioner of the reason for the denial of his application, nor did they ask petitioner or his organization to fulfill any further requirements or conditions for permission to use by them of a school building in Yonkers, New York, for purposes of public assembly or discussion. “17. That by reason of the action of the respondents in failing to give a reason for its action whereas permission is freely granted to others applying, it is evident that the respondents are concealing a design to discriminate against petitioner and his said organization, for which discrimination there is no foundation in law or fact, and that the acts of respondents are arbitrary and unreasonable. “18. The action of respondents violates the right of petitioner and the constituent members of his organization of freedom of speech and assembly guaranteed by the Constitution of the United States and denies them the equal protection of the laws in violation of the Constitution of the United States.” It may be noted that in an affidavit in support of the motion for leave to appeal to the Court of Appeals, petitioner’s attorney sought to remedy this vital defect by including the assertion, “that other organizations similar to petitioner’s have obtained similar use” of the schools from the Yonkers Board of Education. But it does not appear that petitioner ever sought to amend his pleading in these respects. New York has two methods of appeal to the Court of Appeals— an appeal as of right and by leave to appeal. An appeal as of right lies, inter alia, where there is “directly involved the construction of the constitution of the state or of the United States N. Y. Const., Art. VI, §7(1); N. Y. Civ. Prac. Act, § 588 (1)(a). In all cases in which an appeal does not lie as of right, appeal is by leave of the Appellate Division or the Court of Appeals. N. Y. Const., Art. VI, § 7 (6); N. Y. Civ. Prac. Act, § 589. Had wrong appellate procedure been the reason for the Court of Appeals’ denial of leave to appeal, its decision would have rested on an adequate nonfederal ground, depriving this Court of jurisdiction. Cf. Parker v. Illinois, 333 U. S. 571 (1948); Central Union Telephone Co. v. City of Edwardsville, 269 U. S. 190 (1925). This section provides that when leave to appeal is denied “upon the ground that the appeal would lie as of right,” the appellant is automatically entitled to an additional 30 days after the denial to file an appeal as of right. The Court of Appeals has thus stated its ground of denial in many instances where leave to appeal was denied because an appeal lay as of right. See, e. g., In re Arbitration between E. Milius & Co. and Regal Shirt Corp., 305 N. Y. 562, 111 N. E. 2d 438 (1953); In re Brinn, 305 N. Y. 626, 111 N. E. 2d 738 (1953); In re Wuttke, 305 N. Y. 694, 112 N. E. 2d 777 (1953); In re Hecht, 305 N. Y. 800, 113 N. E. 2d 553 (1953); Auten v. Auten, 306 N. Y. 752, 118 N. E. 2d 110 (1954). In affirming the judgment of the court of first instance, the Appellate Division of the Supreme Court, Second Department, stated: “The proceeding was properly before the court. However, the petition does not allege facts which establish a clear legal right to the relief sought nor which establish that respondents failed to perform a duty enjoined by law.” 281 App. Div. 987, 120 N. Y. S. 2d 854. 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. 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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_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). UNITED STATES of America, Appellant, v. Torrance HENDERSON, Appellee. No. 82-2471. United States Court of Appeals, Eighth Circuit. Submitted June 17, 1983. Decided Oct. 26, 1983. Robert G. Ulrich, U.S. Atty., J. Whitfield Moody, Asst. U.S. Atty., Kansas City, Mo., for appellee. Ronald L. Hall, Asst. Federal Public Defender, W.D. Missouri, Kansas City, Mo., for appellant. Before BRIGHT, JOHN R. GIBSON and FAGG, Circuit Judges. JOHN R. GIBSON, Circuit Judge. Appellant Torrence Henderson was found guilty of participating in the armed robbery of the United Missouri Bank South in violation of 18 U.S.C. § 2113(a) and (d) (1982). He was sentenced to twenty-five years in prison. On appeal, he argues that the district court erred in denying his motion to suppress the in-court identification of him by witness Harold Shaffer which he claims was tainted by a suggestive pretrial photographic showup. We affirm. Three armed masked men robbed the United Missouri Bank South about 5:40 p.m. on June 25, 1982. At approximately 5:00 p.m. that afternoon, two black males approached Harold Shaffer in his car and offered him five dollars if he would jump-start their car. Shaffer agreed and the three departed in his car ostensibly to locate the disabled vehicle. After a short ride, Shaffer was forced out of the automobile at gunpoint and the two men drove off. The car was used in the bank robbery and later abandoned. Shaffer immediately reported the theft and described his assailants to the responding officer. He gave a second description at the police station two hours later. Following this second description, Shaffer looked at some mug books but was unable to make an identification. He next examined a photographic lineup containing five pictures, including one of Henderson. Again, no identification was made. Shaffer was then shown a single photograph of Henderson which he positively identified. Later that same evening, he identified Henderson for a second time in a lineup. Henderson filed a pretrial motion to suppress all identifications made by Shaffer, including the anticipated in-court identification. In denying the motion, the court did not determine the admissibility of Shaffer’s two out-of-court identifications of Henderson because the government had decided to rely exclusively on his anticipated in-court identification. In admitting the in-court identification, the court concluded that “[w]e cannot say as a matter of law that his anticipated in-court identification was tainted by the out-of-court identification procedures followed by the police.” The court also made it clear that both cross-examination of Shaffer and final argument would provide Henderson’s counsel with the opportunity to convince the jury that the accuracy of Shaffer’s in-court identification was suspect in light of the suggestive photographic showup. At trial, Shaffer identified Henderson as one of the persons involved in the theft of his car. On cross-examination, Henderson’s lawyer fully explored the circumstances surrounding the use of the photographic showup and the out-of-court identification. Due process challenges to convictions based on in-court identifications which follow a suggestive out-of-court confrontation are reviewed under a two-step test. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); United States v. Manko, 694 F.2d 1125 (8th Cir.), cert. denied, U.S. -, 103 S.Ct. 1224, 75 L.Ed.2d 460 (1983). The first step is to determine whether the challenged confrontation between the witness and the suspect was “impermissibly suggestive.” Simmons, 390 U.S. at 384, 88 S.Ct. at 971. If so, the second inquiry is whether, under the totality of the circumstances of the case, the suggestive confrontation created “a very substantial likelihood of irreparable misidentification.” Manson, 432 U.S. at 116, 97 S.Ct. at 2254. This test reflects the fact that not all impermissibly suggestive confrontations give rise to a very substantial likelihood of irreparable misidentification. Ruff v. Wyrick, 709 F.2d 1219 (8th Cir.1983) (per curiam); United States v. Love, 692 F.2d 1147 (8th Cir.1980). Those identifications which are reliable — where the witness’s perception of the suspect unaided by the suggestive confrontation provided a sufficient foundation for the identification — are admissible. Reliability is determined by examining the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself. Manson, 432 U.S. at 114, 97 S.Ct. at 2253 (citing Neil v. Biggers, 409 U.S. 188 at 199-200, 93 S.Ct. 375 at 382, 34 L.Ed.2d 401 (1972)). The first step is to determine if the photographic showup was impermissibly suggestive. While showups are “the most suggestive, and therefore the most objectionable method of pre-trial identification,” United States v. Cook, 464 F.2d 251, 253 (8th Cir.) (per curiam), cert. denied, 409 U.S. 1011, 93 S.Ct. 457, 34 L.Ed.2d 305 (1972), whether or not they are impermissibly suggestive depends on the circumstances surrounding their use. In the present case, the surrounding circumstances aggravated the inherent suggestiveness of the showup. Shaffer overheard police radio broadcasts which caused him to conclude that the persons who stole his car immediately used it to rob a bank. Once at the police station, he overheard that two women had acknowledged who the two suspects were. The police then told Shaffer that they were going to bring in the two suspects identified by the women and that he should remain at the station for a possible identification. Finally, Shaffer testified that the police asked him “was this one of the bank robbers, the man that took [your] car” when they presented Henderson’s picture to him for identification. Trial Record (I) at 89. Given these events, Shaffer could not help but expect that the photographs he was about to examine were of the named bank robbery suspects, which he had already concluded were the same persons who stole his car. Combined with the showup’s intrinsic suggestiveness, these events created an impermissibly suggestive confrontation. Simmons, supra; Styers v. Smith, 659 F.2d 293 (2d Cir.1981). Despite the impermissibly suggestive showup, however, we conclude that Shaffer’s in-court identification of Henderson was reliable. First, Shaffer had ample opportunity to view Henderson. Shaffer spoke with him and his companion face to face for one or two minutes prior to entering the car. Once in the car, Shaffer and Henderson were together in the front seat for five to ten minutes. Shaffer was wearing his glasses. It was five o’clock in the afternoon, thus providing adequate lighting, and Henderson did not conceal his features in any manner. Second, Shaffer focused at least a normal degree of attention on Henderson during this time. Shaffer was not a bystander or casual observer. Moreover, because he was unaware of Henderson’s criminal intent until the very end of their journey, his perceptions were not “clouded by the excitement of the [crime].” Hadley, 671 F.2d at 1115. Third, Shaffer’s descriptions of Henderson were sufficiently accurate. He overestimated Henderson’s height by 2-4 inches, his weight by 25-35 pounds, and underestimated his age by 4-8 years. We do not consider these deviations substantial. Shaffer did fail to mention Henderson’s moustache and beard in both descriptions to the police. While this is a significant omission, it is not weighty enough to undercut the overall reliability of Shaffer’s identification. Fourth, all three of Shaffer’s identifications of Henderson— the showup, the lineup and in court — were certain and without mistake. Fifth, only hours separated the theft of the automobile and the showup. This short span of time decreases the likelihood that the witness is remembering the “person in the photograph more readily than the appearance of the person who committed the crime.” United States v. Dailey, 524 F.2d 911, 914 (8th Cir.1975) (photograph shown to witness a month and a half after the crime). Appellant claims that the district court’s statement that a motion to suppress the out-of-court identification alone “would likely have been granted” necessarily implies that the district court believed that the out-of-court identification was unreliable, i.e., it resulted from an impermissibly suggestive confrontation which created a very substantial likelihood of irreparable misidentification. From this conclusion, appellant argues that the subsequent in-court identification must also be suppressed because it was the product of an inadmissible identification and cannot be any more reliable than it. By admitting the in-court identification, appellant claims that the district court misapplied the Manson standard. We do not agree with appellant’s reading of the district court’s order. The court’s ruling was based on the government’s commitment to rely solely on the in-court identification, and the statement cited by the appellant, read in this light, is dictum. Second, in spite of its language, the district court did not conclude that the out-of-court identification created a very substantial likelihood of irreparable misidentification. The statement contains no findings that the out-of-court identification was unreliable, but was only an expression of the court’s inclination which was not fully developed. We cannot conclude that such a statement is a bar to the testimony of Shaffer in open court which identified Henderson. The evidence was for the jury to weigh. In balancing the reliability of the in-court identification with the “corrupting effect” of the photographic showup, we conclude that the witness possessed a foundation for the identification independent of the suggestiveness of the photographic showup. The conviction is affirmed. . The Honorable Joseph E. Stevens, Jr., United States District Judge for the Western District of Missouri. . A showup occurs when “a single person is presented as a suspect to a viewing eyewitness.” United States v. Sanders, 547 F.2d 1037, 1040 (8th Cir.1976), cert. denied, 431 U.S. 956, 97 S.Ct. 2679, 53 L.Ed.2d 273 (1977). . The Honorable John W. Oliver, Senior United States District Judge for the Western District of Missouri. . A showup may be justified if the witness’s health prevents his or her participation in a lineup, Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), or if the police cannot arrange a lineup because they cannot locate persons sufficiently resembling the suspect, Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). Conversely, using the suspect’s photograph to refresh a witness’s memory immediately prior to an in-court identification is impermissibly suggestive, Ruff v. Wyrick, 709 F.2d 1219 (8th Cir.1983) (per curiam); United States v. Dailey, 524 F.2d 911 (8th Cir.1975), as may be a showup motivated by “bad faith or excessive zeal.” United States v. Hadley, 671 F.2d 1112, 1115 n. 2 (8th Cir. 1982). The need for quick and efficient police investigations and arrests, Sanders v. Wyrick, 640 F.2d 186 (8th Cir. 1981) (per curiam), and the desire to release persons mistakenly apprehended, Allen v. Estelle, 568 F.2d 1108 (5th Cir. 1978), may offer some justification for a showup. . Shaffer admitted that he “wasn’t paying particular attention” to Henderson as they stood outside the car and that he “just didn’t see any reason to be observant.” Supp.H. Record at 58. Henderson also claims that Shaffer’s preoccupation with driving the car necessarily implies that he focused only minimal attention on him. We are satisfied, however, that while these considerations may refute any heightened sensibility of Shaffer as to the surrounding events, he retained a normal degree of attention adequate to establish a basis for a reliable identification. 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_indict	A	What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule that the indictment was defective?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless". William McKinley STEGALL, Appellant, v. UNITED STATES of America, Appellee. No. 11210. United States Court of Appeals Sixth Circuit. March 6, 1951. Leon Wolf, Cincinnati, Ohio, for appellant. David C. Walls, Charles F. Wood, and Norris W. Reigler, all of Louisville, Ky., for appellee. Before HICKS, Chief Judge, and ALLEN and MILLER, Circuit Judges. PER CURIAM. This case came on to 'be heard on the record and briefs, and oral argument of counsel. And it appearing that the Government concedes that count 1 of the indictment is duplicitous; And it appearing that no demurrer to the indictment was filed, nor objection thereto made prior to the verdict, and that the accused thus waived any right to complain because of the duplicity existing in count 1; Beauchamp v. United States, 6 Cir., 154 F.2d 413, certiorari denied, 329 U.S. 723, 67 S.Ct. 66, 91 L.Ed. 626, rehearing denied, 329 U.S. 826, 67 S.Ct. 183, 91 L.Ed. 702; Sparks v. United States, 6 Cir., 90 F.2d 61, 63; And it appearing that the material allegations of both counts of the indictment were proved by convincing and undisputed evidence ; And it appearing that the court sentenced the accused under count 2 of the indictment and that no sentence was imposed under count 1; And it appearing that no error prejudicial to the accused is presented in the record or in the charge of the trial court (Cf. Sparks v. United States, supra): It is ordered that the judgment be, and it hereby is, affirmed. Question: Did the court rule that the indictment was defective? A. No B. Yes C. Yes, but error was harmless D. Mixed answer E. Issue not discussed 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. Aric CARNEGIA, Plaintiff-Appellant, v. GEORGIA HIGHER EDUCATION ASSISTANCE CORPORATION, Defendant-Appellee. No. 80-9001 Non-Argument Calendar. United States Court of Appeals, Eleventh Circuit. Nov. 8, 1982. Marilyn S. Bright, Atlanta, Ga., for plaintiff-appellant. Karen Fagin White, Macey & Zusmann, Atlanta, Ga., for defendant-appellee. Before HILL, KRAVITCH and HENDERSON, Circuit Judges. PER CURIAM: Appellant seeks to discharge, through bankruptcy proceedings, an indebtedness resulting from a student loan. The bank handling the loan, Adel Banking Co. filed a timely proof of claim. The claim subsequently was transferred to appellee Georgia Higher Education Assistance Corp. (GHEAC). Pursuant to Bankruptcy Rule 302(d), the bankruptcy court approved the transfer to GHEAC. The bankruptcy court also entered an order holding appellant’s student loan to be dischargeable. On appeal, the district court, 6 B.R. 1011, reversed the bankruptcy court’s ruling that the loan was dischargeable but affirmed approval of the transfer from Adel to GHEAC. We affirm both actions of the district court. Appellant’s argument that his student loan is dischargeable fails under the decision of the former Fifth Circuit in In re Williamson, 665 F.2d 683 (5th Cir. 1982) (Unit B). Similarly unavailing is appellant’s charge that the bankruptcy court abused its discretion in approving the transfer of claim from Adel to GHEAC. Although GHEAC’s proof of claim did not become official until after the applicable time period had elapsed, this filing did not create a new claim. Rather, it constituted a substitution of parties with no change in the nature of the claim against appellant. Accordingly, GHEAC’s filing related back in time to the original filing by Adel and therefore was not untimely. See Fed.R.Civ.P. 15(c); Fidelity & Deposit Co. v. Fitzgerald, 272 F.2d 121, 129 (10th Cir. 1959), cert. denied, 362 U.S. 919, 80 S.Ct. 669, 4 L.Ed.2d 738 (1960); In re Whicker, 47 F.2d 106, 108 (5th Cir. 1931). See generally Advisory Committee’s Note to Bankruptcy Rule 302. In light of the circumstances giving rise to the tardy claim by GHEAC, we cannot say that the bankruptcy court abused its discretion in allowing the claim. Cf. Adams v. Evans, 642 F.2d 173 (5th Cir. 1981) (holding abuse of discretion as the standard of review for a bankruptcy court’s decision on whether to allow claims). Because the district court properly upheld this approval of transfer, its judgment is AFFIRMED. . Williamson is adopted as the law of this circuit. Stein v. Reynolds Securities, Inc., 667 F.2d 33, 34 (11th Cir. 1982). Question: What party initiated the appeal? A. Original plaintiff B. Original defendant C. Federal agency representing plaintiff D. Federal agency representing defendant E. Intervenor F. Not applicable G. Not ascertained Answer:
sc_petitioner	035	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. FOLEY v. CONNELIE, SUPERINTENDENT OF NEW YORK STATE POLICE, et al. No. 76-839. Argued November 8, 1977 Decided March 22, 1978 Burger, C. J., delivered the opinion of the Court, in which Stewart, White, Powell, and Rehnquist, JJ., joined. Stewart, J., filed a concurring opinion, post, p. 300. Blackmun, J., filed an opinion concurring in the result, post, p. 300. Marshall, J., filed a dissenting opinion, in which Brennan and Stevens, JJ., joined, post, p. 302. Stevens, J., filed a dissenting opinion, in which Brennan, J., joined, post, p. 307. Jonathan A. Weiss argued the cause for appellant. With him on the briefs was David S. Preminger. Judith A. Gordon, Assistant Attorney General of New York, argued the cause for appellees. With her on the brief were Louis J. Lefkowitz, Attorney General, and Samuel A. Hirshowitz, First Assistant Attorney General. Vilma S. Martinez and Morris J. Baller filed a brief for the Mexican American Legal Defense and Educational Fund, Inc., et al. as amici curiae urging reversal. Mr. Chief Justice Burger delivered the opinion of the Court. We noted probable jurisdiction in this case to consider whether a State may constitutionally limit the appointment of members of its police force to citizens of the United States. 430 U. S. 944 (1977). The appellant, Edmund Foley, is an alien eligible in due course to become a naturalized citizen, who is lawfully in this country as a permanent resident. He applied for appointment as a New York State trooper, a position which is filled on the basis of competitive examinations. Pursuant to a New York statute, N. Y. Exec. Law § 215 (3) (McKinney 1972), state authorities refused to allow Foley to take the examination. The statute provides: “No person shall be appointed to the New York state police force unless he shall be a citizen of the United States.” Appellant then brought this action in the United States District Court for the Southern District of New York, seeking a declaratory judgment that the State’s exclusion of aliens from its police force violates the Equal Protection Clause of the Fourteenth Amendment. After Foley was certified as representative of a class of those similarly situated, a three-judge District Court was convened to consider the merits of the claim. The District Court held the statute to be constitutional. 419 F. Supp. 889 (1976). We affirm. I The essential facts in this case are uncontroverted. New York Exec. Law § 215 ,(3) (McKinney 1972) prohibits appellant and his class from becoming state troopers. It is not disputed that the State has uniformly complied with this restriction since the statute was enacted in 1927. Under it, an alien who desires to compete for a position as a New York State trooper must relinquish his foreign citizenship and become an American citizen. Some members of the class, including appellant, are not currently eligible for American citizenship due to waiting periods imposed by congressional enactment. A trooper in New York is a member of the state police force, a law enforcement body which exercises broad police authority throughout the State. The powers of troopers are generally described in the relevant statutes as including those functions traditionally associated with a peace officer. Like most peace officers, they are charged with the prevention and detection of crime, the apprehension of suspected criminals, investigation of suspect conduct, execution of warrants and have powers of search, seizure and arrest without a formal warrant under limited circumstances. In the course of carrying out these responsibilities an officer is empowered by New York law to resort to lawful force, which may include the use of any weapon that he is required to carry while on duty. All troopers are on call 24 hours a day and are required to take appropriate action whenever criminal activity is observed. Perhaps the best shorthand description of the role of the New York State trooper was that advanced by the District Court: “State police are charged with the enforcement of the law, not in a private profession and for the benefit of themselves and their clients, but for the benefit of the people at large of the State of New York.” 419 F. Supp., at 896. II Appellant claims that the relevant New York statute violates his rights under the Equal Protection Clause. The decisions of this Court with regard to the rights of aliens living in our society have reflected fine, and often difficult, questions of values. As a Nation we exhibit extraordinary hospitality to those who come to our country, which is not surprising for we have often been described as “a nation of immigrants.” Indeed, aliens lawfully residing in this society have many rights which are accorded to noncitizens by few other countries. Our cases generally reflect a close scrutiny of restraints imposed by States on aliens. But we have never suggested that such legislation is inherently invalid, nor have we held that all limitations on aliens are suspect. See Sugarman v. Dougall, 413 U. S. 634, 648 (1973). Rather, beginning with a case which involved the denial of welfare assistance essential to life itself, the Court has treated certain restrictions on aliens with “heightened judicial solicitude,” Graham v. Richardson, 403 U. S. 365, 372 (1971), a treatment deemed necessary since aliens — pending their eligibility for citizenship — have no direct voice in the political processes. See United States v. Carolene Products Co., 304 U. S. 144, 152-153, n. 4 (1938). Following Graham, a series of decisions has resulted requiring state action to meet close scrutiny to exclude aliens as a class from educational benefits, Nyquist v. Mauclet, 432 U. S. 1 (1977); eligibility for a broad range of public employment, Sugarman v. Dougall, supra; or the practice of licensed professions, Examining Board v. Flores de Otero, 426 U. S. 572 (1976); In re Griffiths, 413 U. S. 717 (1973). These exclusions struck at the noncitizens’ ability to exist in the community, a position seemingly inconsistent with the congressional determination to admit the alien to permanent residence. See Graham, supra, at 377-378; Barrett, Judicial Supervision of Legislative Classifications — A More Modest Role For Equal Protection?, 1976 B. Y. U. L. Rev. 89, 101. It would be inappropriate, however, to require every statutory exclusion of aliens to clear the high hurdle of "strict scrutiny,” because to do so would “obliterate all the distinctions between citizens and aliens, and thus depreciate the historic values of citizenship.” Mauclet, supra, at 14 (Burger, C. J., dissenting). The act of becoming a citizen is more than a ritual with no content beyond the fanfare of ceremony. A new citizen has become a member of a Nation, part of a people distinct from others. Cf. Worcester v. Georgia, 6 Pet. 515, 559 (1832). The individual, at that point, belongs to the polity and is entitled to participate in the processes of democratic decisionmaking. Accordingly, we have recognized “a State’s historical power to exclude aliens from participation in its democratic political institutions,” Dougall, supra, at 648, as part of the sovereign’s obligation “ 'to preserve the basic conception of a political community.’ ” 413 U. S., at 647. The practical consequence of this theory is that ''our scrutiny will not be so demanding where we deal with matters firmly within a State’s constitutional prerogatives.” Dougall, supra, at 648. The State need only justify its classification by a showing of some rational relationship between the interest sought to be protected and the limiting classification. This is not intended to denigrate the valuable contribution of aliens who benefit from our traditional hospitality. It is no more than recognition of the fact that a democratic society is ruled by its people. Thus, it is clear that a State may deny aliens the right to vote, or to run for elective office, for these lie at the heart of our political institutions. See 413 U. S., at 647-649. Similar considerations support a legislative determination to exclude aliens from jury service. See Perkins v. Smith, 370 F. Supp. 134 (Md. 1974), aff’d, 426 U. S. 913 (1976). Likewise, we have recognized that citizenship may be a relevant qualification for fulfilling those ''important nonelective executive, legislative, and judicial positions,” held by “officers who participate directly in the formulation, execution, or review of broad public policy.” Dougall, supra, at 647. This is not because our society seeks to reserve the better jobs to its members. Rather, it is because this country entrusts many of its most important policy responsibilities to these officers, the discretionary exercise of which can often more immediately affect the lives of citizens than even the ballot of a voter or the choice of a legislator. In sum, then, it represents the choice, and right, of the people to be governed by their citizen peers. To effectuate this result, we must necessarily examine each position in question to determine whether it involves discretionary decisionmaking, or execution of policy, which substantially affects members of the political community. The essence of our holdings to date is that although we extend to aliens the right to education and public welfare, along with the ability to earn a livelihood and engage in licensed professions, the right to govern is reserved to citizens. Ill A discussion of the police function is essentially a description of one of the basic functions of government, especially in a complex modern society where police presence is pervasive. The police function fulfills a most fundamental obligation of government to its constituency. Police officers in the ranks do not formulate policy, per se, but they are clothed with authority to exercise an almost infinite variety of discretionary powers. The execution of the broad powers vested in them affects members of the public significantly and often in the most sensitive areas of daily life. Our Constitution, of course, provides safeguards to persons, homes and possessions, as well as guidance to police officers. And few countries, if any, provide more protection to individuals by limitations on the power and discretion of the police. Nonetheless, police may, in the exercise of their discretion, invade the privacy of an individual in public places, e. g., Terry v. Ohio, 392 U. S. 1 (1968). They may under some conditions break down a door to enter a dwelling or other building in the execution of a warrant, e. g., Miller v. United States, 357 U. S. 301 (1958), or without a formal warrant in very limited circumstances; they may stop vehicles traveling on public highways, e. g., Pennsylvania v. Mimms, 434 U. S. 106 (1977). An arrest, the function most commonly associated with the police, is a serious matter for any person even when no prosecution follows or when an acquittal is obtained. Most arrests are without prior judicial authority, as when an officer observes a criminal act in progress or suspects that felonious activity is afoot. Even the routine traffic arrests made by the state trooper — for speeding, weaving, reckless driving, improper license plates, absence of inspection stickers, or dangerous physical condition of a vehicle, to describe only a few of the more obvious common violations — can intrude on the privacy of the individual. In stopping cars, they may, within limits, require a driver or passengers to disembark and even search them for weapons, depending on time, place and circumstances. That this prophylactic authority is essential is attested by the number of police officers wounded or killed in the process of making inquiry in borderline, seemingly minor violation situations — for example, where the initial stop is made for a traffic offense but, unknown to the officer at the time, the vehicle occupants are armed and engaged in or embarked on serious criminal conduct. Clearly the exercise of police authority calls for a very high degree of judgment and discretion, the abuse or misuse of which can have serious impact on individuals. The office of a policeman is in no sense one of “the common occupations of the community” that the then Mr. Justice Hughes referred to in Truax v. Raich, 239 U. S. 33, 41 (1915). A policeman vested with the plenary discretionary powers we have described is not to be equated with a private person engaged in routine public employment or other “common occupations of the community” who exercises no broad power over people generally. Indeed, the rationale for the qualified immunity historically granted to the police rests on the difficult and delicate judgments these officers must often make. See Pierson v. Ray, 386 U. S. 547, 555-557 (1967); cf. Scheuer v. Rhodes, 416 U. S. 232, 245-246 (1974). In short, it would be as anomalous to conclude that citizens may be subjected to the broad discretionary powers of non-citizen police officers as it would be to say that judicial officers and jurors with power to judge citizens can be aliens. It is not surprising, therefore, that most States expressly confine the employment of police officers to citizens, whom the State may reasonably presume to be more familiar with and sympathetic to American traditions. Police officers very clearly fall within the category of “important nonelective . . . officers who participate directly in the . . . execution ... of broad public policy.” Dougall, 413 U. S., at 647 (emphasis added). In the enforcement and execution of the laws the police function is one where citizenship bears a rational relationship to the special demands of the particular position. A State may, therefore, consonant with the Constitution, confine the performance of this important public responsibility to citizens of the United States. Accordingly, the judgment of the District Court is Affirmed. We recognize that New York’s statute may effectively prevent some class members from .ever becoming troopers since state law limits eligibility for these positions to those between the age of 21 and 29 years. N. Y. Exec. Law §215 (3) (McKinney 1972). One indication of this attitude is Congress’ determination to malee it relatively easy for immigrants to become naturalized citizens. See 8 U. S. C. § 1427 (1976 ed.). The alien’s status is, at least for a time, beyond his control since Congress has imposed durational residency requirements for the attainment of citizenship. Federal law generally requires an alien to lawfully reside in this country for five years as a prerequisite to applying for naturalization. 8 U. S. C. § 1427 (a) (1976 ed.). In Mauclet, for example, New York State policy reflected a legislative judgment that higher education was “ ‘no longer ... a luxury; it is a necessity for strength, fulfillment and survival.’ ” 432 U. S., at 8 n. 9. This is not to say, of course, that a State may accomplish this end with a citizenship restriction that "sweeps indiscriminately,” Dougall, 413 U. S., at 643, without regard to the differences in the positions involved. See ABA Project on Standards for Criminal Justice, The Urban Police Function 119 (App. Draft 1973); National Advisory Commission on Criminal Justice Standards and Goals, Police 22-23 (1973); President’s Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society 10 (1967). After the event, some abuses of power may be subject to remedies by one showing injury. See Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971). And conclusive evidence of criminal conduct may be kept from the knowledge of a jury because of police error or misconduct. Twenty-four States besides New York specifically require United States citizenship as a prerequisite for becoming a member of a statewide law enforcement agency: see Ark. Stat. Ann. § 42-406 (1964); Cal. Govt. Code Ann. § 1031 (West Supp. 1978); Fla. Stat. Ann. § 943.13 (2) (West Supp. 1976); Ga. Code § 92A-214 (Supp. 1977); 111. Rev. Stat., ch. 121, §307.9 (1975); Ind. Rules & Regs., Tit. 10, Art. 1, ch. 1, §4-7 (1976); Iowa Code § 80.15 (1977); Kan. Stat. Ann. § 74r-2113 (c) (Supp. 1976); Ky. Rev. Stat. § 16.040 (2)(c) (1971); Mich. Comp. Laws §28.4 (1967); Miss. Code Ann. § 45-3-9 (Supp. 1977); Mo. Rev. Stat. § 43.060 (1969); Mont. Rev. Codes Ann. § 31-105 (3) (a) (v) (Supp. 1977); Nev. Rev. Stat. §281.060 (1) (1975); N. H. Rev. Stat. Ann. § 106-R:20 (Supp. 1975); N. J. Stat. Ann. §53:1-9 (West Supp. 1977); N. M. Stat. Ann. § 39-2-6 (1972); N. D. Cent. Code § 39-03-04 (4) (Supp. 1977); Ore. Rev. Stat. § 181.260 (1) (a) (1977); Pa. Stat. Ann., Tit. 71, § 1193 (Purdon 1962); R. I. Gen. Laws § 42-28-10 (1970); S. D. Comp. Laws Ann. §3-7-9 and §3-1-4 (1974); Tex. Rev. Civ. Stat. Am., Art. 4413 (9) (2) (Vernon 1976); Utah Code Ann. §27-11-11 (1976). Oklahoma requires its officers to be citizens of the State. See Okla. Stat., Tit. 47, § 2-105 (a) (Supp. 1976). Nine other States require American citizenship as part of a general requirement applicable to all types of state officers or employees: see Ala. Code, Tit. 36, § 2-1 (a) (1) (1977); Ariz. Rev. Stat. Ann. § 38-201 (1974); Haw. Rev. Stat. § 78-1 (1976); Idaho Code § 59-101 (1976) and Idaho Const., Art. 6, § 2; Me. Rev. Stat. Ann., Tit. 5, § 556 (Supp. 1977); Mass. Gen. Laws Ann., ch. 31, § 12 (West Supp. 1977); Ohio Rev. Code Ann. § 124.22 (1978); Tenn. Code Ann. §8-1801 (Supp. 1977); Vt. Stat. Ann., Tit. 3, § 262 (1972); W. Va. Const., Art. 4, § 4. Police powers in many countries are exercised in ways that we would find intolerable and indeed violative of constitutional rights. To taire only one example, a large number of nations do not share our belief in the freedom of movement and travel, requiring persons to carry identification cards at all times. This, inter alia, affords a rational basis for States to require that those entrusted with the execution of the laws be individuals who, even if not native Americans, have indicated acceptance and allegiance, to our Constitution by becoming citizens. Cf. McCarthy v. Philadelphia Civil Service Comm’n, 424 U. S. 645 (1976); Detroit Police Officers Assn. v. Detroit, 385 Mich. 519, 190 N. W. 2d 97 (1971), dismissed for want of substantial federal question, 405 U. S. 950 (1972). 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_numresp	4	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. Neal W. ROLAND, Plaintiff-Appellant, v. Perry JOHNSON; Thomas Phillips, Dale Foltz; and Bernie Toland, Defendants-Appellees. Nos. 86-1737, 86-1852. United States Court of Appeals, Sixth Circuit. Argued Aug. 27, 1987. Decided Sept. 9, 1988. Larry Bennett (argued) Butzel, Keidan, Simon, Myers & Graham, Marianne G. Talon, Detroit, Mich., for plaintiff-appellant. Eric J. Eggan, Asst. Atty. Gen., Brian MacKenzie (argued), Lansing, Mich., for defendants-appellees. Before JONES, WELLFORD and GUY, Circuit Judges. NATHANIEL R. JONES, Circuit Judge. The plaintiff-appellant, Neal Roland, appeals from the district court’s order granting summary judgment to the defendants-appellees. Roland also challenges the court’s award of costs to the defendants. For the following reasons, we find that the court erred in its grant of summary judgment. Thus we reverse and remand this case for further proceedings consistent with this opinion. In addition, the court’s award of costs to the defendants is vacated. I. The plaintiff-appellant, Neal Roland, is a prisoner at the State Prison of Southern Michigan (“SPSM”), located in Jackson, Michigan. He claims that on November 30, 1983 he was raped in his cell by prisoner Frankie Lee Weatherspoon while Daniel Perry, another SPSM prisoner, served as a lookout. The defendants-appellees are Perry Johnson, the Director of the Michigan Department of Corrections; Dale Foltz, the Warden of SPSM; Thomas Phillips, the Administrative Assistant to Warden Foltz; and Bernard Toland, the Director of Job Classifications for SPSM. Roland’s action, filed pursuant to 42 U.S.C. § 1983 (1982), alleges that the above defendants violated his eighth and fourteenth amendment rights by failing to provide him with adequate safety and protection and by allowing conditions to exist at the prison which resulted in his rape. Plaintiff sets forth, in his complaint, certain relevant factual allegations. Those allegations are reproduced below. Many of these allegations, however, are disputed by the defendants. Roland, at the time of the alleged rape, was in SPSM for the offense of breaking and entering. His complaint states that since he is a male with “youthful features” and a slight build, he was a likely target for homosexual predators in SPSM. He allegedly has no history of assaultive or violent behavior and was classified by SPSM as requiring only “medium” custody. In April 1983, he had been recommended for a transfer to the Muskegon Correction Facility; but the transfer had not occurred at the time of the alleged rape because of a medical problem. Roland’s alleged assailant, Frankie Lee Weatherspoon, is serving life without parole for murder, and the alleged lookout, Daniel Perry, is in prison for first degree criminal sexual conduct and armed robbery. Roland alleges that both Weather-spoon and Perry were known sexual predators and highly assaultive individuals. He further points out that both men were classified by the prison as requiring “close” (one level above “medium”) custody. At the time of the alleged rape, all three of these individuals — Roland, Weather-spoon, and Perry — were housed in 11 Block, an “honor block” in which residents are given more privileges, including more out of cell time, than in other cell blocks. To qualify for admission to 11 Block prior to August 1983, an inmate was required to refrain from major misconduct for twelve months and minor misconduct for six months. In August 1983, however, 11 Block was changed from a close custody prison block to a lower, medium custody level. While normally medium and close security inmates are not housed together, when 11 Block was changed in August 1983, certain close security inmates (including Weatherspoon and Perry) were allowed to remain, along with the medium custody prisoners. Within 11 Block, Perry and Weather-spoon were classified as “block help” or “porters.” This position gave them added mobility throughout the cell block, including the ability to get out of their cells before other inmates. Perry and Weather-spoon were further sub-classified as “breakmen” and were therefore able to walk up to each tier of 11 Block and operate the mechanical devices of that tier which open the cells of the other inmates. According to Roland, the breakman position was one of “high honor” and should not have been awarded to inmates like Weatherspoon and Perry who, as known sexual predators, were likely to abuse the privilege. Indeed, Roland claims that it is because Weatherspoon and Perry were accorded these positions that they were able to gain access to his cell on the fourth tier of the block. Further, Roland claims that it was this access which allowed Weather-spoon to rape him while Perry served as the lookout. To establish the liability of the defendants under section 1983, Roland attempts to show that they were “deliberately indifferent” to his safety, and that this indifference resulted in his rape. As to defendant-appellee Toland, Roland alleges that Toland manifested a deliberate indifference by refusing to reclassify and remove Weatherspoon and Perry from their job assignments as breakmen after being requested to do so by Richard Thrams, the Assistant Resident Unit Manager of 11 Block. Toland, as the Classification Director for SPSM, had the power and responsibility to assign and remove prisoners from their jobs. In making a decision relating to a job assignment, Toland was also to work in coordination with unit managers such as Thrams. Roland contends that the facts demonstrate that Thrams requested Toland to reclassify Weatherspoon and Perry because of investigative reports linking them to an ongoing homosexual pressure gang in 11 Block, and because of hearsay evidence that Weatherspoon and Perry were pressing other inmates in the block for sex. Roland contends that the evidence of Weatherspoon and Perry being homosexual predators is consistent with the evidence in their records, both in and out of prison. In his deposition, Toland acknowledges that sexual predators should not be block protecters. However, he argues that there was nothing in Weatherspoon’s file to indicate that he had predatory tendencies and that Perry’s file is irrelevant because Perry is not accused of assaulting Roland. Further, Toland argues that the record does not support Roland’s contention that To-land knew, at the time of the rape, that Weatherspoon and Perry were actively pressing other inmates for sex. Finally, Toland suggests that he did not reclassify Weatherspoon and Perry because there was no written documentation or disciplinary finding regarding their alleged behavior in 11 Block. Also, he points out that Thrams himself acknowledged that the information he gave to Toland was not sufficiently trustworthy to be reduced to writing. The basis of Roland’s allegations against defendant-appellaee Phillips, the Administrative Assistant to the Warden, is that his (Roland’s) mother, Mrs. Jean Berry, met with Phillips in the summer or fall of 1983 and notified him that her son was in danger of being assaulted by homosexual predators. Phillips denies meeting with Mrs. Berry or discussing any such matter, although he does acknowledge an August 24, 1983 phone conversation with Mrs. Berry regarding Roland’s transfer to the Muske-gon Correction Facility. Mrs. Berry, however, testified in her deposition that she showed Phillips a photograph of her son and told Phillips that some inmates were pressuring her son for sex. She testified that Phillips replied that if her son was not a homosexual, he had nothing to worry about. Roland also asserts that Phillips was aware of a November 1983 investigation which included allegations by certain inmates against Perry and Weatherspoon relating to sexual pressuring. Therefore, Roland concludes that Phillips had actual knowledge of the risk to him of an assault, yet took no action to protect him. This failure to act, according to Roland, manifested a deliberate indifference to his security needs. Finally, Roland asserts á deliberate indifference on the part of defendants-appel-lees Johnson (the Director of the Michigan Department of Corrections) and Foltz (the Warden of SPSM) to the existence of a pervasive and unreasonable risk of harm to individuals, like Roland, who fit the known profile of prison rape victims. These two defendants are responsible for the rules and policies affecting the operation of SPSM. According to Roland, they are liable for their failure to implement adequate policies which would have protected Roland and others like him in an atmosphere of unreasonable and pervasive sexual pressures. Roland also claims that their approval of, or acquiescence, in the policies on job classification and admission to 11 Block solidifies their liability. Further, Roland alleges that Johnson and Foltz failed to set up policies which would allow inmates like Weatherspoon and Perry to be screened out of the honor block based on general behavioral problems or reliable information from inmate sources, short of the need for an actual misconduct hearing and finding. Foltz and Johnson are also alleged to be responsible for a pervasive policy at SPSM which discourages reporting and prosecution of sexual assaults, since those who report that they have been assaulted are placed in protective custody which limits inmates in a manner similar to punitive detention. Finally, Roland claims that Foltz and Johnson were on notice that sexual assaults were a serious problem at SPSM but failed to issue a policy that would protect individuals likely to be victimized. To establish notice, Roland points to several reports that were available to Foltz and Johnson and which document the problems of physical and sexual assaults at SPSM as well as the existence of policies discouraging the reporting of such assaults. Defendants Foltz and Johnson counter Roland’s allegations by arguing that since Roland never told anyone that he had been threatened by Weatherspoon, they could not be aware that he might be in jeopardy. Furthermore, they assert that the policy of protective custody does not discourage the reporting of assaults, and that they have actively sought ways to eliminate violent activity at SPSM. Roland filed this lawsuit on November 16, 1984, in the United States District Court for the Eastern District of Michigan. After discovery began, the district court, on June 17, 1985, assigned the case to Magistrate Steven Pepe for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) (1982). Subsequent to that assignment, the court, on June 26, 1985, pursuant to 28 U.S.C. § 636(b)(2), entered an order instructing the magistrate to serve as a special master for the case and, upon the parties’ consent, conduct the trial. The parties consented to a trial before the magistrate with the express understanding that it would be a jury trial. Thereafter, discovery continued and was apparently completed when, on December 19,1985, the defendants moved for summary judgment. The magistrate conducted hearings on the defendants’ motion and, on June 12, 1986, in an 88-page opinion, recommended that the motion be denied and the case proceed to trial. In the magistrate’s view, there was sufficient evidence from which a jury could find that the defendants were deliberately indifferent to the safety needs of the plaintiff. Therefore, Magistrate Pepe felt summary judgment was an inappropriate resolution of this case. The defendants filed timely objections to the magistrate’s recommendation with the district court. On July 10, 1986, the district court, Judge LaPlata presiding, granted the defendants’ motion for summary judgment. In the court’s 2lk page order of dismissal, the magistrate’s report was neither mentioned nor discussed. In the court’s view, the plaintiff had, at most, only established that the defendants were negligent in permitting Weatherspoon and Perry to serve as block porters. Further, the court found that the record was devoid of any proof that prison authorities were aware of specific threats directed at Roland by his alleged assailants. Finally, in an order dated August 18, 1986, the district court awarded defendants their costs for deposition transcripts. This appeal, which was timely filed, challenges both of the district court’s orders. II. The first issue we address is plaintiff’s argument that the district court committed reversible error in not affording any weight to the report and recommendation of the magistrate. In Roland’s view, the magistrate’s recommendation that summary judgment was inappropriate should have been reviewed by the district court under the “clearly erroneous” standard, and therefore, the district court erred in reviewing the report de novo. For the following reasons, we find this argument to be without merit. The district court’s June 26, 1985 order, assigning this case to Magistrate Pepe, is set forth below: Pursuant to Tile [sic] 28 U.S.C. Section 636, IT IS HEREBY ORDERED that the above entitled cause is assigned to the docket of Magistrate Steven D. Pepe, United States Magistrate for all pretrial and appropriate hearings under 636(b)(1)(A) and (B). Magistrate Pepe is further appointed as special master under 636(b)(2) and Fed.R.Civ.P. 53 and upon consent of the parties, may try the matter at the earliest available date and thereafter file a report and recommendation with the district judge. J. App. at 133 (emphasis added). This order was issued subsequent to the court’s June 17, 1985 order assigning the case to Magistrate Pepe, pursuant to 28 U.S.C. § 636(b)(1)(B), for a report and recommendation. Thus, it appears that Magistrate Pepe received this case from the district court via two different referrals. The question is what standard of review should be applied by a district court when there has been a referral under both section 636(b)(1)(B) and 636(b)(2). 28 U.S.C. § 636 sets forth both the jurisdiction and powers of United States magistrates. A referral to a magistrate pursuant to 28 U.S.C. § 636(b)(1)(A) and (B) authorizes the magistrate to rule on both non-dispositive and dispositive pretrial motions. A referral pursuant to 28 U.S.C. § 636(b)(2) authorizes the magistrate, as a special master, to conduct a trial upon the consent of the parties. The standard of review applicable to a magistrate’s recommendation is dependent upon which of these sections grants his authority in a particular instance. Here, the magistrate has ruled on a summary judgment motion which, according to section 636(b)(1)(B), is a dispositive pretrial motion and one which is subject to de novo review. See Brown v. Wesley’s Quaker Maid, Inc., 771 F.2d 952, 954 (6th Cir.1985), cert. denied, 479 U.S. 830, 107 S.Ct. 116, 93 L.Ed.2d 63 (1986); EEOC v. Keco Industries, Inc., 748 F.2d 1097, 1102 (6th Cir.1984). A summary judgment determination should be distinguished from section 636(b)(1)(A) determinations, which are subject to a clearly erroneous standard of review. To make the issue even more complicated, a special master’s findings, pursuant to section 636(b)(2), are reviewed under both the clearly erroneous standard (factual findings) and the de novo standard (mixed or pure findings of law). See Oil, Chemical and Atomic Workers International Union, AFL-CIO v. NLRB, 547 F.2d 575, 580 (D.C.Cir.1976), cert. denied sub nom., Angle v. NLRB, 431 U.S. 966, 97 S.Ct. 2923, 53 L.Ed.2d 1062 (1977). Thus, the standard of review applicable to a special master’s findings depends on (1) which section grants the magistrate’s authority in a particular instance and (2) whether the finding is one of fact or of law. After sorting through the statutory provisions, we find that the district court was correct in reviewing de novo the magistrate’s decision as to summary judgment. The summary judgment motion was a section 636(b)(1)(B) dispositive motion which is subject to de novo review. To hold that the designation of a magistrate as a special master changes the court’s standard of review as to a magistrate’s recommendation on a dispositive motion would allow a district court to avoid the classification of subsections (b)(1)(A) and (B) simply by designating a magistrate as a special master. Therefore, we refuse to engage in such reasoning. Although it would have been preferable for the district court to have listed its reasons for rejecting the magistrate’s opinion, such action was not required because the review was de novo. Thus, Roland’s contention as to this point is without merit. III. Having resolved the procedural issue in a manner favorable to the defendants-appellees, we must now determine whether the court’s summary judgment order is also to be upheld. This court may only sustain a grant of summary judgment if the materials before the district court show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Furthermore, all evidence must be viewed in a light most favorable to the non-moving party. See Sec. & Exch. Comm’n v. Blavin, 760 F.2d 706, 710 (6th Cir.1985) (per curiam). Applying this standard to the facts of this case, we find the district court improperly granted summary judgment to the defendants. The parties do not dispute that the legal standard applicable to determining whether a violation of the eighth amendment occurred in the context of an assault upon an inmate is whether the defendants’ conduct amounted to a “deliberate indifference” to a risk of injury to the plaintiff. See Whitley v. Albers, 475 U.S. 312, 106 S.Ct. 1078, 1084, 89 L.Ed.2d 251 (1986); Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 291, 50 L.Ed.2d 251 (1976). The Supreme Court in Whitley concluded that in order to support an action under section 1983, plaintiffs must establish something more than a lack of ordinary due care, inadvertence or error. Instead, the conduct must be “obdurate” or “wanton,” i.e., a recklessness or callous neglect. Whitley, 106 S.Ct. at 1084. This standard is designed to strike an appropriate balance between the deference that should be accorded to prison officials in their administration of the prison and the constitutional right of prisoners to be free from cruel and unusual punishment. Id. In this case, Roland has assembled a substantial record establishing a legitimate factual question as to whether the defendants were deliberately indifferent to his safety. This is especially true since all factual inferences are to be resolved in his favor on a motion for summary judgment. Consequently, when viewing the evidence in a light most favorable to the plaintiff, as we must do, we conclude that it is possible that a jury could have found liability as to each of the defendants on the following bases. First, as to defendant Toland, a jury could find that he had been informed of the threat Weatherspoon and Perry posed to other inmates, but failed to take action to reclassify these inmates from their positions as breakmen when asked to do so by Assistant Resident Unit Manager Thrams. A jury could also find that if Toland had conducted further investigations after his discussions with Thrams, he would have found widespread evidence that Weather-spoon and Perry were pressing other inmates for sex. Second, as to defendant Phillips, a jury also could find that he had been warned by plaintiffs mother, Mrs. Berry, that her son had been pressured by other inmates for sex. The jury could also find that Mrs. Berry showed Phillips a picture of her son which would suggest that he fit the known profile of prison rape victims. Finally, a jury could find that Phillips’ response to Mrs. Berry, i.e., that her son need not worry if he was not a homosexual, was effectively a failure to act and therefore manifested a deliberate indifference to the plaintiff’s security needs. Finally, as to defendants Johnson and Foltz, a jury could find that they were responsible for a pervasive policy at SPSM which discourages the reporting and prosecution of assaults. The jury also could find that despite their knowledge of a high level of violence and sexual assaults at the prison, they failed to adopt policies that would eliminate or control these problems, thereby ensuring the safety of prisoners like Roland. Finally, the jury could find that Johnson and Foltz allowed policies to exist which permitted inmates like Weather-spoon and Perry to hold positions of “hon- or” in a medium security block. In light of the above observations, there clearly exist questions of material fact concerning the behavior of each of the defendants with respect to the injuries allegedly suffered by the plaintiff, and whether that behavior under the circumstances of this case amounts to a deliberate indifference to the plaintiff’s safety. Accordingly, a summary judgment order was not appropriate in this case. IV. Finally, because the district court’s decision is reversed and this case is remanded for trial, the court’s decision to award costs to the defendants is vacated. Therefore, for all of the foregoing reasons, the district court’s summary judgment order is REVERSED and this case is REMANDED for further proceedings consistent with this opinion and the court’s award of costs to the defendants is VACATED. . Section 636(b)(1)(A), (B), and (C) provide as follows: (A) [A] judge may designate a magistrate to hear and determine any pretrial matter pending before the court, except a motion for ... summary judgment.... A judge of this court may reconsider any pretrial matter under this subparagraph (A) where it has been shown that the magistrate’s order is clearly erroneous or contrary to law. (B) [A] judge may also designate a magistrate to conduct hearings, including evidentiary hearings, and to submit to a judge of the court proposed findings of fact and recommendations for the disposition, by a judge of the court, of any motion excepted in subparagraph (A), [i.e., summary judgment motions,].... (C) [T]he magistrate shall file his proposed findings and recommendations under subpar-agraph (B) with the court and a copy shall forthwith be mailed to all parties. Within ten days after being served with a copy, any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court. A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate. The judge may also receive further evidence or recommit the matter to the magistrate with instructions. (Emphasis added). . Section 636(b)(2) provides as follows: A judge may designate a magistrate to serve as a special master pursuant to the applicable provisions of this title and the Federal Rules of Civil Procedure for the United States district courts. A judge may designate a magistrate to serve as a special master in any civil case, upon consent of the parties, without regard to the provisions of rule 53(b) of the Federal Rules of Civil Procedure for the United States district courts. Question: What is the total number of respondents in the case? Answer with a number. Answer:
songer_procedur	B	What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant. FULLER v. HOFFERBERT. No. 11602. United States Court of Appeals Sixth Circuit. May 29, 1953. H. Vincent E. Mitchell, Cleveland, Ohio, McAfee, Grossman, Taplin, Hanning, Newcomer & Hazlett, Cleveland, Ohio, on brief, for appellant. Alonzo W. Watson, Washington, D. C., Charles S. Lyon, Ellis N. Slack and Helen Goodner, Washington, D. C., John J. Kane, Jr., Cleveland, Ohio, on brief, for appellee. Before ALLEN, McALLISTER, and MILLER, Circuit Judges. McAllister, circuit judge. Norman C. Fuller brought suit for refund of income tax paid for the year 1944, basing his claim upon Title 26 U.S.C.A. § 116(a) (1) and (3), and § 119(c) (3). He contends that during the taxable year of 1944, he was a bona fide resident of Soviet Russia and that, under the provisions of the statute above mentioned and the Treasury Regulations promulgated thereunder, he was entitled to a refund of the amount of income tax, which he claims was erroneously and illegally assessed and collected from him by the Collector of Internal Revenue. On a trial in the district court, his claim for refund was denied, and from such judgment, he appeals. There is no dispute that the salary which appellant received during the year 1944 was, under section 119(c) (3) above mentioned, paid to him for personal services performed without the United States. The sole issue in the case is whether, within the intendment of the statute and regulations, Fuller was a bona fide resident of Soviet Russia during the taxable year in question. In determining this issue, it is necessary to consider the circumstances surrounding Fuller’s journey to Russia; the services he performed there; and the nature of his stay in that country, as evidence of his intentions as to residence in Russia. Fuller was an engineer who commenced his employment with the firm oí E. B. Badger & Sons Company, of Boston, in 1939. After having been associated with that company in various engineering projects for approximately four years, he was, in the spring of 1943, offered an assignment in Soviet Russia. It appears that the Badger Company, through a lend-lease agreement between the American government and the Soviet Russian government, was designated as the consulting engineering company in the erection of a number of oil refineries for the Russian government. In carrying out its commitments, the Badger Company proposed to Fuller that he go to Russia for an indefinite stay as one of its engineers in charge of supervising the engineering services in constructing and placing in operation the new refineries. At that time, the Badger Company informed Fuller that there were at least four refining units that it had already contracted for, with a number of future units being contemplated. Fuller was, at that time, a young man twenty-seven years old, married, and had a home in Toledo, Ohio. The proposal of the Badger Company to send him to Russia in the midst of the war appealed to him for a number of reasons. There was the chance to better his situation, financially, because of the higher salary offered. There was also the challenge to him as an engineer to engage in carrying out large projects in a great undeveloped country; the opportunity for long term employment; the reputation and prestige that would result to him in his profession from having had such experiences and service; and the spirit of adventure, which probably exceeded the other considerations. It. was planned by the Badger Company that A. Gilbert Formel, one of Fuller’s friends, and at present chief engineer for a construction company in'the East, would be associated in the Russian expedition, and would be Fuller’s immediate superior. Both Formel and Fuller were specialists and experts in the Houdry Catalytic Cracking Process, and Fuller’s title was Houdry case engineer. During the spring of 1943, Fuller, who was then working for the Badger Company at Marcus Hook, Pennsylvania, on his trips home to Toledo, had stopped off on several occasions at Sandusky, Ohio, where Mr.' Formel was working, to talk over the possibilities of the Russian assignment. They had discussed Russia with a couple of engineers who had already been in that country, and, as a result, were enthusiastic about the prospects for an engineer in that part of the world, and thought along the same lines with regard to its being an opportunity of great promise for them, professionally and financially. At that time, the relations between the American government and the Russian government were very friendly. From June 1943 until late in the autumn, Fuller and Formel were in New York making arrangements for visas, passports, inoculations, and similar matters, and in November 1943, they left for Russia. Fuller’s route lay through the Gulf of Mexico, Central and South America, Africa, The Sudan, Egypt, Persia, Stalingrad, and Moscow, where he arrived about the middle of December, 1943. The disastrous German defeat at Stalingrad had occurred earlier • that year. After registering with the American Embassy, Fuller was sent to the village of Guriev, which, although described throughout the case as a village, contained approximately 55,000 inhabitants. Guriev is 1,500 miles distant from Moscow and is located at the mouth of the Ural River on the northern shore of the Caspian Sea. A place of extremes of temperature, ranging from 140° Fahrenheit in the summer to 40° below in the winter, and of primitive living conditions, it was a test for the adventurous. Fuller’s work as an engineer in Russia was to assist the Russian engineers and superintendents in whatever' manner he could with regard to the engineering project. The design of the materials, as well as their fabrication, was American, and it was the job of Fuller to interpret the plans and specifications; to help the Russians in scheduling their work; and to give them suggestions and recommendations in constructing the refinery. When Fuller and Formel first arrived in Guriev, they were put up temporarily by the Russian government in a house from which the N. K. V. D., the State Police, had evicted the people whose home it had been. Under the agreement with the Badger Company, the Russian government was obligated to provide satisfactory living quarters and furnishings for Fuller and Formel. But what appeared satisfactory to the Russians fell far below the standards which the Americans expected, and it required continual demands and arguments on their part to secure the quarters to which they felt they were entitled. After several weeks of such repeated discussions and arguments, the Russians agreed to construct, and did construct, according to the plans and under the supervision of Fuller and Formel, three cottages for the use of the American engineers and for the storage of their materials and equipment. Each cottage was about 50 feet wide by 100 feet long, with cavity brick walls with dirt insulation, wood pole joists, and wooden roof with roofing paper and tar on top. The cottages were substantially built and were divided into two parts, with one apartment in front and one in the rear, each apartment having a living room, bedroom, bathroom and toilet, and kitchen. They were heated by means of a hot water boiler situated in a building which was erected in the rear of the three cottages. Each cottage had hot water radiator heat from this central heating plant. Around an area of about five acres of land upon which the cottages were built was erected a fence. The Russians were able to supply only a few old benches and chairs to furnish the cottages. Fuller appears to have shown considerable ingenuity in securing lumber from the Russian authorities and making, with work tools, the necessary chairs and benches to furnish the cottages. In addition, he made clothes racks, shelves, lamps, and other conveniences, with the rather unusual result that when Fuller finally left the country, the Russians had commenced to imitate the construction of Fuller’s lawn chairs on a production line basis. During his stay in Russia which lasted approximately twenty months, Fuller, after commencing the study of the Russian language in New York, resumed it in Gu-riev with the official interpreter for the oil commissariat with which the American engineers were connected, and continued to spend an hour or two a day for a considerable time in the study of the language until he had acquired such a fair working knowledge that he could carry on conversations on ordinary matters related to daily living with the Russians, as well as to engage in a considerable amount of friendly sociable intercourse with them. Fuller and Formel found that they were largely dependent upon themselves in their games and amusements. The only sports the Russians engaged in were soccer and boxing. Fuller constructed a ping-pong table and basketball boards. In arranging to play horseshoes, he found he could not procure any suitable horseshoes in the locality because of the fact that the Russian ponies are so small that the shoes with which they are shod are only about five inches in diameter. Fuller, accordingly, carved a horseshoe out of wood in the desired size, and from this model, one of the local blacksmiths made a number of horseshoes. Fuller afterward interested the Russians in these various sports and succeeded in teaching and training a number of them to play the American games, including basketball, baseball, and football, until some good players were developed in these sports. In order to have a variety of food, Fuller planted a garden within the small so-called compound, and secured seed corn, pop corn seed, tomato seed, and whatever other seeds could be found in the locality. In addition to raising these garden products, he also set out a flower garden. Formel, who was a witness, told of Fuller’s interest in and supervision of cooking, and of his attempt to make the food more palatable by undertaking to translate into the Russian language an American cook book. He found, however, that there were many words in the cook book for which there was no translation, and ended up by giving numbers to the various American cooking materials, and placing the numbers on the various cans and containers, so that the Russian girl who helped in the cooking could put a spoonful of a certain number into a mixture for a recipe. He even undertook to cook the pastry himself, and made the pies for their dinners. Fuller and Formel had the use of a jeep, and whenever they had the time, they were free to drive anywhere in the country they desired without permit or supervision, the only restricting factors being sufficient food and gasoline for such journeys. Thus, they had a unique chance to see more of the people, and the different parts of the country. In studying the situation in Russia, Fuller found that there was a definite atmosphere of fear and oppression among the ordinary workers and the poorer people in Guriev, and that the rank and file of them lived in continual fear of the secret police, and avoided association with foreigners. However, he and Formel became friends with the so-called “higher level” government officials, and often conversed with, and visited the Russian engineers, the members of their staffs', and the military officers, and their families. They were frequently invited to entertainments and dinners by the Russians, and, in turn, invited the various officials' and their wives to their place for dinner. , They often' accepted invitations to the theatre, some of the dramatic companies on tour staying for four months at a time in the village; and they attended traveling circuses, ballets, and other entertainments which seemed to be available most of the time. They were invited to banqrtets, one, a rather lavish affair in honor of a colonel who, for his work in Guriev, had won the highest award for construction speed and excellence in the entire Soviet Union; and they were afterward invited, with a small, select group of1 officials, to the home of the colonel for further festivity. During their stay, they became fast friends with a number of Russian officials and their families, as a result of their entering into the life of this remote town on the Caspian Sea. During all of this time, Fuller Was studying the Russian people, their language, their land, their economic system, their banking arrangements, and their general conduct of business, and manifested a deep interest not only in his work and environment, but in the adventure of living in a new and strange land. When Fuller first contemplated going to Russia for the Badger Company, it was his intention to have his wife go with him, but he was told by the company that, while he could not take his wife at that time, if war conditions changed for the better, the company would then see what it could do to make such an arrangement. His marriage had always been happy, and he continued, all during the year of 1944 and until the midsummer of 1945, to try to have his wife allowed to come over. He thought she would like the experience of living a while in Russia, and considered that the house in Guriev would be “an ideal setup” for both of them. In the thought that she might be allowed to come, they sold their house in Toledo in April, 1945. He had his wife take up the matter of securing a visa with the State Department, but they met with one frustration after another. Throughout his whole stay in Russia, Fuller testified, he had intended to remain there indefinitely and to have his wife join him there. Toward the end of his stay, Fuller and his wife decided that he would remain, while his wife resolved, in case she could not join him, to live in America and to follow the necessary training to become a nurse during the war period; and they were reconciled to remaining apart a couple of years longer. Fuller later found out that it was a company policy not to permit employees’ wives to go to Russia, and when it appeared that she probably could not join him in Russia, Mrs. Fuller sent him cablegrams on several occasions in which she encouraged him to stay on, for financial and economic reasons. At that time — in the middle, and even in the latter part of 1945 — the Badger Company still had a number of engineering projects in Russia at Krasnovodsk, Orsk, and Kuibeshev. As late as June, 1945, Fuller was still uncertain as to whether it would be possible for him to bring his wife to Russia. But, by the time Fuller had seen Badger’s chief representative in Russia in Moscow later in the summer of 1945, this official had already arranged with the Embassy for an exit visa for Fuller’s return to America. Even then, he planned to seek other engineering work in Iran, and as late as July, 1945, sent his wife a cablegram telling her that his work in Russia was finished, and that travel arrangements were being made for his return, although that was not his decision. In the cablegram, he also told her that he was considering future work in Russia in employment other than with the Badger Company, or in Sumatra. Fuller testified that during the year 1944, he intended to remain in Russia as long as the Badger Company had work for him to do, and that he definitely considered that such work would last through the year 1944, which it did, and, in fact, for a much longer period. Thereafter, Mrs. Fuller, because of the repeated frustrations and separation from her husband, began to suffer from nervousness, and decided, in order to recover, to go to Tucson, Arizona, for some months; and it was because of this circumstance, according to Fuller’s testimony, that he decided, during the middle of 1945, that he should come back home to her. He returned to America in October, 1945, after an absence of two years. Fuller’s testimony is substantiated by Formel in all important respects, and, in fact, is not attacked or questioned by the government. Was he, then, a bona fide resident of Russia during the taxable year of 1944, within the intendment of the statute exempting him from payment of income tax during that period? In this regard, we proceed to consider what is residence, and what is “bona fide residence,” within the meaning of the statute. Because “domicile” and “residence” are usually in the same place, they are frequently used as if they had the same meaning. “Domicile,” however, means living in a locality with intent to make it a fixed and permanent home, while “residence” simply requires bodily presence as an inhabitant in a given place. Commissioner of Internal Revenue v. Swent, 4 Cir., 155 F.2d 513. In the case before us, the income tax regulations governing the interpretation of section 116, the principal provision of the statute with which we are concerned, set forth that in order to determine who is a bona fide resident of a foreign country, reference should be made to Treasury Regulation 111, Sections 29.211-2 through 29.211-5, relating to what constitutes residence or non-residence in the United States of America by an alien individual. Thus, the test of an American’s residence in a foreign country for the purpose of exempting from tax, income derived from his economic pursuits while in such country as a resident, is the test of residence applied to an alien who comes to the United States for a business purpose. That test is set forth in Section 29.211-2, as follows: “An alien actually present in the United States who is not a mere transient or sojourner is a resident of the United States for purposes of the income tax. Whether he is a transient is determined by his intentions with regard to the length and nature of his stay. A mere floating intention, indefinite as to time, to return to another country is not sufficient to constitute him a transient. If he lives in the United States and has no definite intention as to his stay, he is a resident. One who comes to the United States for a definite purpose which in its nature may be promptly accomplished is a transient; but if his purpose is of such a nature that an extended stay may be necessary for its accomplishment, and 1o that end the alien makes his home temporarily in the United States, he becomes a resident, though it may be his intention at all times to return to his domicile abroad when the purpose for which he came has been consummated or abandoned.” In Swenson v. Thomas, 5 Cir., 164 F.2d 783, 784, the court had occasion to comment upon the foregoing regulation, and observed : “It excludes ‘a mere transient or sojourner’, and correctly. A transient means literally ‘one going across’, or passing through. ‘Sojourner’ is built around the French word ‘jour’, meaning a day, and signifies a mere temporary presence or visit.” In the Swenson case, the court quoted the regulation, substituting in place of “the United States”, the foreign country in which the taxpayer was a resident during the period in controversy. Following this clarifying method in the instant case, it could be said that the regulation provides: “If the taxpayer lives in Russia and has no definite intention as to his stay, he is a resident. One who comes to Russia for a definite purpose which in its nature may he promptly accomplished is a transient; but if his purpose is of such a nature that an extended stay may be necessary for its accomplishment, and, to that end, the taxpayer makes his home temporarily in Russia, he becomes a resident there, though it be his intention at all times to return to his domicile in the United States when the purpose for which he came has been consummated or abandoned.” When it is considered that it required Fuller several months to prepare for the expedition to Russia; that the contract he entered into with the Badger Company provided that the term of his employment would be indefinite; that it was represented to him that the company had contracted for engineering service to be rendered for the erection of four refineries, with several more in contemplation, which would require, and did require engineering services for more than two years; that the service in Russia resulted in greatly increased salary for him, as well as prestige in his profession; that he made efforts to have his wife allowed to go with him and was still planning, after a year and a half of residence in Russia, to have her join him; that he helped to supervise the building of substantial houses for his use during his service in Guriev; that he entered into the life and activities of the community, learning the language, forming friendships, undertaking a serious study of the institutions of the country, and identifying himself with the daily life of the people; that he intended to remain in Russia even longer than his term of service, and thereafter to work as an engineer in Iran or Sumatra— all of these circumstances, which have been set forth in detail make it clear that there was no doubt that his work was of such a nature as to require service in Russia for an indefinite period, and, at least, throughout the year 1944; and that he had intended from the beginning to reside in Russia not only during that period but for a much longer time. We see little force in the government’s argument that, since the taxpayer was happily married, that his wife could not be in Russia with him, and that he was unwilling to remain away from her for any length of time, her presence was an essential element in the establishment of a “true home.” In the first place, this statement is contrary to the undisputed evidence as to his unwillingness to remain away from his wife for any length of time. What has been set forth in great detail as to the intentions and views of the husband and wife as to his remaining in Russia is repeated throughout the record without qualification or uncertainty. Moreover, there is nothing in the statute or the regulation that remotely suggests that exemption from income tax depends upon whether a taxpayer has established a “true home” in a foreign country for the taxable year. The regulation refers only to one who “makes his home temporarily” in a foreign country. In Seeley v. Commissioner, 2 Cir., 186 F.2d 541, 544, where a similar question arose, the court, in holding that a taxpayer was a resident in a foreign country entitled to exemption from income tax,, stated that “his purpose, assuming that it had been ‘definite,’ was not one which was sure to be ‘promptly accomplished’; on the contrary it was of ‘such a nature that an extended stay may’ (might) ‘be necessary for its accomplishment, and to that end’ he made ‘his home temporarily’ in London. * * * if his wife had gone along with him there could have been no fair question that together London would have been their ‘temporary home.’ The only reason why she did not go was ‘because of * * * travel restrictions * * .’ Certainly it would not further the general purpose of the statute to induce Americans to take jobs abroad, if those were granted tax exemption who could take their wives, but those were not, who could not. * * A man, who settles down to an indefinitely continued performance of such duties, for the time being at least, has a ‘home.’ ” The fact that, on his application-for passport extension, Fuller gave his. home address as Toledo, Ohio, and his foreign address as “c/o United States Military Mission, Moscow,” is irrelevant and in noway derogates from the fact that he was-a bona fide resident of Russia during the. taxable year of 1944. Moreover, the government’s claim that Fuller’s stay in Russia was subject to such legal and contractual restrictions as to preclude any view that he was a bona fide resident of Russia,, we find to be without merit. The circumstance that Fuller was subject to the draft and that his deferment was subject to renewal every six months had nothing to do with his intention as to residence when he went to Russia to help carry out lend-lease agreements with the consent of his government and where his purpose in going was of such a nature that an extended stay might, and, in this case, would be necessary for its accomplishment. In Swenson v. Thomas, supra, the taxpayer had been employed for service in a foreign country for three years but the contract was terminable "by either party on thirty days’ notice. Yet it was held in that case that the taxpayer had established that he was a bona fide resident of a foreign country during this period and exempt from income tax. The fact that Fuller’s passport also was subject to renewal every six months in no way invalidates his claim of bona fide residence during the taxable period, under either the •statute or the regulation. Downs v. Commissioner, 9 Cir., 166 F.2d 504, 505, cited by the government in support of its contention, appears rather, by implication, to sustain appellant. There the •court was concerned with the claim for exemption from income tax on the part of a citizen who had served in England under ■contract with an aircraft corporation. The corporation had a contract with the United States government whereby it agreed to organize, equip, and operate an aircraft depot in Great Britain during the war; and the taxpayer was one of the corporation’s workers employed in connection with the project. The contract of employment provided it was to be performed under the regulations and requirements of the corporation, as well as those of the United States government, “and all civil or military laws and regulations in effect from time to time at the place or places of duty * * .” Employees were prohibited from divulging information connected with the war activities, and were to go and come, when and as directed by the employer, and to journey by any method of transportation chosen by the employer. In remarking upon the character of this employment, the court observed: “It will be seen that persons employed under the contract, and who performed services under it, were admi#ied to the foreign country for specific work directly related to the United States Government’s war efforts, and that they were handle'd, controlled and restricted much the same as military personnel.” (Emphasis supplied.) The court held that the salaries of such employees were not exempt from income tax under the statute and regulation, and, in discussing the regulation, made this significant declaration: “Section 29.211-2 unquestionably is drawn with the understanding that unless the United States citizen abroad ‘makes his home temporarily’ in the foreign country, that is, as we see it, identifies himself in some degree with its customs and lives under and within such customs, he is not a resident of the foreign country in which he is staying temporarily.” The foregoing could be somewhat expanded, in a general sense, by saying that such a citizen makes his home temporarily in a foreign country, where he enters into the life of the community, takes part in the activities of the people, engages in social intercourse with the citizens, cultivates friendships with them, and identifies himself with their daily lives, their entertainments, their amusements, while intending to continue to live in their country for an indefinite period. We may here take note of a claim that the legislative history of the tax law discloses support for the government’s position in this case. During the course of the hearings on the amendment, the chairman of the committee having the matter under consideration remarked that he might be able to shorten the testimony of one of the witnesses by stating that “the complete elimination of Section 116(a) [the provision with which we are concerned in this case] was not really intended, that it was not the primary purpose in the case of the bona fide, non-resident American citizen who established a home and maintains his establishment and is taking on corresponding obligations of the home in any foreign country, but there is some need for treatment of this section, so that the technicians, American citizens who are merely temporarily away from home could be properly reached and dealt with for taxation purposes.” We cannot see, adopting the most favorable view of the government’s argument, that the foregoing discloses an intention that would subject the appellant in this case to income tax during his residence in Russia. In any event, it is not every fragment of a discussion in which a member of Congress participates,, informally, with a witness in a hearing before a committee, that is considered a guide or an aid in the construction of a statute. A senator or a representative might often conclude that a remark which he made at the inception of the consideration of a new statute during a hearing was improvident in the light of subsequent reflection. Certainly, such remarks and observations are not aids in construction, and the foregoing quoted statement, made to a witness during a hearing on an amendment, cannot be considered by a court called upon to construe a statute, as having the same dignity and force as the language of the statute itself. We have before us a statute and a regulation which clearly elucidates its meaning. Under the regulation, Fuller could not be called a mere transient or sojourner in a foreign country during the taxable year of 1944. Under its provisions, he was clearly a bona fide resident of Russia during the taxable year and is exempt from payment of income tax during that period. See Myers v. Commissioner of Internal Revenue, 4 Cir., 180 F.2d 969. In accordance with the foregoing, the judgment is reversed, the assessment expunged, and the case remanded with directions to enter a judgment for the taxpayer in the amount claimed. . Title 26, U.S.O.A. § 316 (1945 Edition), provides: “Exclusions from gross income “In addition to the items specified * , the following items shall not be included in gross income and shall be exempt from taxation under this chapter: “(a) Earned income from sources without the United States. “(3) Foreign resident for entire taxable gear. In the case of an individual citizen of the United States, who establishes to the satisfaction of the Commissioner that he is a bona fide resident of a foreign country or countries during the entire taxable year, amounts received from sources without the United States (except amounts paid by the United States or any agency thereof) if such amounts constituíe earned income as defined in paragraph (3); but such individuals shall not be allowed .as a deduction from Ms gross income any deductions properly al-locable to or chargeable against amounts excluded from gross income under this subsection. * * “(3) Definition of earned income. For the purposes of this subsection, ‘earned income’ means wages, salaries, professional fees, and other amounts received as compensation for personal services actually rendered, but does not include that part of the compensation derived by the taxpayer for personal services rendered by him to a corporation which represents a distribution of earnings or profits rather than a reasonable allowance as compensation for the personal services actually rendered. * * * ” Title 26, U.S.C.A. § 119, provides- ******* “(c) dross income from sources without United States. The following items of gross income shall be treated as income from sources without the United States: * * * * * * “(3) Compensation for labor or personal services performed without the United States; * * Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_appnatpr	0	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. AMERICAN PAPER INSTITUTE, INC., Petitioner, v. INTERSTATE COMMERCE COMMISSION and United States of America, Respondents, National Association of Recycling Industries, Inc., Intervenor. No. 79-1583. United States Court of Appeals, District of Columbia Circuit. Sept. 7, 1979. Edward L. Merrigan, Washington, D. C., was on the motion to dismiss, for intervenor. John F. Donelan and John K. Maser, III, Washington, D. C., were on the opposition to the motion to dismiss, for petitioner. Robert S. Burk, Kenneth G. Caplan and David Popowski, Attys., I. C. C., Washington, D. C., for respondent I. C. C. John J. Powers, III and Robert Lewis Thompson, Attys., Dept, of Justice, Washington, D. C., for respondent United States of America. Before MacKINNON , ROBB and WILKEY, Circuit Judges. Circuit Judge MacKinnon did not participate in the foregoing decision. Opinion for the court PER CURIAM. PER CURIAM: American Paper Institute, Inc. (API) filed a petition for review of an ICC order. The petition conformed to the notice requirements of Rule 15(a) of the Federal Rules of Appellate Procedure, being modeled after Form 3 of the Appendix of forms. Intervenor National Association of Recycling Industries, Inc. (NARI) has moved to dismiss or strike the petition because the petition does not conform to the more specific requirements of the Hobbs Act, 28 U.S.C. § 2344 (1976). Because Rule 15(a) supersedes section 2344 with respect to forms of petitions, the motion is denied. Section 2344 provides that a petition for review from an ICC proceeding “shall contain a concise statement of — (1) the nature of the proceedings as to which review is sought; (2) the facts on which venue is based; (3) the grounds on which relief is sought; and (4) the relief prayed.” Intervenor NARI contends that because API’s petition for review does not contain the statements required by section 2344, the petition must be dismissed or striken. Petitioner API argues that the strict pleading requirements of section 2344 have been superseded by Rule 15(a) of the Federal Rules of Appellate Procedure, which requires only that a petition for review “specify the parties seeking review,” and “designate the respondent and the order or part thereof to be reviewed.” We agree. The Federal Rules of Appellate procedure were promulgated by the Supreme Court of the United States pursuant to 28 U.S.C. § 2072, which provides, in part: The Supreme Court shall have the power to prescribe by general rules, the forms of process, writs, pleadings, and motions, and the practice and procedure of the district courts and courts of appeals of the United States in civil actions, including . . . the practice and procedure in proceedings . . . for the judicial review or enforcement of orders of administrative agencies, boards, commissions, and officers. All laws in conflict with such rules shall be of no further force or effect after such rules have taken effect. Nothing in this title, anything therein to the contrary notwithstanding, shall in any way limit, supersede, or repeal any such rules heretofore prescribed by the Supreme Court. Thus, conflicting statutes are superseded by the Federal Rules of Appellate Procedure. That Rule 15(a) was meant to supersede section 2344 is made clear in the Advisory Committee’s comments about the Rule: The proposed rule supersedes 28 U.S.C. § 2344 and other statutory provisions prescribing the form of the petition for review and permits review to be initiated by the filing of a simple petition similar in form to the notice of appeal used in appeals from judgments of district courts. The more elaborate form of petition for review now required is rarely useful either to the litigants or to the courts. There is no effective, reasonable way of obliging petitioners to come to the real issues before those issues are formulated in the briefs. . . . In view of the clear intent of the Advisory Committee that Rule 15(a) supersede section 2344, and because the specificity requirements of section 2344 conflict with the notice-only requirement of Rule 15(a), the Rule requirements supersede those of the statute. There are, however, two reported opinions of this court that may obliquely contravene this proposition. In Microwave Communications, Inc. v. FCC (MIC) this court held that the time for filing a petition for review does not expire earlier than sixty days from the issuance of the full text of the disputed order. One of the reasons for so holding was that the court could not “envision how preparation of a petition for review conforming to [28 U.S.C. § 2344 and 47 U.S.C. § 402(a)] requirements [of argumentative particularity] could responsibly be undertaken simply on the basis of . a [news release].” In Industrial Union Department v. Bingham a petition for review was filed after an OSHA standard was disclosed to a representative group of interested organizations, but before it was announced and the text was released to the public at a press conference. The court held that the petition was not premature. The court noted that MCI “held that the period for seeking review of an FCC order began only when its full text was made available.” The court reasoned that MCI was factually distinguishable and moreover the requirement of a statement of reasons in a petition/notice, as required by 28 U.S.C. § 2344 and 47 U.S.C. § 402(c), distinguished, for purposes of determining whether a petition/notice has been filed prematurely, appeals of FCC orders from appeals of orders of other agencies in which the governing statutes do not require a statement of reasons. Both these cases appear to assume that the section 2344 requirements of petition format are applicable in the relevant agency review proceedings. However, because it does not appear that the court considered the effect of Rule 15(a) in reaching these results, and because a conclusion that section 2344 specificity requirements are still valid was not essential to the outcome in either case, the opinions are not inconsistent with today’s holding that Rule 15(a) notice requirements supersede the argumentative particularity mandate in section 2344. CONCLUSION Because the Advisory Committee’s notes and the conflicting nature of the requirements of Rule 15(a) and section 2344 make clear that the rule supersedes the statute, and in the absence of contrary binding precedent, the motion to dismiss or strike the petition is denied. . While NARI is a petitioner in No. 79-1393, it is an intervenor in No. 79-1583. The two cases, along with several others, were consolidated for review by order dated 14 June 1979. . The Order of the Court promulgating the Appellate Rules is reported at 389 U.S. 1063 (1968). . 28 U.S.C. § 2072 (1976) (emphasis added). . Notes of Advisory Committee on Appellate Rules, reprinted following 28 U.S.C. App. Fed.R.App. P. 15 (1976). . 169 U.S.App.D.C. 154, 515 F.2d 385 (D.C. Cir. 1974). . 169 U.S.App.D.C. at 160, 515 F.2d at 391. . 187 U.S.App.D.C. 56, 570 F.2d 965 (D.C. Cir. 1977). . Id. at 969 n.6. Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number. Answer:
sc_lcdispositiondirection	A	What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the decision of the court whose decision the Supreme Court reviewed was itself liberal or conservative. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. The lower court's decision direction is unspecifiable if the manner in which the Supreme Court took jurisdiction is original or certification; or if the direction of the Supreme Court's decision is unspecifiable and the main issue pertains to private law or interstate relations UNITED STATES v. UNITED SHOE MACHINERY CORP. No. 597. Argued April 1, 1968. Decided May 20, 1968. Assistant Attorney General Turner argued the cause for the United States. With him on the briefs were Solicitor General Griswold, Francis X. Beytagh, Jr., Howard E. Shapiro, Thomas R. Asher, and Margaret H. Brass. Ralph M. Carson argued the cause for appellee. With him on the brief were Conrad W. Oberdorfer, Robert D. Salinger, Lloyd N. Cutler, Taggart Whipple, and Louis L. Stanton, Jr. James F. Rill, John R. Hally, and Thomas F. Shannon filed a brief for the National Footwear Manufacturers Association, Inc., et al., as amici curiae, urging affirmance. Mr. Justice Fortas delivered the opinion of the Court. In 1953, in a civil suit brought by the United States, the District Court for the District of Massachusetts held that appellee had violated § 2 of the Sherman Antitrust Act by monopolizing the manufacture of shoe machinery. The court found that “(1) defendant has, and exercises, such overwhelming strength in the shoe machinery market that it controls that market, (2) this strength excludes some potential, and limits some actual, competition, and (3) this strength is not attributable solely to defendant’s ability, economies of scale, research, natural advantages, and adaptation to inevitable economic laws.” United States v. United Shoe Machinery Corp., 110 F. Supp. 295, 343 (1953). The court did not order the relief requested by the Government— that appellee be dissolved into three separate shoe machinery manufacturing companies. Rather, the court imposed a variety of restrictions and conditions designed “to recreate a competitive market.” Appellee appealed to this Court, which affirmed the decision of the District Court. United Shoe Machinery Corp. v. United States, 347 U. S. 521 (1954). The decree of the District Court, entered on February 18, 1953, and subsequently modified on July 12 and September 17, 1954, provided in paragraph 18 that: “On [January 1, 1965] both parties shall report to this Court the effect of this decree, and may then petition for its modification, in view of its effect in establishing workable competition. If either party takes advantage of this paragraph by filing a petition, each such petition shall be accompanied by affidavits setting forth the then structure of the shoe machinery market and defendant’s power within that market.” 110 F. Supp., at 354. Pursuant to this provision, the Government reported to the District Court on January 1, 1965, that appellee continued to dominate the shoe machinery market, that workable competition had not been established in that market, and that additional relief was accordingly necessary. The Government asked that appellee be required to submit to the Court a plan, pursuant to which United's business would be reconstituted so as to form two fully competing companies in the shoe machinery market. It also requested “such other and further relief as may be necessary to establish workable competition in the shoe machinery market.” The District Court, after a hearing, denied the Government's petition. It held that under United States v. Swift & Co., 286 U. S. 106 (1932), its power to modify the original decree was limited to cases involving “(1) a clear showing of (2) grievous wrong (3) evoked by new and unforeseen conditions.” United States v. United Shoe Machinery Corp., 266 F. Supp. 328, 330 (1967). Analyzing its 1953 decree, as amended, the court said that the object of the decree was “not to restore so-called workable competition but to move toward establishing it,” and that “the 1953 decree has operated in the manner and with the effect intended. It has put in motion forces which, aided by new technology, have eroded United’s power and already dissipated much of the effect of United’s monopolization.” 266 F. Supp., at 330, 334. Accordingly, in view of the stringent requirements of Swift as the court construed that decision, the District Court denied the Government’s petition. From this decision the Government appealed to this Court. We noted probable jurisdiction. 389 U. S. 967 (1967). We reverse. I. The District Court misconceived the thrust of this Court’s decision in Swift. That case in no way restricts the District Court’s power to grant the relief requested by the Government in the present case. In Swift, a consent decree had been entered in 1920 ordering a measure of divestiture by and imposing a variety of restraints upon the defendant meat packers. In 1930, after various unsuccessful attempts to secure modification or vacation of the decree, the packers filed a petition “to modify the consent decree and to adapt its restraints to the needs of a new day,” as Justice Cardozo phrased it. 286 U. S., at 113. The lower court granted a measure of relief and the United States appealed. This Court reversed. It emphasized the power of a court of equity “to modify an injunction in adaptation to changed conditions though it was entered by consent.” Id., at 114. The question, it held, is “whether enough has been shown to justify its exercise.” Id., at 115. After reviewing the evidence, the Court concluded that the danger of monopoly and of the elimination of competition which led to the initial government complaint and the decree had not been removed and that, although in some respects the decree had been effectuated, there was still a danger of unlawful restraints of trade. The Court’s language, quoted and relied on by the trial court here, to the effect that “nothing less than a clear showing of grievous wrong evoked by new and unforeseen conditions should lead us to change,” id., at 119, the decree, must, of course, be read in light of this context. Swift teaches that a decree may be changed upon an appropriate showing, and it holds that it may not be changed in the interests of the defendants if the purposes of the litigation as incorporated in the decree (the elimination of monopoly and restrictive practices) have not been fully achieved. The present case is the obverse of the situation in Swift if the Government’s allegations are proved. Here, the Government claims that the provisions of the decree were specifically designed to achieve the establishment of “workable competition” by various means and that the decree has failed to accomplish this result. Because time and experience have demonstrated this fact, according to the Government, it seeks modification of the decree. Nothing in Swift precludes this. In Swift, the defendants sought relief not to achieve the purposes of the provisions of the decree, but to escape their impact. Accordingly, we conclude that the District Court erred in denying the Government’s petition “on the authority of United States v. Swift & Co., 286 U. S. 106, 119.” 266 F. Supp., at 334. II. Decision as to the Government’s petition to modify the decree in the present case must be based upon the specific facts and circumstances that are presented. In urging affirmance of the 1953 decision, the Government advised this Court that, in framing the decree, the District Court had “proceeded on the premise that relatively mild remedies should be tried as a first resort, and that the possibility of more drastic measures should be held in abeyance.” Brief of the United States, No. 394, 1953 Term, 155. Paragraph 18 of the decree appeared to be in confirmation of this statement since it expressly required a report after 10 years of experience under the decree and contemplated that petitions for modification might be filed “in view of [the decree’s] effect in establishing workable competition.” Paragraph 18 then specifically provided that any such petition would have to be accompanied by “affidavits setting forth the then structure of the shoe machinery market and defendant’s power within that market.” These specifications were peculiarly apt because this is a monopoly case under § 2 of the Sherman Act and because the decree was shaped in response to findings of monopolization of the shoe machinery market. That the purpose of the 1953 decree was to eliminate this unlawful market domination was made clear beyond question by the District Court’s statement at the beginning of the section of its opinion dealing with relief. This read as follows: “Where a defendant has monopolized commerce in violation of § 2, the principal objects of the decrees are to extirpate practices that have caused or may hereafter cause monopolization, and to restore workable competition in the market.” 110 F. Supp., at 346-347. It is of course established that, in a § 2 case, upon appropriate findings of violation, it is the duty of the court to prescribe relief which will terminate the illegal monopoly, deny to the defendant the fruits of its statutory violation, and ensure that there remain no practices likely to result in monopolization in the future. See, e. g., United States v. Grinnell Corp., 384 U. S. 563, 577 (1966); Schitne Theatres v. United States, 334 U. S. 110, 128-129 (1948). The trial court is charged with inescapable responsibility to achieve this objective, although it may, if circumstances warrant, accept a formula for achieving the result by means less drastic than immediate dissolution or divestiture. The decree in the present case was carefully devised within the limits of this principle. Measures short of divestiture were prescribed with provisions for review and possible revision after 10 years. The District Court has now denied the Government’s petition for modification of the decree on the ground that the decree is “still working at its long-range task of freeing the market from all consequences of United’s monopolization and keeping the door wide open for the arrival of an adequately provided challenger.” 266 F. Supp., at 334. According to the court, this was the intended effect of the decree. If the decree had not contained paragraph 18 — if it had been silent as to the time for submitting reports and, if necessary, petitions for modification — and if after 10 years it were shown that the decree had not achieved the adequate relief to which the Government is entitled in a § 2 case, it would have been the duty of the court to modify the decree so as to assure the complete extirpation of the illegal monopoly. The court’s power to do this is clear. See, e. g., United States v. Swift & Co., 286 U. S. 106 (1932); Chrysler Corp. v. United States, 316 U. S. 556 (1942). Its duty is implicit in the findings of violation of § 2 and in the decisions of this Court as to the type of remedy which must be prescribed. We find nothing in the 1953 decree, as amended, or in the District Court’s opinion relating thereto which presents an obstacle or embarrassment to the application of this principle in the present case. If the decree has not, after 10 years, achieved its “principal objects,” namely, “to extirpate practices that have caused or may hereafter cause monopolization, and to restore workable competition in the market” — the time has come to prescribe other, and if necessary more definitive, means to achieve the result. A decade is enough. Even if we should assume that paragraph 18, as the District Court now states, had only the limited purpose of calling for a 10-year report as to whether the decree was “gradually eroding United’s 1953 power to monopolize the market,” 266 F. Supp., at 330, its specific provisions did not exhaust the District Court’s power. Relief in a Sherman Act case “should put an end to the combination and deprive the defendants of any of the benefits of the illegal conduct, and break up or render impotent the monopoly power found to be in violation of the Act.” United States v. Grinnell Corp., 384 U. S. 563, 577 (1966). See also United States v. United States Gypsum Co., 340 U. S. 76, 88-90 (1950); United States v. E. I. du Pont de Nemours & Co., 366 U. S. 316, 326 (1961). The District Court should proceed to determine whether the relief in this case has met the standards which this Court has prescribed. If it has not, the District Court should modify the decree so as to achieve the required result with all appropriate expedition. It is so ordered. Mr. Justice Marshall took no part in the consideration or decision of this case. Some of the major provisions of the decree were as follows: United was enjoined from further monopolization; it was ordered to offer for sale all types of machines (previously only leased) at “such terms ... as do not make it substantially more advantageous for a shoe factory to lease rather than to buy a machine”; if United continued leasing it was required to lease for no more than five-year terms under certain specified conditions; it was not to refuse a prospective customer’s request to lease or buy a machine “except for good cause”; it was to submit a plan for disposing of certain sectors of its business; it was to grant to any applicant, except a deliberate infringer, a nonexclusive license under any or all patents held by it on reasonable nondiscriminatory royalty terms; it was not to acquire any patents or patent applications except those acquired by reason of bona fide employment of the inventor, nor was it to acquire patents or patent applications under exclusive license; it was not to acquire any second-hand shoe machinery or any shoe machinery manufacturer or a manufacturer or distributor of supplies for shoe factories. A petition by appellee, seeking to be relieved of certain restrictions contained in the original decree, was similarly denied. The judgment in this regard is not before us, since appellee has not appealed to this Court. In paragraph 23 of the original decree jurisdiction was expressly retained “for the purpose of enabling either of the parties to apply to this Court at any time for such further orders and directions as may be appropriate for the correction, construction, or carrying out of this Decree, and to set aside the Decree and take further proceedings if future developments justify that course in the appropriate enforcement of the Anti-Trust Act.” 110 F. Supp., at 354. In rejecting the suggestion that United be forbidden to lease on any terms, the District Court stated specifically that it “agrees that it would be undesirable, at least until milder remedies have been tried, to direct United to abolish leasing forthwith.” 110 F. Supp., at 349. We emphasize that there is no issue here regarding the timing of the Government’s petition for modification. No claim is made that the Government has petitioned for modification before the running of a reasonable period during which the effects of the original decree have become clear. Moreover, the Government may claim, persuasively, that paragraph 18 of the original decree specifically contemplated that the Government would petition when it did. Question: What is the ideological direction of the decision reviewed by the Supreme Court? A. Conservative B. Liberal C. Unspeciﬁable Answer:
sc_partywinning	B	What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the petitioning party (i.e., the plaintiff or the appellant) emerged victorious. The victory the Supreme Court provided the petitioning party may not have been total and complete (e.g., by vacating and remanding the matter rather than an unequivocal reversal), but the disposition is nonetheless a favorable one. Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. BRIDGE et al. v. PHOENIX BOND & INDEMNITY CO. et al. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT No. 07-210. Argued April 14, 2008 Decided June 9, 2008 Theodore M. Becker argued the cause for petitioners. With him on the briefs were Peter Buscemi and Joseph Brooks. David W. DeBruin argued the cause for respondents. With him on the brief were Ian Heath Gershengorn and Lowell E. Sachnoff. Eric D. Miller argued the cause for the United States as amicus curiae in support of respondents. On the brief were former Solicitor General Clement, Assistant Attorney General Fisher, Deputy Solicitor General Dreeben, and Pratik A. Shah. Briefs of amici curiae urging reversal were filed for the Chamber of Commerce of the United States of America by Gene C. Schaerr, Linda T. Coberly, Charles B. Klein, Robin S. Conrad, and Amar D. Sarwal; for the McKesson Corp. by Beth S. Brinkmann and Brian R. Matsui; and for the Washington Legal Foundation by Daniel J. Popeo and Richard A. Samp. Briefs of amici curiae urging affirmance were filed for the State of Connecticut et al. by Richard Blumenthal, Attorney General of Connecticut, Robert B. Teitelman, Assistant Attorney General, and Barry C. Barnett, and by the Attorneys General for their respective States as follows: Terry Goddard of Arizona, Lisa Madigan of Illinois, Mike McGrath of Montana, Gary K. King of New Mexico, Marc Dann of Ohio, W. A. Drew Edmondson of Oklahoma, and Robert E. Cooper, Jr., of Tennessee; for the International Association of Insurance Receivers by C. Philip Curley, Cynthia H. Hyndman, and Robert S. Michaels; and for the National Association of Shareholder and Consumer Attorneys by Kevin P. Roddy and G. Robert Blakey. Justice Thomas delivered the opinion of the Court. The Racketeer Influenced and Corrupt Organizations Act (RICO or Act), 18 U. S. C. §§ 1961-1968, provides a private right of action for treble damages to “[a]ny person injured in his business or property by reason of a violation” of the Act’s criminal prohibitions. § 1964(c). The question presented in this case is whether a plaintiff asserting a RICO claim predicated on mail fraud must plead and prove that it relied on the defendant’s alleged misrepresentations. Because we agree with the Court of Appeals that a showing of first-party reliance is not required, we affirm. I Each year the Cook County, Illinois, Treasurer’s Office holds a public auction at which it sells tax liens it has acquired on the property of delinquent taxpayers. Prospective buyers bid on the liens, but not in cash amounts. Instead, the bids are stated as percentage penalties the property owner must pay the winning bidder in order to clear the lien. The bidder willing to accept the lowest penalty wins the auction and obtains the right to purchase the lien in exchange for paying the outstanding taxes on the property. The property owner may then redeem the property by paying the lienholder the delinquent taxes, plus the penalty established at the auction and an additional 12% penalty on any taxes subsequently paid by the lienholder. If the property owner does not redeem the property within the statutory redemption period, the lienholder may obtain a tax deed for the property, thereby in effect purchasing the property for the value of the delinquent taxes. Because property acquired in this manner can often be sold at a significant profit over the amount paid for the lien, the auctions are marked by stiff competition. As a result, most parcels attract multiple bidders willing to accept the lowest penalty permissible — 0%, that is to say, no penalty at all. (Perhaps to prevent the perverse incentive taxpayers would have if they could redeem their property from a winning bidder for less than the amount of their unpaid taxes, the county does not accept negative bids.) The lower limit of 0% creates a problem: Who wins when the bidding results in a tie? The county’s solution is to allocate parcels “on a rotational basis” in order to ensure that liens are apportioned fairly among 0% bidders. App. 18. But this creates a perverse incentive of its own: Bidders who, in addition to bidding themselves, send agents to bid on their behalf will obtain a disproportionate share of liens. To prevent this kind of manipulation, the county adopted the “Single, Simultaneous Bidder Rule,” which requires each “tax buying entity” to submit bids in its own name and prohibits it from using “apparent agents, employees, or related entities” to submit simultaneous bids for the same parcel. Id., at 67. Upon registering for an auction, each bidder must submit a sworn affidavit affirming that it complies with the Single, Simultaneous Bidder Rule. Petitioners and respondents are regular participants in Cook County’s tax sales. In July 2005, respondents filed a complaint in the United States District Court for the Northern District of Illinois, contending that petitioners had fraudulently obtained a disproportionate share of liens by violating the Single, Simultaneous Bidder Rule at the auctions held from 2002 to 2005. According to respondents, petitioner Sabre Group, LLC, and its principal Barrett Rochman arranged for related firms to bid on Sabre Group’s behalf and directed them to file false attestations that they complied with the Single, Simultaneous Bidder Rule. Having thus fraudulently obtained the opportunity to participate in the auction, the related firms collusively bid on the same properties at a 0% rate. As a result, when the county allocated liens on a rotating basis, it treated the related firms as independent entities, allowing them collectively to acquire a greater number of liens than would have been granted to a single bidder acting alone. The related firms then purchased the liens and transferred the certificates of purchase to Sabre Group. In this way, respondents allege, petitioners deprived them and other bidders of their fair share of liens and the attendant financial benefits. Respondents’ complaint contains five counts. Counts I-IV allege that petitioners violated and conspired to violate RICO by conducting their affairs through a pattern of racketeering activity involving numerous acts of mail fraud. In support of their allegations of mail fraud, respondents assert that petitioners “mailed or caused to be mailed hundreds of mailings in furtherance of the scheme,” id., at 49, when they sent property owners various notices required by Illinois law. Count V alleges a state-law claim of tortious interference with prospective business advantage. On petitioners’ motion, the District Court dismissed respondents’ RICO claims for lack of standing. It observed that “[o]nly [respondents] and other competing buyers, as opposed to the Treasurer or the property owners, would suffer a financial loss from a scheme to violate the Single, Simultaneous Bidder Rule.” App. to Pet. for Cert. 17a. But it concluded that respondents “are not in the class of individuals protected by the mail fraud statute, and therefore are not within the ‘zone of interests’ that the RICO statute protects,” because they “were not recipients of the alleged misrepresentations and, at best were indirect victims of the alleged fraud.” Id., at 18a. The District Court declined to exercise supplemental jurisdiction over respondents’ tortious-interference claim and dismissed it without prejudice. The Court of Appeals for the Seventh Circuit reversed. It first concluded that “[standing is not a problem in this suit” because respondents suffered a “real injury” when they lost the valuable chance to acquire more liens, and because “that injury can be redressed by damages.” 477 F. 3d 928, 930 (2007). The Court of Appeals next concluded that respondents had sufficiently alleged proximate cause under Holmes v. Securities Investor Protection Corporation, 503 U. S. 258 (1992), and Anza v. Ideal Steel Supply Corp., 547 U. S. 451 (2006), because they (along with other losing bidders) were “immediately injured” by petitioners’ scheme. 477 F. 3d, at 930-932. Finally, the Court of Appeals rejected petitioners’ argument that respondents are not entitled to relief under RICO because they did not receive, and therefore did not rely on, any false statements: “A scheme that injures D by making false statements through the mail to E is mail fraud, and actionable by D through RICO if the injury is not derivative of someone else’s.” Id., at 932. With respect to this last holding, the Court of Appeals acknowledged that courts have taken conflicting views. By its count, “[t]hree other circuits that have considered this question agree... that the direct victim may recover through RICO whether or not it is the direct recipient of the false statements,” ibid, (citing Mid Atlantic Telecom, Inc. v. Long Distance Servs., Inc., 18 F. 3d 260,263-264 (CA4 1994); Systems Management, Inc. v. Loiselle, 303 F. 3d 100,103-104 (CA1 2002); Ideal Steel Supply Corp. v. Anza, 373 F. 3d 251, 263 (CA2 2004)), whereas two Circuits hold that the plaintiff must show that it in fact relied on the defendant’s misrepresentations, 477 F. 3d, at 932 (citing VanDenBroeck v. CommonPoint Mortgage Co., 210 F. 3d 696,701 (CA6 2000); Sikes v. Teleline, Inc., 281 F. 3d 1350, 1360-1361 (CA11 2002)). Compare also Sandwich Chef of Texas, Inc. v. Reliance Nat. Indemnity Ins. Co., 319 F. 3d 205, 223 (CA5 2003) (recognizing “a narrow exception to the requirement that the plaintiff prove direct reliance on the defendant’s fraudulent predicate act... when the plaintiff can demonstrate injury as a direct and contemporaneous result of [a] fraud committed against a third party”), with Appletree Square I, L. P. v. W. R. Grace & Co., 29 F. 3d 1283,1286-1287 (CA8 1994) (requiring the plaintiff to show that it detrimentally relied on the defendant’s misrepresentations). We granted certiorari, 552 U. S. 1087 (2008), to resolve the conflict among the Courts of Appeals on “the substantial question,” Anza, supra, at 461, whether first-party reliance is an element of a civil RICO claim predicated on mail fraud. II We begin by setting forth the applicable statutory provisions. RICO’s private right of action is contained in 18 U. S. C. § 1964(c), which provides in relevant part that “[a]ny person injured in his business or property by reason of a violation of section 1962 of this chapter may sue therefor in any appropriate United States district court and shall recover threefold the damages he sustains and the cost of the suit, including a reasonable attorney’s fee.” Section 1962 contains RICO’s criminal prohibitions. Pertinent here is § 1962(c), which makes it “unlawful for any person employed by or associated with” an enterprise engaged in or affecting interstate or foreign commerce “to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity.” The term “racketeering activity” is defined to include a host of so-called predicate acts, including “any act which is indictable under... section 1341 (relating to mail fraud).” § 1961(1)(B). The upshot is that RICO provides a private right of action for treble damages to any person injured in his business or property by reason of the conduct of a qualifying enterprise’s affairs through a pattern of acts indictable as mail fraud. Mail fraud, in turn, occurs whenever a person, “having devised or intending to devise any scheme or artifice to defraud,” uses the mail “for the purpose of executing such scheme or artifice or attempting so to do.” §1341. The gravamen of the offense is the scheme to defraud, and any “mailing that is incident to an essential part of the scheme satisfies the mailing element,” Schmuck v. United States, 489 U. S. 705, 712 (1989) (citation and internal quotation marks omitted), even if the mailing itself “contain[s] no false information,” id., at 715. Once the relationship among these statutory provisions is understood, respondents’ theory of the case is straightforward. They allege that petitioners devised a scheme to defraud when they agreed to submit false attestations of compliance with the Single, Simultaneous Bidder Rule to the county. In furtherance of this scheme, petitioners used the mail on numerous occasions to send the requisite notices to property owners. Each of these mailings was an “act which is indictable” as mail fraud, and together they constituted a “pattern of racketeering activity.” By conducting the affairs of their enterprise through this pattern of racketeering activity, petitioners violated § 1962(c). As a result, respondents lost the opportunity to acquire valuable liens. Accordingly, respondents were injured in their business or property by reason of petitioners’ violation of § 1962(c), and RICO’s plain terms give them a private right of action for treble damages. Petitioners argue, however, that because the alleged pattern of racketeering activity consisted of acts of mail fraud, respondents must show that they relied on petitioners’ fraudulent misrepresentations. This they cannot do, because the alleged misrepresentations — petitioners’ attestations of compliance with the Single, Simultaneous Bidder Rule — were made to the county, not respondents. The county may well have relied on petitioners’ misrepresentations when it permitted them to participate in the auction, but respondents, never having received the misrepresentations, could not have done so. Indeed, respondents do not even allege that they relied on petitioners’ false attestations. Thus, petitioners submit, they fail to state a claim under RICO. If petitioners’ proposed requirement of first-party reliance seems to come out of nowhere, there is a reason: Nothing on the face of the relevant statutory provisions imposes such a requirement. Using the mail to execute or attempt to execute a scheme to defraud is indictable as mail fraud, and hence a predicate act of racketeering under RICO, even if no one relied on any misrepresentation. See Neder v. United States, 527 U. S. 1, 24-25 (1999) (“The common-law requirement] of 'justifiable reliance’... plainly ha[s] no place in the [mail, wire, or bank] fraud statutes”). And one can conduct the affairs of a qualifying enterprise through a pattern of such acts without anyone relying on a fraudulent misrepresentation. It thus seems plain — and indeed petitioners do not dispute — that no showing of reliance is required to establish that a person has violated § 1962(c) by conducting the affairs of an enterprise through a pattern of racketeering activity consisting of acts of mail fraud. See Anza, 547 U. S., at 476 (Thomas, J., concurring in part and dissenting in part) (“Because an individual can commit an indictable act of mail or wire fraud even if no one relies on his fraud, he can engage in a pattern of racketeering activity, in violation of § 1962, without proof of reliance”). If reliance is required, then, it must be by virtue of § 1964(c), which provides the right of action. But it is difficult to derive a first-party reliance requirement from § 1964(c), which states simply that “[a]ny person injured in his business or property by reason of a violation of section 1962” may sue for treble damages. The statute provides a right of action to “[a]ny person” injured by the violation, suggesting a breadth of coverage not easily reconciled with an implicit requirement that the plaintiff show reliance in addition to injury in his business or property. Moreover, a person can be injured “by reason of” a pattern of mail fraud even if he has not relied on any misrepresentations. This is a case in point. Accepting their allegations as true, respondents clearly were injured by petitioners’ scheme: As a result of petitioners’ fraud, respondents lost valuable liens they otherwise would have been awarded. And this is true even though they did not rely on petitioners’ false attestations of compliance with the county’s rules. Or, to take another example, suppose an enterprise that wants to get rid of rival businesses mails misrepresentations about them to their customers and suppliers, but not to the rivals themselves. If the rival businesses lose money as a result of the misrepresentations, it would certainly seem that they were injured in their business “by reason of” a pattern of mail fraud, even though they never received, and therefore never relied on, the fraudulent mailings. Yet petitioners concede that, on their reading of § 1964(c), the rival businesses would have no cause of action under RICO, Tr. of Oral Arg. 4, even though they were the primary and intended victims of the scheme to defraud. Lacking textual support for this counterintuitive position, petitioners rely instead on a combination of common-law rules and policy arguments in an effort to show that Congress should be presumed to have made first-party reliance an element of a civil RICO claim based on mail fraud. None of petitioners’ arguments persuades us to read a first-party reliance requirement into a statute that by its terms suggests none. Ill A Petitioners first argue that RICO should be read to incorporate a first-party reliance requirement in fraud cases “under the rule that Congress intends to incorporate the well-settled meaning of the common-law terms it uses.” Neder, supra, at 23. It has long been settled, they contend, that only the recipient of a fraudulent misrepresentation may recover for common-law fraud, and that he may do so “if, but only if... he relies on the misrepresentation in acting or refraining from action.” 4 Restatement (Second) of Torts §537 (1977). Given this background rule of common law, petitioners maintain, Congress should be presumed to have adopted a first-party reliance requirement when it created a civil cause of action under RICO for victims of mail fraud. In support of this argument, petitioners point to our decision in Beck v. Prupis, 529 U. S. 494 (2000). There, we considered the scope of RICO’s private right of action for violations of § 1962(d), which makes it “unlawful for any person to conspire to violate” RlCO’s criminal prohibitions. The question presented was “whether a person injured by an overt act in furtherance of a conspiracy may assert a civil RICO conspiracy claim under § 1964(c) for a violation of § 1962(d) even if the overt act does not constitute ‘racketeering activity.’” Id., at 500. Answering this question in the negative, we held that “injury caused by an overt act that is not an act of racketeering or otherwise wrongful under RICO is not sufficient to give rise to a cause of action under § 1964(c) for a violation of § 1962(d).” Id., at 505 (citation omitted). In so doing, we “turn[ed] to the well-established common law of civil conspiracy.” Id., at 500. Because it was “widely accepted” by the time of RlCO’s enactment “that a plaintiff could bring suit for civil conspiracy only if he had been injured by an act that was itself tortious,” id., at 501, we presumed “that when Congress established in RICO a civil cause of action for a person ‘injured... by reason of’ a ‘conspiracy],’ it meant to adopt these well-established common-law civil conspiracy principles,” id., at 504 (quoting §§ 1964(c), 1962(d); alterations in original). We specifically declined to rely on the law of criminal conspiracy, relying instead on the law of civil conspiracy: “We have turned to the common law of criminal conspiracy to define what constitutes a violation of § 1962(d), see Salinas v. United States, 522 U. S. 52, 63-65 (1997), a mere violation being all that is necessary for criminal liability. This case, however, does not present simply the question of what constitutes a violation of § 1962(d), but rather the meaning of a civil cause of action for private injury by reason of such a violation. In other words, our task is to interpret §§ 1964(c) and 1962(d) in conjunction, rather than § 1962(d) standing alone. The obvious source in the common law for the combined meaning of these provisions is the law of civil conspiracy.” Id., at 501, n. 6. Petitioners argue that, as in Beck, we should look to the common-law meaning of civil fraud in order to give content to the civil cause of action § 1964(c) provides for private injury by reason of a violation of § 1962(c) based on a pattern of mail fraud. The analogy to Beck, however, is misplaced. The critical difference between Beck and this case is that in § 1962(d) Congress used a term — “conspiracy]”—that had a settled common-law meaning, whereas Congress included no such term in § 1962(c). Section 1962(c) does not use the term “fraud”; nor does the operative language of §1961(1)(B), which defines “racketeering activity” to include “any act which is indictable under... section 1341.” And the indictable act under § 1341 is not the fraudulent misrepresentation, but rather the use of the mails with the purpose of executing or attempting to execute a scheme to defraud. In short, the key term in § 1962(c) — “racketeering activity” — is a defined term, and Congress defined the predicate act not as fraud sim/pliciter, but mail fraud — a statutory offense unknown to the common law. In these circumstances, the presumption that Congress intends to adopt the settled meaning of common-law terms has little pull. Cf. Stoneridge Investment Partners, LLC v. Scientific-Atlanta, Inc., 552 U. S. 148, 162 (2008) (rejecting the argument that § 10(b) of the Securities Exchange Act of 1934, 15 U. S. C. § 78j(b), incorporates common-law fraud). There is simply no “reason to believe that Congress would have defined ‘racketeering activity’ to include acts indictable under the mail and wire fraud statutes, if it intended fraud-related acts to be predicate acts under RICO only when those acts would have been actionable under the common law.” Anza, 547 U. S., at 477-478 (Thomas, J., concurring in part and dissenting in part). Nor does it help petitioners’ cause that here, as in Beck, the question is not simply “what constitutes a violation of §1962[(c)],... but rather the meaning of a civil cause of action for private injury by reason of such a violation.” 529 U. S., at 501, n. 6. To be sure, Beck held that a plaintiff cannot state a civil claim for conspiracy under § 1964(c) merely by showing a violation of § 1962(d) and a resulting injury. But in so doing, Beck relied not only on the fact that the term “conspiracy” had a settled common-law meaning, but also on the well-established common-law understanding of what it means to be injured by a conspiracy for purposes of bringing a civil claim for damages. See id., at 501-504. No comparable understanding exists with respect to injury caused by an enterprise conducting its affairs through a pattern of acts indictable as mail fraud. And even the common-law understanding of injury caused by fraud does not support petitioners’ argument. As discussed infra, at 656-657, the common law has long recognized that plaintiffs can recover in a variety of circumstances where, as here, their injuries result directly from the defendant’s fraudulent misrepresentations to a third party. For these reasons, we reject petitioners’ contention that the “common-law meaning” rule dictates that reliance by the plaintiff is an element of a civil RICO claim predicated on a violation of the mail fraud statute. Congress chose to make mail fraud, not common-law fraud, the predicate act for a RICO violation. And “the mere fact that the predicate acts underlying a particular RICO violation happen to be fraud offenses does not mean that reliance, an element of common-law fraud, is also incorporated as an element of a civil RICO claim.” Anza, swpra, at 476 (Thomas, J., concurring in part and dissenting in part). B Petitioners next argue that even if Congress did not make first-party reliance an element of a RICO claim predicated on mail fraud, a plaintiff who brings such a claim must show that it relied on the defendant’s misrepresentations in order to establish the requisite element of causation. In Holmes, we recognized that §1964(c)’s “language can, of course, be read to mean that a plaintiff is injured ‘by reason of’ a RICO violation, and therefore may recover, simply on showing that the defendant violated § 1962, the plaintiff was injured, and the defendant’s violation was a ‘but for’ cause of plaintiff’s injury.” 503 U. S., at 265-266 (footnote omitted). We nonetheless held that not “all factually injured plaintiffs” may recover under § 1964(c). Id., at 266. Because Congress modeled § 1964(c) on other provisions that had been interpreted to “requir[e] a showing that the defendant’s violation not only was a ‘but for’ cause of his injury, but was the proximate cause as well,” we concluded that § 1964(c) likewise requires the plaintiff to establish proximate cause in order to show injury “by reason of” a RICO violation. Id., at 268. Proximate cause, we explained, is a flexible concept that does not lend itself to “ ‘a black-letter rule that will dictate the result in every case.’ ” Id., at 272, n. 20 (quoting Associated Gen. Contractors of Cal., Inc. v. Carpenters, 459 U. S. 519, 536 (1983)). Instead, we “use[d] ‘proximate cause’ to label generically the judicial tools used to limit a person’s responsibility for the consequences of that person’s own acts,” Holmes, 503 U. S., at 268, with a particular emphasis on the “demand for some direct relation between the injury asserted and the injurious conduct alleged,” ibid.; see also Anza, supra, at 461 (“When a court evaluates a RICO claim for proximate causation, the central question it must ask is whether the alleged violation led directly to the plaintiff’s injuries”). The direct-relation requirement avoids the difficulties associated with attempting “to ascertain the amount of a plaintiff’s damages attributable to the violation, as distinct from other, independent, factors,” Holmes, 503 U. S., at 269; prevents courts from having “to adopt complicated rules apportioning damages among plaintiffs removed at different levels of injury from the violative acts, to obviate the risk of multiple recoveries,” ibid.; and recognizes the fact that “directly injured victims can generally be counted on to vindicate the law as private attorneys general, without any of the problems attendant upon suits by plaintiffs injured more remotely,” id., at 269-270. Pointing to our reliance on common-law proximate-causation principles in Holmes and Anza, petitioners argue that ‘‘[u]nder well-settled common-law principles, proximate cause is established for fraud claims only where the plaintiff can demonstrate that he relied on the misrepresentation.” Brief for Petitioners 28. In support of this argument, petitioners cite 3 Restatement (Second) of Torts § 548A, which provides that “[a] fraudulent misrepresentation is a legal cause of a pecuniary loss resulting from action or inaction in reliance upon it if, but only if, the loss might reasonably be expected to result from the reliance.” Thus, petitioners conclude, “a plaintiff asserting a civil RICO claim predicated on mail fraud cannot satisfy the proximate cause requirement unless he can establish that his injuries resulted from his reliance on the defendant’s fraudulent misrepresentation.” Brief for Petitioners 28. Petitioners’ argument is twice flawed. First, as explained above, the predicate act here is not common-law fraud, but mail fraud. Having rejected petitioners’ argument that reliance is an element of a civil RICO claim based on mail fraud, we see no reason to let that argument in through the back door by holding that the proximate-cause analysis under RICO must precisely track the proximate-cause analysis of a common-law fraud claim. “Reliance is not a general limitation on civil recovery in tort; it ‘is a specialized condition that happens to have grown up with common law fraud.’” Anza, 547 U. S., at 477 (Thomas, J., concurring in part and dissenting in part) (quoting Systems Management, 303 F. 3d, at 104). That “specialized condition,” whether characterized as an element of the claim or as a prerequisite to establishing proximate causation, simply has no place in a remedial scheme keyed to the commission of mail fraud, a statutory offense that is distinct from common-law fraud and that does not require proof of reliance. Second, while it may be that first-party reliance is an element of a common-law fraud claim, there is no general common-law principle holding that a fraudulent misrepresentation can cause legal injury only to those who rely on it. The Restatement provision cited by petitioners certainly does not support that proposition. It provides only that the plaintiff’s loss must be a foreseeable result of someone’s reliance on the misrepresentation. It does not say that only those who rely on the misrepresentation can suffer a legally cognizable injury. And any such notion would be contradicted by the long line of cases in which courts have permitted a plaintiff directly injured by a fraudulent misrepresentation to recover even though it was a third party, and not the plaintiff, who relied on the defendant’s misrepresentation. Indeed, so well established is the defendant’s liability in such circumstances that the Restatement (Second) of Torts sets forth as a “[g]eneral [principle” that “[o]ne who intentionally causes injury to another is subject to liability to the other for that injury, if his conduct is generally culpable and not justifiable under the circumstances.” § 870. As an illustration, the Restatement provides the example of a defendant who “seeks to promote his own interests by telling a known falsehood to or about the plaintiff or his product.” Id., Comment h (emphasis added). And the Restatement specifically recognizes “a cause of action” in favor of the injured party where the defendant “defrauds another for the purpose of causing pecuniary harm to a third person.” Id., § 435A, Comment a. Petitioners’ contention that proximate cause has traditionally incorporated a first-party reliance requirement for claims based on fraud cannot be reconciled with these authorities. Nor is first-party reliance necessary to ensure that there is a sufficiently direct relationship between the defendant’s wrongful conduct and the plaintiff’s injury to satisfy the proximate-cause principles articulated in Holmes and Anza. Again, this is a case in point. Respondents’ alleged injury— the loss of valuable liens — is the direct result of petitioners’ fraud. It was a foreseeable and natural consequence of petitioners’ scheme to obtain more liens for themselves that other bidders would obtain fewer liens. And here, unlike in Holmes and Anza, there are no independent factors that account for respondents’ injury, there is no risk of duplicative recoveries by plaintiffs removed at different levels of injury from the violation, and no more immediate victim is better situated to sue. Indeed, both the District Court and the Court of Appeals concluded that respondents and other losing bidders were the only parties injured by petitioners’ misrepresentations. App. to Pet. for Cert. 17a; 477 F. 3d, at 931. Petitioners quibble with that conclusion, asserting that the county would be injured too if the taint of fraud deterred potential bidders from participating in the auction. But that eventuality, in contrast to respondents’ direct financial injury, seems speculative and remote. Of course, none of this is to say that a RICO plaintiff who alleges injury “by reason of” a pattern of mail fraud can prevail without showing that someone relied on the defendant’s misrepresentations. Cf. Field v. Mans, 516 U. S. 59, 66 (1995) (“No one, of course, doubts that some degree of reliance is required to satisfy the element of causation inherent in the phrase ‘obtained by’” in 11 U. S. C. §523(a)(2)(A), which prohibits the discharge of debts for money or property “obtained by” fraud). In most cases, the plaintiff will not be able to establish even but-for causation if no one relied on the misrepresentation. If, for example, the county had not accepted petitioners’ false attestations of compliance with the Single, Simultaneous Bidder Rule, and as a result had not permitted petitioners to participate in the auction, respondents’ injury would never have materialized. In addition, the complete absence of reliance may prevent the plaintiff from establishing proximate cause. Thus, for example, if the county knew petitioners’ attestations were false but nonetheless permitted them to participate in the auction, then arguably the county’s actions would constitute an intervening cause breaking the chain of causation between petitioners’ misrepresentations and respondents’ injury. Accordingly, it may well be that a RICO plaintiff alleging injury by reason of a pattern of mail fraud must establish at least third-party reliance in order to prove causation. “But the fact that proof of reliance is often used to prove an element of the plaintiff’s cause of action, such as the element of causation, does not transform reliance itself into an element of the cause of action.” Anza, 547 U. S., at 478 (Thomas, J., concurring in part and dissenting in part). Nor does it transform first-party reliance into an indispensable requisite of proximate causation. Proof that the plaintiff relied on the defendant’s misrepresentations may in some cases be sufficient to establish proximate cause, but there is no sound reason to conclude that such proof is always necessary. By the same token, the absence of first-party reliance may in some cases tend to show that an injury was not sufficiently direct to satisfy § 1964(c)’s proximate-cause requirement, but it is not in and of itself dispositive. A contrary holding would ignore Holmes’ instruction that proximate cause is generally not amenable to bright-line rules. C As a last resort, petitioners contend that we should interpret RICO to require first-party reliance for fraud-based claims in order to avoid the “over-federalization” of traditional state-law claims. In petitioners’ view, respondents’ claim is essentially one for tortious interference with prospective business advantage, as evidenced by count V of their complaint. Such claims have traditionally been handled under state law, and petitioners see no reason why Congress would have wanted to supplement traditional state-law remedies with a federal cause of action, complete with treble damages and attorney’s fees, in a statute designed primarily to combat organized crime. See Anza, supra, at 471-475 (Thomas, J., concurring in part and dissenting in part); Beck, 529 U. S., at 496-497. A first-party reliance requirement, they say, is necessary “to prevent garden-variety disputes between local competitors (such as this case) from being converted into federal racketeering actions.” Reply Brief for Petitioners 3. Whatever the merits of petitioners’ arguments as a policy matter, we are not at liberty to rewrite RICO to reflect their — or our — views of good policy. We have repeatedly refused to adopt narrowing constructions of RICO in order to make it conform to a preconceived notion of what Congress intended to proscribe. See, e. g., National Organization for Women, Inc. v. Scheidler, 510 U. S. 249, 252 (1994) (rejecting the argument that “RICO requires proof that either the racketeering enterprise or the predicate acts of racketeering were motivated by an economic purpose”); H. J. Inc. v. Northwestern Bell Telephone Co., 492 U. S. 229, 244 (1989) (rejecting “ Question: Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. Did the petitioning win the case? A. Yes B. No Answer:
songer_weightev	A	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?" This includes discussions of whether the litigant met the burden of proof. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". Fred K. WAGONER, Jack R. Wagoner, Donald L. Wagoner and Howard R. Wagoner, co-partners, doing business under the firm name and style of Wagoner Construction Company, Appellants, v. MOUNTAIN SAVINGS AND LOAN ASSOCIATION, a corporation, Appellee. No. 6961. United States Court of Appeals Tenth Circuit. Dec. 3, 1962. No appearance for appellants. C. Blake Hiester, Denver, Colo. (Hiester, Tanner & Clanahan, and Bill Earl Tom, Denver, Colo., were with him on the brief), for appellee. Before LEWIS, BREITENSTEIN and SETH, Circuit Judges. LEWIS, Circuit Judge. Appellants-plaintiffs seek relief from an adverse and summary judgment entered by the District Court for the District of Colorado upon claim that the existence of disputed facts prevent the application of Rule 56, F.R.C.P. Plaintiffs’ original complaint was filed May 12, 1959, and contained four causes of action; it was dismissed with leave to amend. A first amended complaint was similarly dismissed. A second amended complaint followed and, upon motion of appellee-defendant for summary judgment, was dismissed as to the third and fourth causes alleged because barred by the.applicable statute of limitation; the trial court held in abeyance a ruling upon the first two causes of action pending compliance by plaintiffs with an order of the court requiring clarification of plaintiffs’ counter-affidavits filed in opposition to the motion for summary judgment. Such order was premised upon the following procedural background. In the first and second causes plaintiffs alleged: (1) That plaintiffs entered into an oral and written agreement with defendant on or about June 29, 1955, whereby it was agreed that plaintiffs would convey to corporations controlled by the defendant certain real property in Boulder County, Colorado, in exchange for defendant’s payment of outstanding obligations of the construction company incurred in connection with another property development. It was further agreed that the defendant would advance loans for the construction of homes upon the property conveyed by the agreement and would have the property reeonveyed as needed for its development at the same consideration, a total amount of approximately $85,000. It is alleged that defendant has refused to provide the construction loans and to reconvey the property. (2) That in a similar transaction on July 24, 1955, plaintiffs conveyed certain real property and water rights in Boulder to another corporation in exchange for defendant’s promise to pay $120,000, advance construction loans, and reconvey the property as construction progressed. It is alleged that defendant has paid only $96,000 and has refused to provide loans or reconvey the property. Defendant denied the agreements although admitting that several loans were made to the plaintiffs. In pre-trial conference plaintiffs admitted that the only portion of the agreements in writing were the deeds of conveyance. Defendant also pleaded the statute of frauds and further alleged that two general releases were executed by plaintiffs on July 28, 1955, and June 19, 1956. These releases, supported by affidavits and copies, formed the basis for defendant’s motion for summary judgment as to plaintiffs’ first two alleged claims. In opposition to the motion plaintiffs filed affidavits alleging that the releases were executed without their knowledge or consent and without consideration. The order of the trial court requiring clarification was directed to the generalities of these affidavits and required plaintiffs: “ * * * to file another or other affidavits in opposition to defendant Mountain Savings and Loan Association’s Motion for Summary Judgment within 15 days from the date of this Order, clarifying the statements made by plaintiffs in Paragraph 3 of plaintiffs’ affidavit in opposition to Motion by defendant Mountain Savings and Loan Association for Summary Judgment, now on file herein, to-wit: “ ‘Affiants and each of them allege that the said execution of said release as aforesaid was made without their knowledge and consent and without any consideration therefore.’ “stating specifically what occurred with respect to the execution of these releases and stating with particularity why plaintiffs did not know that the releases were being executed or why they were executed without their knowledge and consent, also stating with particularity why the execution of said releases were made without any consideration therefor.” Holding that the affidavit of the plaintiff, Fred K. Wagoner, filed in response to the court’s order did not constitute legal compliance with the order and did not show a disputed fact affecting plaintiffs’ alleged first and second causes, the trial court entered summary judgment in favor of defendant. This appeal followed and questions only the correctness of the trial court’s judgment upon the first and second causes claimed by plaintiffs. The Wagoner affidavit stated: “At no time was there any agreement between this affiant or any of the other plaintiffs and defendant, Mountain Savings and Loan Association, to give the latter a general release on or about the 28th of July, 1955; that any purported release * * * were (sic) obtained by trick and device and without the knowledge of this affiant or of any of said plaintiffs. “It is inconceivable that this affiant or any of the plaintiffs would execute such release due to the fact that only a few days before plaintiffs borrowed the sum of $120,000 from defendant, Mountain Savings and Loan Association as shown by Exhibit “C” of plaintiffs’ amended complaint. And affiant alleges that at the time of said purported release was executed (sic), * * * Mountain Savings and Loan Association, owed to plaintiffs the sum of $120,-000 or thereabouts. That the defendant Mountain Savings and Loan Association now owes to plaintiffs the sum of $24,000, as evidenced by said loans aforesaid. "Affiant further deposes and says that the said Mountain Savings and Loan Association did not pay off all obligations of plaintiffs as alleged in their purported release, Exhibit 'A’, ‘Whereas, certain excess proceeds of said loans will be used to pay off obligations of the undersigned’; in this connection, affiant alleges that there were at the time said purported release was executed, bills and obligations owing by the plaintiffs in the sum of $8,000 or thereabouts and that this affiant and Don L. Wagoner negotiated loans upon their respective homes to pay off said obligations. “Affiant further deposes and says that he nor any of the plaintiffs have any knowledge whatsoever of the execution of said purported release and that the same, if executed, was executed without any consideration whatsoever therefore. ***** “Affiant further deposes and says that on or about the 1st day of July 1956, plaintiffs and defendant, Mountain Savings and Loan Association, entered into an agreement wherein and whereby defendant, Mountain Savings and Loan Association agreed to provide plaintiffs with loans with which to purchase lots * * * “Affiant further sayeth that six of said loans had been approved and were to have been executed by the plaintiffs and said defendant, Mountain Savings and Loan Association, and were ready to be closed whereupon said defendant informed plaintiffs that they would not consummate said loans nor provide any additional loans unless they, plaintiffs, executed the release [of 1956] * * * “That after said release was executed, defendant, Mountain Savings and Loan Association, has failed, refused and does now fail and refuse to make any further loans to plaintiffs as aforesaid although the plaintiffs have been ready and willing to accept such loans. “Affiant further deposes and says that there was no consideration for the execution of said release. “Affiant further sayeth that in order to show the true circumstances under which the said purported releases were executed, it is necessary to have further discovery proceedings and other depositions before trial.” It is clear that either of the releases offered by defendant as a basis for summary judgment is a complete bar to plaintiffs’ action unless the validity of the releases can be successfully questioned. Guldager v. Rockwell, 14 Colo. 459, 24 P. 556; Kruger v. Smith, 82 Colo. 380, 260 P. 97. The burden of proving that the release was invalid or void must be borne by the party which would avoid its operation, Denver & R. G. R. Co. v. Ptolemy, 69 Colo. 69, 169 P. 541. The releases show on their face that they were executed by all of the appellants before a notary public. In each release consideration was formally recited to be “ten dollars and other good and valuable consideration,” the 1955 release amplifying that the Mountain Savings and Loan Association had heretofore accommodated the appellants in making loans, that the Roxwood Company had assumed obligations of the appellants, and that “certain excess proceeds of said loans will be used to pay off obligations” of the appellants. The Supreme Court of Colorado has held that a valid contract may ensue when the only consideration shown on the face of the document is nominal and that the recital of a consideration of ten dollars and other good and valuable consideration must stand in the absence of contrary evidence, Burch v. Burch, 145 Colo. 125, 358 P.2d 1011. Further it has been held that a promise is enforceable if supported by a past consideration rendered at the promissor’s request, Sargent v. Crandall, 143 Colo. 199, 352 P.2d 676. Summary judgment is the proper procedural instrument to bring to the front of formal pleadings the legal effect of the releases. The very purpose of summary proceedings is to pierce the sham of false generality of claims. The futility of a trial upon primary issues is apparent if the validity of the releases is to be ultimately determinative of the case. And the compulsion of Rule 56 cannot be thwarted by the allegation of conclusion or general denial. Bruce Construction Corp. et al. v. United States for use of Westinghouse Electric Supply Co., 5 Cir., 242 F.2d 873; Engl v. Aetna Life Ins. Co., 2 Cir., 139 F.2d 469; 6 Moore’s Federal Practice, page 2255 § 56.17. The correctness of the trial court’s ruling is thus clear. Plaintiffs allege that they had no knowledge of the-releases (but do not deny the acknowledgement of their signatures to them);. that the releases had been obtained by-trick and device (but they offered no-statement which would indicate that evidence of this charge might be produced at trial); that no consideration supported the agreements (ignoring the recitals of' the releases); that there was a failure-of consideration (regardless of the fact that the failures alleged cannot be brought within the language of the instruments) . Plaintiffs, although urged to do so, have offered no- issue of fact in avoidance-of the releases and the judgment of the-trial court is thus affirmed. Question: Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_respond2_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 second 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. ARTMOORE CO. et al. v. DAYLESS MFG. CO., Inc. et al. No. 10819. United States Court of Appeals, Seventh Circuit. Nov. 6, 1953. Rehearing Denied Dec. 14, 1953. Writ of Certiorari Denied March 8, 1954. See 74 S.Ct. 518. Maurice S. Cayne, Benton Atwood, Chicago, Ill., for defendants-appellants. Eugene C. Knoblock, South Bend, Ind., Clarence F. Poole, and Parker & Carter, Chicago, Ill., for plaintiffs-appellees. Before MAJOR, Chief Judge, and FINNEGAN and SWAIM, Circuit Judges. MAJOR, Chief Judge. This action was commenced for the alleged infringement of claims 7 and 10 of patent No. 2,108,727, entitled “Mop,” issued. February 15, 1938, to K. S. Rogers. At that time the patent was owned by Niles Metalcraft Company, a Michigan corporation, but ownership was, during the pendency of the action, transferred to Levant C. Rogers and Dorothy Rogers, co-partners doing business as Niles Metalcraft Company, which was substituted as a party plaintiff. The other plaintiff, Artmoore Company, is the exclusive distributor of the mop manufactured under the patent in suit. Levant C. Rogers is a brother of K. S. Rogers, the inventor of the patent, now deceased. The defendant Leslie Hoffman is an official and manager of the defendant Dayless Manufacturing Company, Inc., which manufactures the alleged infringing mop. The subject matter of the patent relates particularly to a mop employing sponge rubber as a mopping element. The object of the invention as stated in its specifications “is to provide a mop * * * with novel means for extracting water from the mop element * * * in which the carrier for the mopping element serves to guide a shiftable wringing roller assembly * * * a mop with a sponge rubber mop head with respect to which a rigid roller journaling frame is shiftable to extract water and dirt from the sponge rubber by compressing the same in a movement toward the outer end thereof.” The patent contains ten claims but, as stated, only two are in issue. Claim 7 reads: “A mop comprising a handle, a carrier unit having an expansible mopping member therein, a rigid frame unit arching the carrier, said frame unit having rollers at opposite sides thereof in fixed predetermined spaced relation and engaging opposite sides of the mopping member, one of said units being re-ciprocable relative to the other to wring said mopping member between said rollers and means carried by the handle and cooperating with said handle to mount said units and effect said reciprocation.” Claim 10 reads: “A device as set forth in claim 7 wherein the mopping member is formed from a resilient expansible material and normally bulging whereby said frame and rollers will be held by the bulging thereof in inoperative position.” After a rather extended hearing, the District Judge rendered a memorandum opinion, 109 F.Supp. 181, 186, made findings of fact and conclusions drawn therefrom. It was found and concluded that the claims in issue were valid and infringed. The court also found and concluded that defendants’ conduct in connection with the manufacture and sale of the alleged infringing mop constituted “wilful and wanton infringement.” A judgment was entered December 31, 1952, predicated upon the findings and conclusions thus noted, sustaining the validity of the claims in issue and their wanton and wilful infringement by defendants, awarding damages to plaintiffs with reference to a special master for an accounting, and enjoining and restraining defendants in the manufacture or sale of a mop embodying the claims in suit. The judgment also awarded to plaintiffs taxable costs and reasonable attorney fees to be recovered from defendants. From this judgment the appeal comes to this court. While there are certain subsidiary issues, such as the asserted improper admission of testimony and file wrapper estoppel, the principal issues relate to the validity of the claims, their infringement by defendants and, if there be infringement, whether it was wilful and wanton. On the issue of validity the findings of the District Court in abbreviated form are: The patent covers a mop employing a sponge rubber mopping element with novel means for extracting water from the mopping element. The mop includes a unit in which a rubber sponge is clamped firmly in a steel channel, a unit including a rigid bridge having four legs straddling the opposite sides of the channel and journaling two steel pins mounting rubber rolls in a fixed position and in engagement with the opposite sides of the mopping member, a handle, and means including a lever carried by the handle and cooperating with the handle to effect a reciprocal relationship between the units to wring the mopping member between the rollers. The combination and arrangement of the parts causes them to maintain their proper relation when used for cleaning purposes even though no latches and springs are employed; permits a progressive compressive wringing of the flared part of the sponge between fixedly spaced rollers, with the expansion of the sponge assisting return of the rollers and the operating lever to an inoperative position and also serving to hold the same in inoperative position after release of the lever; and the fixed spacing of the rollers by the rigid frame unit assures a uniform and regulated action over an extended period of time. The findings further relate that the patented mop possesses a number of advantages resulting from the combination and arrangement of its parts, and from its novel rigid frame unit providing fixed spacing of the rollers. Plaintiffs’ mop has been in commercial use since 1935, and it embodies the invention of claims 7 and 10 of the Rogers patent. Plaintiffs’ commercial mop sold to the trade for over five times as much as conventional rag string mops, but nevertheless over 2,000,000 have been sold and it has met with acceptance by housewives and other users because of its advantages. Prior to the invention of the patent in suit, no self-wringing mop with attached wringing rollers had been made available to the public. None of the devices of the expired prior art patents relied upon by defendants to anticipate the claims of the patent in suit was practical as a self-wringing mop. On the issue of validity we start, as we must in all patent cases and as the District Court no doubt did, with the presumption of validity which attaches to the grant. This presumption is not an idle gesture, as defendants would have us believe, but is a positive factor which must be overcome by one who asserts invalidity. Radio Corporation of America v. Radio Engineering Laboratories, 293 U.S. 1, 8, 54 S.Ct. 752, 78 L.Ed. 1453; Mumm v. Jacob E. Decker & Sons, 301 U.S. 168, 171, 57 S.Ct. 675, 81 L.Ed. 983. In addition, we have the findings of fact made by the District Court, which we are not at liberty on review to ignore unless clearly erroneous. Federal Rule Civil Practice 52, 28 U.S.C.A. Thus, the defendants are faced with the difficult problem of not only overcoming the presumption in favor of validity but in demonstrating that the .findings of the District Court sustaining validity are clearly erroneous. While the defendants at the trial introduced many prior art patents and publications in an attempt to show that the patent in suit was anticipated^ by the prior art, only five of such patents are relied upon in this court. However, we need mention only three, because they are asserted to be the most pertinent. They are Rogers No. 2,008,615, Kawasaki No. 1,137,760, and Sanguinet No. 1,352,-837, and much stress is laid upon the fact that these three patents were not cited in the patent office. We have read the oral testimony, examined the documentary evidence and physical exhibits, and we are satisfied that the record supports the findings as made. Any doubt which we might entertain is dispelled by the keen analysis made by the District Court (Judge Perry) of the principles embodied in the patent in suit as well as the teachings of the prior art. We discern no reason to ignore the findings thus made, and certainly we cannot hold that they are clearly erroneous. Having .thus concluded, no good purpose could be .served by a (detailed analysis either of the patent in suit.,or. of the prior art relied upon to anticipate. Defendants’ . argument based on these prior art patents, not cited in the patent office, is not convincing. It has been held, and we think with logic, that it is as reasonable to conclude that a prior art patent not cited was considered and cast aside because not .pertinent, as to conclude that it was inadvertently overlooked. Adler Sign Letter Co. v. Wagner Sign Service, 7 Cir., 112 F.2d 264, 267; Charles Peckat Mfg. Co. v. Jacobs, 7 Cir., 178 F.2d 794, 802. In any event, both Kawasaki (issued in 1915) and Sanguinet (issued in 1920) have long since expired and, so far as this record discloses, neither during their lifetime nor since their demise have they been used for any purpose until they were brought forth in an effort to invalidate the patent in suit. It is unrealistic to reason that Rogers did nothing more than might be expected of the skilled mechanic, when neither the owners of such prior art patents nor any member of the public after their expiration discovered that their teachings were worth reducing to practice. Especially is this true in view of the fact that the field was wide open and that Rogers was the first to disclose a sponge rubber mop with a wringing attachment, which was placed in manufacture and on the market. The wide acclaim with which it was received by housewives is proof of. its utility and is at least some indication of its novelty. While those of the prior art disclosed without result, Rogers reduced his disclosure to practice, and with success. The District Court, on the issue of infringement, in its memorandum opinion stated: “In determining whether an accused device or composition infringes a valid patent, resort must be had in the first instance to the words of .the claim. . If the accused matter falls clearly within the claim, infringement is made .out. The .accused device.infringes if it performs, the same function in substantially the same way. Graver Tank & Mfg. Co. v. Linde Air Products Co., 339 U.S. 605, 70 S.Ct. 854, 94 L.Ed. 1097. Details of the accused mop. and its operation have been set out in an earlier portion of this memorandum. It is the view, of this Court that this accused device falls within the claims of the patent in suit; it therefore infringes,the patent. Despite the mathematical refinements of the defendants’ expert witness regarding the effect of the stress of the mop upon the frame unit in the accused device, the Court, as it. views this device, easily observes that it possesses a rigid and not a resilient frame unit. The Court also observes that the rollers are held in a retracted position by the flared sponge mop in the accused device. Upon examination of both devices, the Court arrives at the view that the accused device performs the same function in substantially the same way. In this comparison, the Court observes only one difference between the two devices. The patent in suit illustrates the sponge carrier secured on the end of the handle and the roller carrier connected to the pivoted operating lever. In the accused device, the roller carrier is secured on the end of the handle and the sponge carrier is connected to the pivoted operating lever. This change of parts does not affect the operation of the device as compared to the patented device, nor does it alter the results accomplished by the defendants’ device as compared to those accomplished by the patented device. This is a transposition and reversal of parts, which do not avoid infringement. Chicago Lock Co. v. Tratsch, 7 Cir., 72 F.2d 482, Hunt v. Armour & Co., 7 Cir., 185 F.2d 722.” We think this reasoning of the District Court is justified by the record and that the findings relative to infringement are sufficiently supported. At any rate, we cannot conclude that the findings in this respect are clearly erroneous. It .may be, as argued by defendants, that their mop possesses some advantages .over the mop in suit, but there was little, if any, difference in the end result and it was produced in substantially the same way. And we agree with the District Court that there is no basis in the history of the proceedings in the patent office for the application of the doctrine of file wrapper estoppel. While we have little, if any, difficulty in accepting the findings and conclusions of the District Court on the issue of validity and infringement, we think a more serious question is presented on the issue as to whether such infringement was wilful and wanton. On this issue, the burden was not upon the defendant Hoffman to prove exoneration but upon the plaintiffs to substantiate the charge. It has been held that a bona fide and reasonable belief that a patent was invalid removes the infringement from the class designated as wanton and wilful. Packwood v. Briggs & Stratton Corp., D.C., 99 F.Supp. 803, 808; Pennington Engineering Co. v. Houde Engineering Corp., D.C., 43 F.Supp. 698, 699, 707, affirmed 2 Cir., 136 F.2d 210. See also Associated Plastics Companies v. Gits Molding Corp., 7 Cir., 182 F.2d 1000, 1006. The finding of the District Court on the issue under discussion is in substance that Hoffman was an agent of and selling plaintiffs’ mop in the city of Chicago for practically two years prior to his commencement of the manufacture and sale of the accused mop, and that he commenced such manufacture and sale without giving notice to plaintiffs; that prior to the time when plaintiffs learned of Hoffman’s activities they made a number of referrals of inquiries from prospective purchasers and salesmen; further, that Hoffman as an officer and general manager of Dayless Manufacturing Company directed its activities while still a trusted employee of plaintiff Artmoore Company, with full knowledge of the patent device in suit, and that plaintiffs did not know of such activities and of the relationship between Hoffman and Dayless Manufacturing Company. Defendants challenge, and not without merit, the finding that Hoffman was an agent or employee of plaintiffs and assert that he was merely an independent contractor. In our view, however, it is not too important as to how Hoffman’s relationship with the plaintiffs be characterized. It is not open to dispute but that Hoffman was granted a franchise by plaintiffs for an exclusive territory so that he might develop a clientele for the sale of mops. It is also plain that the dispute or friction which developed between the parties was due to the fact that other distributors of plaintiffs’ mop invaded the territory which had been assigned to Hoffman. Hoffman naturally complained of this invasion of his territory, without any action being taken by plaintiffs. It was at this time or shortly thereafter that Hoffman commenced the manufacture and sale of the infringing mop. The weakness of plaintiffs' position is accentuated by their argument in this court, predicated almost entirely upon an affidavit of Hoffman filed in opposition to a motion for preliminary injunction and introduced in the instant case by plaintiffs as Exhibit 17. The only statement in this affidavit referred to in plaintiffs’ brief is as follows: “That at no time did affiant receive any information from the Artmoore Company concerning the names and locations of other franchise sales representatives or distributors for the Artmoore Company in other locations and areas.” Our attention is then called to testimony alleged to prove the falsity of the quoted statement. Assuming that which we think is doubtful, that is, that such falsity is shown, we are not able to discern its materiality. In fact, it is not contended that this alleged false statement bore any materiality to the issue of Hoffman’s conduct. It is only utilized by plaintiffs to cast doubt or suspicion upon other portions of Hoffman's affidavit. For instance, it is argued that proof of a false statement by Hoffman in the respect shown raises a doubt or question as to the truthfulness of certain material statements found in the affidavit. Even if such be the case, the argument is of no benefit to plaintiffs. Certainly it cannot be thought that plaintiffs sustained the burden of proof by merely casting a doubt upon an exhibit which they offered. More than that, Exhibit 17 was offered by plaintiffs because of one statement, asserted as an admission against interest, to the effect that defendants manufactured and sold the accused mop. It was upon defendants’ insistence that the entire affidavit was offered by plaintiffs, rather than the particular portion referred to. Under these circumstances we do not think plaintiffs can escape the undenied and unimpeaehed statements of Hoffman as contained in the affidavit. The affidavit is lengthy and we need not set it forth in any detail. It is sufficient to state that it contains a plausible and reasonable explanation of Hoffman’s conduct. Among other things it shows that Hoffman after considerable experimentation designed the accused mop, that he consulted a named patent counsel (about whose qualifications there can be no question) for the purpose of ascertaining whether his newly designed mop was an infringement of any unexpired valid patents, and particularly the patent in suit. Further, it shows that in a report dated April 14, 1950, Hoffman was advised by his patent counsel that his construction did not infringe any valid claim of the patent in suit, and that it was only after such report that manufacture of the accused mop was commenced. The record may furnish a basis for criticizing Hoffman. He no doubt would appear in a better light if he had notified plaintiffs of a severance of his relationship with them and of his plans to manufacture his own mop, but under the circumstances we do not think his failure in this respect constitutes wilful and wanton conduct. While there is proof that plaintiffs made a considerable number of referrals to defendants, there is no proof that they were actually received. Assuming, however, that such was the case from the fact that they were placed in the United States mail by plaintiffs, there is no proof that they were utilized by Hoffman. Furthermore, there is no proof that Hoffman sold or represented his mop to be that of plaintiffs, or that he practiced any fraud or deception. Plaintiffs’ suspicion as to Hoffman’s activities appears to have been further aroused from the fact that defendants did not call him as a witness at the trial. We see no reason, however, why defendants should have called Hoffman to testify in explanation of his conduct when that had been given in detail in his affidavit which had been introduced by plaintiffs. While Hoffman’s activities, as we have said, may constitute a proper basis for criticism — they may even raise a suspicion of improper conduct — yet we are of the opinion that they are grossly deficient as the basis for a finding or conclusion that they were wilful and wanton, and particularly is this so when we remember that the burden was upon the plaintiffs to establish the charge. That portion of the judgment adjudicating the validity of the claims in suit and their infringement by the defenders is affirmed. That portion of the judgment adjudicating wilful and wanton infringement is reversed, with directions that the accounting and further proceedings be had consistent therewith. Question: This question concerns the second 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_injunct	D	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on the validity of an injunction or the denial of an injunction or a stay of injunction 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". KROPP FORGE COMPANY, Petitioner, v. SECRETARY OF LABOR and Occupational Safety and Health Review Commission, Respondents. No. 80-2160. United States Court of Appeals, Seventh Circuit. Argued April 13, 1981. Decided Aug. 14, 1981. Robert D. Moran, Washington, D. C., for petitioner. John A. Bryson, Acting Sol. of Labor, U. S. Dept, of Labor, Washington, D. C., for respondents. Before CUMMINGS, Chief Judge, SWYGERT, Senior Circuit Judge, and JAMESON, Senior District Judge. The Honorable William J. Jameson, Senior District Judge of the District of Montana, is sitting by designation. CUMMINGS, Chief Judge. Kropp Forge Company has filed a petition to review an order of the Occupational Safety and Health Review Commission holding that Kropp violated 29 U.S.C. § 654(a)(2) because of noncompliance with an occupational safety and health standard, codified at 29 C.F.R. § 1910.95(b)(3), that provides in full: “In all cases where the sound levels exceed the values shown herein, a continuing effective hearing conservation program shall be administered.” The citation against Kropp charged, and after a hearing the Administrative Law Judge (AU) found that noise levels generated by forging hammers at Kropp’s Chicago steel forging plant continuously exceeded 90 decibels and that Kropp’s hearing conservation program lacked six elements necessary to constitute an effective program as required by the above-quoted standard. The AU further found that the violation was “willful-serious” as charged and assessed a penalty of $5000. The Commission declined Kropp’s petition for discretionary review so that the ALJ’s July 2, 1980, opinion became the final order of the Commission on August 7, 1980, pursuant to 29 U.S.C. § 661(i). We conclude that the standard under which Kropp was cited is unenforceably vague and therefore reverse. As a preliminary matter, we reject Kropp’s contention that all evidence gathered during two December 1978 Occupational Safety and Health Administration (OSHA) inspections should have been suppressed on the ground that it was obtained pursuant to a warrantless search in violation of the Fourth Amendment. Kropp concedes that it granted OSHA permission to enter its premises on these occasions to verify an employee complaint, unrelated to the present charges, concerning excessive exposure to carbon monoxide fumes from fork-lift trucks. At the time of her first visit to the plant, on December 5, 1978, the OSHA compliance officer stated that her inspection would not go beyond the area of the complaint, i. e., the plant’s “KFA Building” where the fork-lift trucks were located. However, after making an initial walk around the building, the compliance officer determined that sampling of noise levels generated by forging hammers located in the KFA Building was also required. Accordingly, the inspection was continued on December 13 and 19, at which times sampling for both carbon monoxide and noise levels was conducted. Kropp argues that its consent was limited specifically to the carbon monoxide investigation so that the noise level samples were taken unlawfully. The record shows, however, that at all times on December 13, the compliance officer was accompanied by Kropp’s Safety Director and that on December 19, she and a second compliance officer were accompanied by the Safety Director and Kropp’s General Manager. Both men had been informed that noise sampling would be conducted, and they raised no objections to the approximately five hours of sampling conducted on each day. Moreover, the Safety Director requested and received the results from the noise sampling taken on both days. While it is true that Kropp refused entry to a compliance officer seeking to continue the noise inspection in January 1979, the only surveys attacked by Kropp are those that took place on December 13 and 19. Since Kropp’s representatives were present at all times during those inspections and did not raise any objections when informed of the intended sampling, any Fourth Amendment objection to those surveys was waived. Marshall v. Western Waterproofing Co., Inc., 560 F.2d 947, 950-951 (8th Cir. 1977); Dorey Electric Co. v. OSHRC, 553 F.2d 357, 358 (4th Cir. 1977). Kropp next argues that the standard which it is said to have violated does not provide “fair warning” of what is required or prohibited and is therefore unenforceably vague under United States v. L. Cohen Grocery Co., 255 U.S. 81, 41 S.Ct. 298, 65 L.Ed. 516, and its progeny. We agree. The rationale of Cohen Grocery has been applied in a number of decisions under the Occupational Safety and Health Act. In Dravo Corporation v. OSAHRC, 613 F.2d 1227, 1234 (3d Cir. 1980), for example, an employer was held not to be subject to sanctions for non-compliance with safety standards “without adequate notice in the regulations of the exact contours of his responsibility.” The court applied the traditional rule that the applicability of penal sanctions in regulations is to be narrowly construed by the judiciary and stated that OSHA regulations must “be written in clear and concise language so that employers will be better able to understand and apply them,” quoting from Diamond Roofing Co. v. OSAHRC, 528 F.2d 645, 650 (5th Cir. 1976). See also Bethlehem Steel Corporation v. OSAHRC, 573 F.2d 157, 161-162 (3d Cir. 1978); 4 Davis, Administrative Law Treatise § 301.2. The regulation in issue here, providing only that “a continuing effective hearing conservation program shall be administered,” misses the mark considerably. Kropp, as noted, was cited for non-compliance because its program lacked the following six elements: 1. Annual audiometric tests. 2. Referral of employees to a physician. 3. Re-tests of employees with significant threshold shifts. 4. Selection and use of hearing protection. 5. Training in use of hearing protectors. 6. Enforcement of proper wearing of hearing protectors. However, the standard does not give any warning to employers that their conservation programs must contain these six elements. Indeed, in proposing a change in the standard in 1974, the Secretary of Labor stated: “The current standard * * * does not explicitly require monitoring of the sound level of the employee’s surroundings nor measurement of the individual employee’s resulting exposure” (39 Fed.Reg. 37,-774 (1974)). Also a 1972 document that the Labor Department published as “A Guide to OSHA Standards,” notes that “[s]ince audiometric tests are not specifically mentioned in the regulations, they are not specifically required” (App. 136). That publication defined “hearing conservation program” in the regulatory standard as referring to “audiometry — periodic checks on the hearing ability of individual employees — and to noise surveys — periodic checks of the noise level in the area in which employees are working” (Idem.). This official definition, which was satisfied by Kropp, does not contain the six elements Kropp was cited as failing to provide. Similarly, an OSHA Field Information Memorandum in 1974 provided that OSHA’s official policy was “not requiring] audiometrie testing” (App. 161; emphasis in original), again contradicting the present citation. Even the compliance officer who conducted the December 1978 inspections of Kropp’s plant testified that the six elements listed in the citation were not required by the then controlling regulation (App. 165-166) nor thought by her to be included in the standard (Tr. 490), and had not been included in a Field Operations Manual until April 20, 1979 (App. 40, 64), whereas the alleged violations here occurred in December 1978. Furthermore, on January 16, 1981, too late for this case, OSHA removed the one-sentence standard at issue in this case and replaced it with a new regulation which, like the 1974 proposal, contains all six elements listed on the citation at issue in this case (46 Fed.Reg. 4162-4164), thus acknowledging that these elements were not previously included in the standard before us. Finally, it is noteworthy that in Secretary of Labor v. B. W. Harrison Lumber Company, 4 BNA OSHC 1091 (1976), an Administrative Law Judge held that 29 C.F.R. § 1910.95(b)(3), the regulation involved here, was unenforceably vague. His vacation of the OSHA noise citation was affirmed by the Commission by a 2 — 1 vote. One of the two majority members affirmed the ALJ on the vagueness ground, whereas the other majority member affirmed the disposition because the citation did not conform to the statutory criteria. Although the Fifth Circuit affirmed the Commission because of the invalidity of the citation, the 1978 opinion of the court held that the citation reference to 29 C.F.R. § 1910.-95(b)(3) was deficient because it merely parroted the words in the regulation that the employer failed to provide “a continuing effective hearing conservation program” and did not inform the employer of what was charged. 569 F.2d 1303, 1309. After this 1978 opinion of Judge Godbold, the Secretary had ample opportunity to amend the regulation, so that it would give proper notice to an employer and finally did so in January 1981. More recently, in Secretary of Labor v. Kraft Food, Inc., 9 BNA OSHC 2040 (March 17, 1981), an ALJ again found 29 C.F.R. § 1910.95(b)(3) unenforceably vague. This decision, in direct conflict with the result in this case, became a final order of the Commission on May 18, 1981. The ALJ rejected Kropp’s vagueness argument because “The standard does not involve criminal or First Amendment activity and if the regulation affords reasonable warning of the proscribed conduct in light of common understanding, it is not constitutionally vague” (App. 5). His decision is erroneous because the pertinent parts of the OSH Act and regulations do impose “penal sanctions,” and the regulation in issue does not give reasonable notice of the conduct said to be prohibited “in light of the common understanding.” Indeed, the ALJ himself acknowledged that the six elements of the hearing conservation program upon which this citation is based were not shown to be the custom and practice in the forging industry, and there was in fact no evidence of the “common understanding.” As in In the Matter of: Establishment Inspection of: Metro-East Manufacturing Company, 655 F.2d 805, 810-812 (7th Cir. 1981), involving a similar OSHA regulation, we find the regulation under which Kropp was charged to be unconstitutionally vague. Therefore, it is unnecessary to consider Kropp’s other arguments as to why the Commission’s order was defective. The order appealed from is reversed. . 29 U.S.C. § 654(a)(2) provides as follows: “(a) Each employer— * * * * * * “(2) shall comply with safety and health standards promulgated under this Act.” Kropp had also been charged with violations of 29 U.S.C. §§ 666(a) and (b) through violations of 29 C.F.R. § 1910.95(b)(1) and 29 C.F.R. § 1910.1001(f)(1). The first of these citations was withdrawn by the Secretary, and the second was vacated by the Administrative Law Judge (App. 16). The petition for review challenged only the Commission’s decision that Kropp had violated 29 U.S.C. § 654(a)(2) by not complying with 29 C.F.R. § 1910.95(b)(3). . The reference is to Table G-16 of 29 C.F.R. § 1910.95 which permits a level of 90 decibels of noise when averaged over an 8-hour work day with higher levels permitted for lesser periods of time. . The six elements listed in the citation were: (a) Regular, annual audiometric tests of employees exposed to sound levels in excess of Table G-16; (b) Employees with a 20 db or greater hearing loss, at any frequency, must be referred to an otolaryngologist or qualified physician; (c) Re-tests must be conducted of employees whose audiograms are considered unreliable or who show significant threshold shifts of 20 db or more at any frequency; (d) Appropriate and adequate hearing protection, as required by 29 C.F.R. § 1910.95(a), must be selected or used based on the noise spectrum present in a working environment in which the sound levels exceed Table G-16; (e) Employees exposed to sound levels exceeding Table G-16 must be trained in the proper use and care of hearing protection; (f) The employer must enforce the use of proper wearing of hearing protection for those employees who are exposed to sound levels exceeding Table G-16. . The noise level samples were obtained by placing audio dosimeters on the hammermen, helpers and other KFA Building employees, who wore the devices while they performed their duties. Sound level meter readings were also taken at the employees’ ear levels to confirm the accuracy of the dosimeter readings. The samples showed that noise levels were at all times above 90 decibels. . Although Kropp moved to suppress all evidence gathered during the December 5, 1978, through May 21, 1979, OSHA investigation of its premises, the Fourth Amendment objection now pressed concerns only evidence gathered during the December 13 and 19 inspections. Kropp did not move to suppress the results of the January 8-9, 1979, inspections showing that noise levels remained in excess of 90 decibels. . See also American Textile Manufacturers Institute, Inc. v. Donovan, — U.S. —, —, 101 S.Ct. 2478, 2505-06, 69 L.Ed.2d 185, where the Supreme Court struck down the wage guarantee provision in OSHA’s cotton dust standard partly because, as here, post-hoc rationalizations of the agency “cannot serve as a sufficient predicate for agency action.” . The Secretary, of course, knew how to promulgate a proper regulation before then, as shown by his detailed 1976 standard for employee exposure to coke oven emissions. American Iron & Steel Institute v. OSHA, 577 F.2d 825, 827 (3d Cir. 1978). If such a technique had been employed in promulgating this sound level regulation, no fatal vagueness problem would have occurred. . The ALJ also relied on the fact that the regulation in dispute had been upheld by an ALJ in a prior OSHA case. See Secretary of Labor v. Boise Cascade Corp., 5 OSHC 1242, 1977-78 OSHD para. 21,714 (1977), appeal filed, No. 77-2201 (9th Cir. May 31, 1977), appeal vacated (9th Cir. September 27, 1979). But see Secretary of Labor v. B. W. Harrison Lumber Company, supra, and Secretary of Labor v. Kraft Food, Inc., supra, with which we agree. . Dravo Corporation, supra, 613 F.2d at 1232; see also Hoffman Construction Co. v. OSAHRC, 546 F.2d 281, 283 (9th Cir. 1976); Diamond Roofing Co. v. OSAHRC, supra, 528 F.2d at 649; Marshall v. Anaconda Company, 596 F.2d 370 (9th Cir. 1979); Continental Can Co., U.S.A. v. Marshall, 455 F.Supp. 1015, 1020 n.4 (S.D.Ill.1978), affirmed, 603 F.2d 590 (7th Cir. 1979). . Since the record below contains no evidence as to the common understanding and practice of those working in the forging industry and even the ALJ concedes that the six-part hearing conservation program for which Kropp was cited was not the common practice in the forging industry, the Secretary’s reliance on our decision in Allis-Chalmers v. OSHRC, 542 F.2d 27 (7th Cir. 1976), is misguided. See Cotter & Company v. OSAHRC, 598 F.2d 911 (5th Cir. 1979). As noted both in Dravo Corporation, supra, and Diamond Roofing, supra, when a regulation fails in its purpose because of vagueness the Secretary should remedy the situation by promulgating a clearer regulation, as he finally did this year, rather than forcing the judiciary to press to the limits by judicial construction. Question: Did the court's ruling on the validity of an injunction or the denial of an injunction or a stay of injunction favor the appellant? A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
sc_casedisposition	E	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed. The information relevant to this variable may be found near the end of the summary that begins on the title page of each case, or preferably at the very end of the opinion of the Court. For cases in which the Court granted a motion to dismiss, consider "petition denied or appeal dismissed". There is "no disposition" if the Court denied a motion to dismiss. LIBERTY MUTUAL INSURANCE CO. v. WETZEL et al. No. 74-1245. Argued January 19, 1976 Decided March 23, 1976 RehNquist, J., delivered the opinion of the Court, in which all Members joined except Blackmun, J., who took no part in the consideration or decision of the case. Kalvin M. Grove argued the cause for petitioner. With him on the briefs were Lawrence M. Cohen, Jeffrey S. Goldman, and Robert A. Penney. Howard A. Specter argued the cause and filed a brief for respondents. Briefs of amici curiae urging reversal were filed by Gordon Dean Booth, Jr., for Alaska Airlines, Inc., et al.; by Edward Silver, Larry M. Lavinsky, Sara S. Portnoy, and Kenneth L. Kimble for the American Life Insurance Assn. et al.; by William Martin and Paul C. Blume for the American Mutual Insurance Alliance et al.; by Thompson Powers for the American Telephone & Telegraph Co.; by Simon H. Rifkind, Frazer F. Hilder, and Edmond J. Dilworth, Jr., for General Motors Corp.; by Richard D. Godown for the National Association of Manufacturers; by Lloyd Sutter for Owens-Illinois, Inc., et al.; and by John G. Wayman and Scott F. Zimmerman for Westinghouse Electric Corp. Briefs of amid curiae urging affirmance were filed by Solicitor General Bork, Assistant Attorney General Pottinger, Brian K. Landsberg, Walter W. Barnett, Abner W. Sibal, Joseph T. Eddins, and Beatrice Rosenberg for the United States et al.; by Francis X. Bellotti, Attorney General, and Barbara J. Rouse and Terry Jean Seligmann, Assistant Attorneys General, for the Commonwealth of Massachusetts et al.; by William J. Brown, Attorney General, and Andrew J. Ruzicho and Earl M. Manz, Assistant Attorneys General, for the State of Ohio; by Henry Spitz and Paul Hartman for the New York State Division of Human Rights; by Ruth Bader Ginsburg, Melvin L. Wulf, and David Rubin for the American Civil Liberties Union et al.; by J. Albert Woll, Laurence Gold, Stephen I. Schlossberg, and John Fillion for the American Federation of Labor and Congress of Industrial Organizations et al.; by Diane Serafín Blank and Nancy E. Stanley for Blank Goodman Kelly Rone & Stanley; by Wendy W. Williams, Rhonda Copelon, Sylvia Roberts, Marilyn Hall Patel, Judith Lonnquist, Gladys Kessler, and Peter Hart Weiner for the Center for Constitutional Rights et al.; and by Mary K. O’Melveny, Jonathan W. Lubell, H. Howard Ostrin, and Charles V. Koons for the Communication Workers of America, AFL-CIO. Mr. Justice Rehnquist delivered the opinion of the Court. Respondents filed a complaint in the United States District Court for the Western District of Pennsylvania in which they asserted that petitioner’s employee insurance benefits and maternity leave regulations discriminated against women in violation of Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended by the Equal Employment Opportunity Act of 1972, 42 U. S. C. § 2000e et seq. (1970 ed. and Supp. IV). The District Court ruled in favor of respondents on the issue of petitioner’s liability under that Act, and petitioner appealed to the Court of Appeals for the Third Circuit. That court held that it had jurisdiction of petitioner’s appeal under 28 U. S. C. § 1291, and proceeded to affirm on the merits the judgment of the District Court. We granted certiorari, 421 U. S. 987 (1975), and heard argument on the merits. Though neither party has questioned the jurisdiction of the Court of Appeals to entertain the appeal, we are obligated to do so on our own motion if a question thereto exists. Mansfield, Coldwater & Lake Michigan R. Co. v. Swan, 111 U. S. 379 (1884). Because we conclude that the District Court’s order was not appealable to the Court of Appeals, we vacate the judgment of the Court of Appeals with instructions to dismiss petitioner’s appeal from the order of the District Court. Respondents’ complaint, after alleging jurisdiction and facts deemed pertinent to their claim, prayed for a judgment against petitioner embodying the following relief: “(a) requiring that defendant establish non-discriminatory hiring, payment, opportunity, and promotional plans and programs; “(b) enjoining the continuance by defendant of the illegal acts and practices alleged herein ; “(c) requiring that defendant pay over to plaintiffs and to the members of the class the damages sustained by plaintiffs and the members of the class by reason of defendant’s illegal acts and practices, including adjusted backpay, with interest, and an additional equal amount as liquidated damages, and exemplary damages; “(d) requiring that defendant pay to plaintiffs and to the members of . the class the costs of this suit and a reasonable attorneys’ fee, with interest; and “(e) such other and further relief as the Court deems appropriate.” App. 19. After extensive discovery, respondents moved for partial summary judgment only as to the issue of liability. Fed. Rule Civ. Proc. 56 (c). The District Court on January 9, 1974, finding no issues of material fact in dispute, entered an order to the effect that petitioner’s pregnancy-related policies violated Title VII of the Civil Rights Act of 1964. It also ruled that Liberty Mutual’s hiring and promotion policies violated Title VII. Petitioner thereafter filed a motion for reconsideration which was denied by the District Court. Its order of February 20, 1974, denying the motion for reconsideration, contains the following concluding language: “In its Order the court stated it would enjoin the continuance of practices which the court found to be in violation of Title VII. The Plaintiffs were invited to submit the form of the injunction order and the Defendant has filed Notice of Appeal and asked for stay of any injunctive order. Under these circumstances the court will withhold the issuance of the injunctive order and amend the Order previously issued under the provisions of Fed. R. Civ. P. 54 (b), as follows: “And now this 20th day of February, 1974, it is directed that final judgment be entered in favor of Plaintiffs that Defendant’s policy of requiring female employees to return to work within three months of delivery of a child or be terminated is in violation of the provisions of Title VII of the Civil Rights Act of 1964; that Defendant’s policy of denying disability income protection plan benefits to female employees for disabilities related to pregnancies or childbirth are [sic] in violation of Title VII of the Civil Rights Act of 1964 and that it is expressly directed that Judgment be entered for the Plaintiffs upon these claims of Plaintiffs’ Complaint; there being no just reason for delay.” 372 F. Supp. 1146, 1164. It is obvious from the District Court’s order that respondents, although having received a favorable ruling on the issue of petitioner’s liability to them, received none of the relief which they expressly prayed for in the portion of their complaint set forth above. They requested an injunction, but did not get one; they requested damages, but were not awarded any; they requested attorneys’ fees, but received none. Counsel for respondents when questioned during oral argument in this Court suggested that at least the District Court’s order of February 20 amounted to a declaratory judgment on the issue of liability pursuant to the provisions of 28 U. S. C. § 2201. Had respondents sought only a declaratory judgment, and no other form of relief, we would of course have a different case. But even if we accept respondents’ contention that the District Court’s order was a declaratory judgment on the issue of liability, it nonetheless left unresolved respondents’ requests for an injunction, for compensatory and exemplary damages, and for attorneys’ fees. It finally disposed of none of respondents’ prayers for relief. The District Court and the Court of Appeals apparently took the view that because the District Court made the recital required by Fed. Rule Civ. Proc. 54 (b) that final judgment be entered on the issue of liability, and that there was no just reason for delay, the orders thereby became appealable as a final decision pursuant to 28 U. S. C. 11291. We cannot agree with this application of the Rule and statute in question. Rule 54 (b) “does not apply to a single claim action .... It is limited expressly to multiple claims actions in which 'one or more but less than all’ of the multiple claims have been finally decided and are found otherwise to be ready for appeal.” Sears, Roebuck & Co. v. Mackey, 351 U. S. 427, 435 (1956). Here, however, respondents set forth but a single claim: that petitioner’s employee insurance benefits and maternity leave regulations discriminated against its women employees in violation of Title VII of the Civil Rights Act of 1964. They prayed for several different types of relief in the event that they sustained the allegations of their complaint, see Fed. Rule Civ. Proc. 8 (a)(3), but their complaint advanced a single legal theory which was applied to only one set of facts. Thus, despite the fact that the District Court undoubtedly made the findings required under the Rule, had it been applicable, those findings do not in a case such as this make the order appealable pursuant to 28 U. S. C. § 1291. See Mackey, supra, at 437-438. We turn to consider whether the District Court’s order might have been appealed by petitioner to the Court of Appeals under any other theory. The order, viewed apart from its discussion of Rule 54 (b), constitutes a grant of partial summary judgment limited to the issue of petitioner’s liability. Such judgments are by their terms interlocutory, see Fed. Rule Civ. Proc. 56 (c), and where assessment of damages or awarding of other relief remains to be resolved have never been considered to be “final” within the meaning of 28 U. S. C. § 1291. See, e, g., Borges v. Art Steel Co., 243 F. 2d 350 (CA2 1957); Leonidakis v. International Telecoin Corp., 208 F. 2d 934 (CA2 1953); Tye v. Hertz Drivurself Stations, 173 F. 2d 317 (CA3 1949); Russell v. Barnes Foundation, 136 F. 2d 654 (CA3 1943). Thus the only possible authorization for an appeal from the District Court’s order would be pursuant to the provisions of 28 U. S. C. § 1292. If the District Court had granted injunctive relief but had not ruled on respondents’ other requests for relief, this interlocutory order would have been appealable under § 1292 (a) (1). But, as noted above, the court did not issue an injunction. It might be argued that the order of the District Court, insofar as it failed to include the injunctive relief requested by respondents, is an interlocutory order refusing an injunction within the meaning of § 1292 (a)(1). But even if this would have allowed respondents to then obtain review in the Court of Appeals, there was no denial of any injunction sought by petitioner and it could not avail itself of that grant of jurisdiction. Nor was this order appealable pursuant to 28 U. S. C. § 1292 (b). Although the District Court’s findings made with a view to satisfying Rule 54 (b) might be viewed as substantial compliance wdth the certification requirement of that section, there is no showing in this record that petitioner made application to the Court of Appeals within the 10 days therein specified. And that court’s holding that its jurisdiction was pursuant to § 1291 makes it clear that it thought itself obliged to consider on the merits petitioner’s appeal. There can be no assurance that had the other requirements of § 1292 (b) been complied with, the Court of Appeals would have exercised its discretion to entertain the interlocutory appeal. Were we to sustain the procedure followed here, we would condone a practice whereby a district court in virtually any case before it might render an interlocutory decision on the question of liability of the defendant, and the defendant would thereupon be permitted to appeal to the court of appeals without satisfying any of the requirements that Congress carefully set forth. We believe that Congress, in enacting present §§ 1291 and 1292 of Title 28, has been well aware of the dangers of an overly rigid insistence upon a “final decision” for appeal in every case, and has in those sections made ample provision for appeal of orders which are not “final” so as to alleviate any possible hardship. We would twist the fabric of the statute more than it will bear if we were to agree that the District Court’s order of February 20, 1974, was appealable to the Court of Appeals. The judgment of the Court of Appeals is therefore vacated, and the case is remanded with instructions to dismiss the petitioner’s appeal. It is so ordered. Mr. Justice Blackmun took no part in the consideration or decision of this case. The portion of the District Court’s order concerning petitioner’s hiring and promotion policies was separately appealed to a different panel of the Court of Appeals. The judgment rendered by the Third Circuit upon that appeal is not before us in this case. See Wetzel v. Liberty Mutual Ins. Co., 508 F. 2d 239, cert. denied, 421 U. S. 1011 (1975). “Judgment upon multiple claims or involving multiple parties. “When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.” Following Mackey, the Rule was amended to insure that orders finally disposing of some but not all of the parties could be appealed pursuant to its provisions. That provision is not implicated in this case, however, to which Mackey’s exposition of the Rule remains fully accurate. We need not here attempt any definitive resolution of the meaning of what constitutes a claim for relief within the meaning of the Rules. See 6 J. Moore, Federal Practice ¶¶ 54.24, 54.33 (2d ed. 1975). It is sufficient to recognize that a complaint asserting only one legal right, even if seeking multiple remedies for the alleged violation of that right, states a single claim for relief. “The courts of appeals shall have jurisdiction of appeals from: “(1) Interlocutory orders of the district courts of the United States, the United States District Court for the District of the Canal Zone, the District Court of Guam, and the District Court of the Virgin Islands, or of the judges thereof, granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions, except where a direct review may be had in the Supreme Court.” “When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order: Provided, however, That application for an appeal hereunder shall not stay proceedings in the district court unless the district judge or the Court of Appeals or a judge thereof shall so order.” Question: What is the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed? A. stay, petition, or motion granted B. affirmed (includes modified) C. reversed D. reversed and remanded E. vacated and remanded F. affirmed and reversed (or vacated) in part G. affirmed and reversed (or vacated) in part and remanded H. vacated I. petition denied or appeal dismissed J. certification to or from a lower court K. no disposition Answer:
sc_respondent	028	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. ARKANSAS v. TENNESSEE No. 33, Orig. Argued January 19, 1970 Decided February 25, 1970 Don Langston, Assistant Attorney General of Arkansas, argued the cause for plaintiff on exceptions to the Report of the Special Master. With him on the brief was Joe E. Purcell, Attorney General. Heard H. Sutton argued the cause for defendant in support of the Report of the Special Master. With him on the brief were David Pack, Attorney General of Tennessee, C. Hayes Cooney, Assistant Attorney General, Harry W. Laughlin, James L. Oarthright, Jr., and J. Martin Regan. Per Curiam. This original action was commenced on October 13, 1967, by the State of Arkansas to settle a boundary dispute with the State of Tennessee. The disputed area extends six miles laterally along the west (Arkansas side) bank of the Mississippi River and encompasses some five thousand acres. This Court's jurisdiction arises under Art. Ill, § 2, of the Constitution of the United States. On January 15, 1968, we appointed, 389 U. S. 1026, Hon. Gunnar H. Nordbye, Senior United States Judge of the District of Minnesota, as Special Master to determine the state line in the disputed area known as Cow Island Bend in the Mississippi River located between Crittenden County, Arkansas, and Shelby County, Tennessee. After conducting an evi-dentiary hearing and viewing the area, the Master filed his Report with this Court recommending that all of the disputed area be declared part of the State of Tennessee. We affirm the Master’s Report. The parties agree that the state line is the thalweg, that is, the steamboat channel of the Mississippi River as it flows west and southward between these States. The Master heard evidence and was presented exhibits and maps which showed that the migration of the Mississippi River northward and west continued until about 1912. At this time an avulsion occurred leaving Tennessee lands on the west or Arkansas side of the new or avulsive river channel. The Master found that thereafter, because of the avulsion, the water in the thalweg became stagnant and erosion and accretion no longer occurred. At this time the boundary between Arkansas and Tennessee became fixed in the middle of the old abandoned channel. This is a classic example of the situation referred to in an earlier case between these States, Arkansas v. Tennessee, 246 U. S. 158, 173, where we said, "It is settled beyond the possibility of dispute that where running streams are the boundaries between States, the same rule applies as between private proprietors, namely, that when the bed and channel are changed by the natural and gradual processes known as erosion and accretion, the boundary follows the varying course of the stream; while if the stream from any cause, natural or artificial, suddenly leaves its old bed and forms a new one, by the process known as an avulsion, the resulting change of channel works no change of boundary, which remains in the middle of the old channel, although no water may be flowing in it, and irrespective of subsequent changes in the new channel.” And, again, id., at 175, “An avulsion has this effect, whether it results in the drying up of the old channel or not. So long as that channel remains a running stream, the boundary marked by it is still subject to be changed by erosion and accretion; but when the water becomes stagnant, the effect of these processes is at an end; the boundary then becomes fixed in the middle of the channel as we have defined it, and the gradual filling up of the bed that ensues is not to be treated as an accretion to the shores but as an ultimate effect of the avulsion.” The exceptions of the State of Arkansas are overruled and the Report of the Special Master is adopted. It is ordered that the Hon. Gunnar H. Nordbye be, and he is hereby, appointed as Commissioner in this case with power to engage and supervise a competent surveyor, or surveyors, to survey the boundary line as recommended in the Master’s Report. The boundary line determined by such survey shall be submitted to the Court by the Commissioner and, if approved, shall be the boundary line between the two States. The costs of this proceeding shall be divided equally between the parties. 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_applfrom	A	What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court). Edwin DENTON, Appellant, v. FIREMAN’S FUND INDEMNITY COMPANY, Appellee. No. 7939. United States Court of Appeals Tenth Circuit. Oct. 28, 1965. Richard L. Banta, Jr., Denver, Colo. (Robert W. Botts and Harry O. Morris, Albuquerque, N. M., on brief), for appellant. William C. Briggs, of Rodey, Dickason, Sloan, Akin & Robb, Albuquerque, N. M., for appellee. Before MURRAH, Chief Judge, and BREITENSTEIN and SETH, Circuit Judges. MURRAH, Chief Judge. The appellant, Edwin Denton, and his deceased business partner brother signed a “General Contract of Indemnity" with appellee, Fireman’s Fund Indemnity Company, whereunder “ * * * each of them for themselves * * * jointly and severally * * ” agreed to indemnify the company for any losses which it “ * * may at any time sustain or incur by reason * * ” of having executed any bond on behalf of Denton a'nd Griggs, another brother’s partnership construction company. After the death of appellant’s business partner brother, the Denton and Griggs partnership defaulted on a number of construction projects, for the performance of which Fireman’s Fund had issued surety bonds. As a result of the default, the surety company was required to pay an agreed amount. In this suit to recover the amount so paid plus interest, costs and attorneys’ fees, the trial court gave judgment for the indemnity company. On appeal Edwin Denton has raised a myriad of points, but we think the trial court properly grouped them under three principal headings: (1) The bond was executed by the indemnitors on the condition that it would also be executed by the principals, Denton and Griggs, who were named in the face of the instrument, and since the principals never executed it, the indemnitors were never bound; that in any event the agreement was executed and delivered with the intention and understanding that it covered a bond or bonds for one specific project on which no losses were alleged or proved. (2) The agreement sued on, if originally valid, was terminated (a) by the death of the co-indemnitor; or (b) by the subsequent words and deeds of the parties. (3) The indemnity company is by its conduct estopped to assert liability on the indemnity agreement. On the point of conditional delivery, the appellant offered testimony to the effect that his brother, J. Earl Denton, brought the prepared indemnity agreement to his place of business and prevailed upon him and his other brother to sign it on the condition that Earl and his business partner Griggs would also execute it and on the further understanding that the agreement was to cover only one specifically named project, to-wit: the Eunice School. If, of course, the appellant executed the agreement on the conditions as stated and the indemnity company was aware , of such conditions, liability under the agreement never attached. See Halliburton Company v. McPheron, 70 N.M. 403, 374 P.2d 286. The fact that Earl Denton and Raymond Griggs were named in the body of the agreement but never signed it was sufficient under New Mexico law to put the company on constructive notice that the indemnitors may have signed on condition that the other brother and his business partner would also sign and complete the instrument. See Hendry v. Cartwright, 14 N.M. 72, 89 P. 309, 8 L.R.A.,N.S., 1056; M. J. O’Fallon Supply Co. v. Tagliaferro, 29 N.M. 562, 224 P. 394; American Surety Company of New York v. Egan, 6 Cir., 62 F.2d 223; 50 Am.Jur., Surety-ship, § 161, p. 1008. The asserted conditional execution was to be sure a question of fact which appellant was under the burden of proving. On this factual issue the trial court credited the company’s witnesses to the effect that the typewritten portion of the contract containing the names of Earl Denton and Raymond Griggs was prepared by the company and submitted to appellant and his deceased brother in the office of the president of a bank in Clovis, New Mexico; that appellant and his brother signed the contract as individuals on the date it bears in the presence of two insurance agents; that it was notarized by one of the agents who personally witnessed the signatures of the appellant and his brother. The court further specifically found that prior to the execution and delivery of this indemnity agreement, Earl Denton and Raymond Griggs, joined by their respective wives, had executed and delivered a general contract of indemnity pursuant to which the company had issued bid and performance bonds for the partnership until they advised Denton and Griggs it would be necessary to secure additional indemnitors; that as a result of the request for additional indemnitors the appellant and his brother executed this indemnity agreement; that it was delivered to the company’s agents by the appellant Edwin Denton with knowledge that the principals Earl Denton and Raymond Griggs had not executed it and that there was no intention expressed at that time or any time material here that Denton and Griggs should execute the agreement; that it was delivered to the company’s agent with the intention that it would be immediately effective without further signatures being necessary. It is sufficient to say that these findings are supported by the evidence, are binding here and are dispositive of the question of conditional delivery. On the question of the scope or coverage, the agreement expressly recites that certain “ * * bonds have heretofore or may hereafter be required by, for and on behalf * * ” of Denton and Griggs, and the “ * * indemnitors, and each of them, for themselves, jointly and severally do hereby covenant and agree * * * ” to become liable for any losses which the “ * * * company shall or may at any time sustain or incur by reason or in consequence of having executed or having procured the execution of any such Bond * * * ”. The appellant does not seem to deny the continuing coverage under the terms of the agreement. He says he did not read it and was not given a copy. But, on the theory of conditional delivery he was permitted to testify at variance with the terms of the agreement to the effect that when his brother asked him to sign the agreement, he told him it was intended to cover one construction contract, to-wit: the “Eunice School”; that after his brother’s death and before the issuance of any bonds under the agreement, he learned for the first time of its continuing effect. Appellant and his brother had previously executed an indemnity agreement for their other brother Earl covering one specific project. Earl was also permitted to testify that he represented to his brother that the agreement in issue was intended to cover his bid on the Eunice School, but that he did not so advise Fireman’s Fund. There was direct and contradictory testimony that at a conference with the insurance agents after the brother’s death in connection with an administrator’s bond appellant was informed that the indemnity agreement was in effect and that it was a "continuing obligation”, and he was a “little amazed at the bond — that the indemnity agreement was a continuing thing and that he was under the impression that it was just for one job that his brother was doing.” From the conflicting testimony the court specifically found that it was never the intention of the company, the appellant or the principals that the agreement “ * * * would be limited to any specific bonds or bonds for any specific projects * * * ”, but that it was intended to “ * * * cover whatever bonds were requested by the principals and executed by the [company] in reliance upon the general contract of indemnity.” This positive and unequivocal finding, as supported by the evidence, is not clearly erroneous, and it means that the agreement was unconditionally delivered and that it became a binding contract, enforceable according to its terms and conditions. This brings us to the question of whether, as contended, the contract was terminated by the death of the brother or the conduct of the parties. It is important to keep in mind that no attempt is made to impose liability on the deceased brother’s estate, and we, therefore, have no occasion to consider the situation involved in American Chain Company v. Arrow Grip Manufacturing Company, 134 Misc. 321, 235 N.Y.S. 228, wherein the indemnity agreement expressly provided that the death of the guarantors should not terminate the liability of the guarantors under the agreement except by giving of notice of the termination as provided in the agreement. In that case all of the guarantors died and the suit sought to impose liability on the estates for transactions occurring after their death. The court characterized the continuing obligation of the administrators and assigns as a series of independent offers severable by each subsequent transaction, and held that since a dead guarantor could make no offer or promise, no liability was imposable on any transaction after death. See A.L.I. Restatement of the Law of Security, § 87; A.L.I. Restatement of the Law of Contracts, § 48. We have no quarrel with this philosophical reasoning, but it has no application here. Although the contract here does not specifically provide that the liability of one co-indemnitor shall continue after the death and termination of the liability of the other, it does, as we have seen, specifically bind “ * * * each of them for themselves * * * jointly and severally * * * ”, and also provides that “ * * * the obligation hereunder shall be continuous; provided, however, that any one of us may give the Company not less than thirty days written notice by registered mail of his desire to terminate this agreement * * * ”. Under these provisions, it seems too plain for doubt that “ * * each signer, individually and severally, remained liable on the indemnity bond to the surety company upon its making a bond in conformity to the provisions of this indemnity contract.” See United States Fidelity & Guaranty Co. v. Wofford, 164 Miss. 597, 144 So. 550, 551. The relationship of the indemnitors to each other is the same as it would have been if each had signed a separate instrument. See German-American State Bank v. Bear, 111 Kan. 193, 206 P. 902; and see generally Corbin on Contracts, Vol. 4, § 937; Williston on Contracts, 3rd Ed., § 316; Am.Jur.2d, Contracts, § 299. On the question of whether the contract was terminated by the conduct of the parties, it seems to be admitted that appellant never gave written notice of his desire to terminate the agreement. His proof on the point is to the effect that after his brother’s death, he met with the local insurance agent for the company to arrange an “administrator’s bond”; that the state agent for the company who was making an investigation preparatory to writing the bond expressed some doubt whether the company would write the administrator’s bond for appellant in view of his continuing obligation under the indemnity agreement; and that after telephone conferences with company offices in Denver and San Francisco it was agreed in substance that the company would write the administrator’s bond and that Denton and Griggs would have to secure other indemnitors; that after discussion with the agent in the presence of appellant’s attorney, he was advised in effect that the surety bond was terminated with the execution of the administrator’s bond. The trial court credited the company’s version of what was said and done at these conferences and specifically found that the negotiations for the administrator’s bond were conducted at the plaintiff’s local office in Portales, New Mexico, at which the company’s state agent was present and participated; that during the course of discussions in connection with the administrator’s bond the appellant was informed by the company’s agent that the death of his brother John did not result in the termination of his liability; that it was a continuing obligation ; that none of the company’s agents ever advised the appellant that the agreement was “cancelled or revoked” or that his liability thereunder terminated. We agree with the trial court. Appellant denies that the company ever relied on the indemnity agreement in its dealings with Denton and Griggs as indicated by the refusal to execute a bond for them about a year later and that it ever notified appellant of the issuance of the bonds or sought any authorization from appellant concerning any such bonds. Attention is also called to the fact that the company failed to notify appellant of the issuance of the bonds or the losses thereunder until 2% years after the execution of the agreement, and that taking the agreement as a continuing offer which lapsed for nonacceptance after a reasonable time, i. e. see American Surety Co. of New York v. Egan, supra; Restatement of Contracts, § 40; Corbin on Contracts, Vol. 1, p. 147, § 36, the indemnity contract is unenforceable with respect to the asserted obligations thereunder. It is the general rule freely accepted and applied in New Mexico to the effect that an uncompensated guarantor has a right to stand on the strict terms of his agreement and that any act or conduct of the principal which increases the risk or prejudices the rights of the guarantor will operate to release his obligations at least to the extent of the prejudice. See Sproul Construction Company et al. v. St. Paul Fire and Marine Insurance Company, 74 N.M. 189, 392 P.2d 339. While New Mexico has not specifically applied this rule to indemnity contracts, it is generally applicable, and in circumstances like these we think the same rule would apply. See American Casualty Company of Reading, Pennsylvania v. Idaho First National Bank, 9 Cir., 328 F.2d 138. The court found from the evidence that while the company never gave notice to appellant of the execution of the various bonds issued to Denton and Griggs, including those forming the basis of this suit, all of the bonds described in the complaint were written at the specific request of the principals, and each bond was signed by the principal partners who became fully obligated thereon; that the appellant did not lack “means of knowledge” as to the continuation of his liability under the agreement and of the bonds being issued by the company in reliance thereon; that he made no effort to ascertain the true status of his liability and did not in fact ever intend to revoke the indemnity agreement either at the time of the negotiations and issuance of the administrator’s bond or thereafter. Strictly construing the indemnity contract in the fullness of the favoritism of the law accorded the appellant indemnitor in this case, we agree with the conclusion of the trial court that the appellant become fully bound to indemnify the company for the agreed amount of losses suffered as a result of the bonds for which liability is sought to be imposed in this suit. The conclusive findings of the trial court are completely dispositive of the estoppel issue. We agree with the trial court that the company was not by its conduct estopped from asserting its claim. Judgment is affirmed. Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)? A. Trial (either jury or bench trial) B. Injunction or denial of injunction or stay of injunction C. Summary judgment or denial of summary judgment D. Guilty plea or denial of motion to withdraw plea E. Dismissal (include dismissal of petition for habeas corpus) F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict) G. Appeal of post settlement orders H. Not a final judgment: interlocutory appeal I. Not a final judgment: mandamus J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment K. Does not fit any of the above categories, but opinion mentions a "trial judge" L. Not applicable (e.g., decision below was by a federal administrative agency, tax court) Answer:
songer_initiate	B	What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff. SPAUGH et al. v. UNITED STATES. No. 7650. Circuit Court of Appeals, Ninth Circuit. May 20, 1935. Frank P. Doherty and William R. Gallagher, both of Los Angeles, Cal., for appellant Spaugh. Ames Peterson, of Los Angeles, Cal., for appellant Curry. Peirson M. Hall, U. S. Atty., and Ernest R. Utley, Asst. U. S. Atty., both of Los Angeles, Cal. Before WILBUR and GARRECHT, Circuit Judges. GARRECHT, Circuit Judge. Appellant J. V. Spaugh, together with appellant Harry M. Curry and eleven others, was indicted on a charge of conspiracy to make, forge, and counterfeit certain orders and writings, to wit, United States Liberty Loan bonds. This indictment, for convenience, will be hereafter referred to as the “conspiracy indictment.” Six other indictments were returned against several groups of defendants named in the conspiracy indictment. The indictments contained various counts charging different groups of defendants therein named with the substantive offenses of forging Liberty bonds and uttering the same, but in none of which was appellant Spaugh named as defendant. The conspiracy indictment was consolidated for- trial with the six other indictments in which appellant Spaugh was not mentioned. This action of the court was objected to by appellant Spaugh and exception saved and the ruling made assigned as error. As appellant Curry is not concerned with this contention, and as the judgment of conviction must be reversed on other grounds, and because we have before us none of the evidence adduced at the trial, we refrain from expressing any opinion on this assignment of error. After the jury had been deliberating for forty-six hours, the court recalled the jury. Thereupon the following took place: “The Court: The Court desires to address itself to the jury, through the Foreman, and will ask the Foreman to be careful not to report the nature of any verdict, if any, which thus far may have been agreed upon, but rather to confine the answers to the specific matters mentioned in the questions. “There are a number of cases in which the jury is considering the rendition of separate verdicts and, in addition, in all but one of the cases there are several counts or separate and distinct charges involved. “We will ask the foreman to indicate whether the jury has finished balloting. “Foreman Person: Not in all cases. “The Court: Then, we will ask counsel whether there is any objection to inquiring as to which cases balloting is still being taken on. “Mr. Doherty: I have no objection, your Honor, of inquiring of the jury as to which cases they are still considering and upon which they have not as yet reached a verdict. “Mr. Ray: No objection on the part of defendant Clough, your Honor.” After the court had ascertained as to which indictments the jury had finished balloting and those in which the jury had not agreed, the court proceeded to instruct the jury as follows: “The Court: In view of the fact that the trial of this case has occupied approximately three weeks, and also inasmuch as the instructions given by the Court to the jury have occupied approximately two hours or more in delivering the same, and having in mind also the fact that the jury was in court Saturday night, in the presence of the defendants and counsel, and propounded a number of questions, which at that time I answered, and likewise some additions made to the instructions, we decided to ascertain whether the Court can be of any assistance to the jurors by way of any further instructions such as explaining some particular point of law, the meaning of any particular question of law, the application of any of the evidence to any particular question of law? And in the same connection the court will give the jury this further instruction: “The only mode, provided by our constitution and laws for deciding questions of fact in criminal cases, is by the verdict of a jury. In a large proportion of cases, and perhaps, strictly speaking, in all cases, absolute certainty cannot be attained or expected. Although the verdict to which a juror agrees must of course be his own verdict, the result of his own convictions, and not a mere acquiescence in the conclusion of his fellows, yet, in order to bring twelve minds to a unanimous result, you must examine the questions submitted to you with candor, and with a proper regard and deference to the opinions of each other. You should consider that the case must at some time be decided; that you are selected in the same manner, and from the same source, from which any future jury must be; and there is no reason to suppose that the case will ever be submitted to twelve men more intelligent, more impartial, or more competent to decide it, or that more or clearer evidence will be produced on the one side or the other. And with this view, it is your duty to decide the case, if you can conscientiously do so. In order to make a decision more practicable, the law imposes the burden of proof on one party or the other, in all cases. In the present case, the burden of proof is upon the United States to establish every part of it, beyond a reasonable doubt; and if, in any part of it, you are left a reasonable doubt, the defendant is entitled to the benefit of such doubt. And, in conferring together, you ought to pay proper respect to each other’s opinions, and listen, with a disposition to be convinced, to each other’s arguments. And, on the one hand, if a majority are for acquittal, the minority ought seriously to ask themselves, whether they may not reasonably, and ought not to doubt the correctness of a judgment, which is not concurred in by most of those with whom they are associated; and possibly distrust the weight or sufficiency of that evidence which fails to carry conviction to the minds of their fellows. And, on the other hand, if much the larger number of your panel are for a conviction, a dissenting juror should likewise consider whether a doubt in his own mind is a reasonable one, which malees no impression upon the minds of so many men, equally honest, equally intelligent with himself, who have heard the same evidence, with the same attention, with an equal desire to arrive at the truth, and under the sanction of the same oath.” Defendants J. V. Spaugh and Harry M. Curry duly excepted to the following portion of the foregoing instruction: “And, on the other hand, if much the larger number of your panel are for a conviction, a dissenting juror should likewise consider whether a doubt in his own mind is a reasonable one, which makes no impression upon the minds of so many men, equally honest, equally intelligent with himself, who have heard the same evidence, with the same attention, with an equal desire to arrive at the truth, and under the sanction of the same oath.” Thereafter, and while the jury were still deliberating as to the guilt or innocence of the defendants Harry M. Curry and J. V. Spaugh and before the jury had reached a verdict as to said defendants, the court made .the following inquiry of the jury : “Without indicating just how many ballots have been for one way and how many ballots the opposite way, that is to say, without indicating just how many stand in any particular way, either for acquittal or otherwise, but merely giving the numbers voting one way as against the other way; for example, if in one case stands 6 to 6, without indicating anything further, or if another case the vote stand's 8 to 4, without indicating how many stand for acquittal and how many for conviction, may we ask you to indicate first of all, how many ballots have been taken in 11,752, which is the so-called conspiracy charge. “Foreman Person: Your Honor, the different number of ballots have been taken separately against the different defendants. “The Court: Well, then, coming now to the last balloting, will you indicate the numerical division, without indicating how many voted for acquittal and how many .voted otherwise.” The defendants J. V. Spaugh and Harry M. Curry thereupon obj ected to' the said inquiry of the court, in which the court asked the jury to indicate the numeri■cal division of the jury and how the jury was divided on the balloting. Said objection was overruled, and defendants J.-V. Spaugh and Harry M. Curry thereupon duly excepted to said ruling. The court then made further inquiry of the jury as follows: “The Court: Now, turning to case No. 11,752, may we inquire as to any balloting that still remains to be done, without indicating as to which defendant, but as to any balloting that still remains to be done — the numerical division with respect to such ballot.” The defendants J. V. Spaugh'and Harry M. Curry thereupon objected to the said inquiry of the court, in which #the court asked the jury to indicate the numerical division of the jury and how'the jury was divided on the balloting. Said objection was overruled, and defendants J. V. Spaugh and Harry M. Curry thereupon duly excepted to said ruling. “Foreman Person: In the case of one defendant, the ballot is ten to two; in the case of another defendant it is eleven to one. “The Court: Coming now to case No. 11,757, will you tell us the numerical division as to count 1 ? “Foreman Person: Eleven to one. “The Court: Count 2? “Foreman Person: Eleven to one. “The Court: Count 3? “Foreman Person: Eleven to one. “The Court: Count 4? “Foreman Person: Eleven to one. “The Court: Count 5? “Foreman Person: Eleven to one. “The Court: That is all to which balloting is still in progress.” The defendants J. V. Spaugh and Harry M. Curry then and there objected to each and every inquiry made by the court as to how the jury wfere divided, which said objection was overruled, and to which ruling the defendants J. V. Spaugh and Harry M. Curry then and there duly excepted. The verdicts are all dated, and the dates clearly disclosed that at the time the court made the inquiry of the jury as to the numerical division verdicts had not been arrived at as to these appellants. The action of the court was error. In Brasfield et al. v. U. S., 272 U. S. 448, 47 S. Ct. 135, 71 L. Ed. 345, and Burton v. U. S., 196 U. S. 283, 25 S. Ct. 243, 49 L. Ed. 482, which were followed by this court in Jordan v. U. S., 22 F.(2d) 966, 967, and Peterson v. U. S., 213 F. 920, the holding was that such inquiry itself should be regarded as ground for reversal. Judge Rudkin, in the opinion in Jordan v. U. S., supra, quoting from Brasfield v. U. S., supra, said: “ * * * Such procedure serves no useful purpose that cannot be attained by questions not requiring the jury to reveal the nature or extent of its division. Its effect upon a divided jury will often depend upon circumstances which cannot properly he known to the trial judge or to the appellate courts and may vary widely in different situations, but in general its tendency is coercive. It can rarely be resorted to without bringing to bear in some degree, serious, although not measurable, an improper influence upon the jury, from whose deliberations every consideration other than that of the evidence and the law as expounded in a proper charge, should be excluded. Such a practice, which is never useful, and is generally harmful, is not to be sanctioned.” The judgment against appellant Curry in cause No. 11,757-H and the judgment against both appellants in cause No. 11,-752-H are reversed and cases remanded for new trial. 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_othcrim	E	What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule for the defendant on grounds other than procedural grounds? For example, right to speedy trial, double jeopardy, confrontation, retroactivity, self defense." This includes the question of whether the defendant waived the right to raise some claim. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless". C.H. SANDERS CO., INC. and Bristol Construction Corp., a Joint Venture, Appellees/Cross-Appellants, v. BHAP HOUSING DEVELOPMENT FUND COMPANY, INC., and Samuel R. Pierce, Secretary of Housing and Urban Development, Defendants, Samuel R. Pierce, Secretary of Housing and Urban Development, Appellant/Cross-Appellee. Nos. 1016, 1017, Dockets 89-6249, 89-6251. United States Court of Appeals, Second Circuit. Argued March 21, 1990. Decided May 8, 1990. Frederick Cohen, New York City (John S. Wojak, Jr., and Ross & Cohen, New York, N.Y., on the brief), for appellees C.H. Sanders Co. and Bristol Const. Corp., a Joint Venture. Samuel Kirschenbaum, Garden City, N.Y. (Ira Levine, and Kirschenbaum & Kir-schenbaum, Garden City, N.Y., on the brief), for appellant Samuel R. Pierce in No. 89-6249. Thomas A. McFarland, Asst. U.S. Atty., Brooklyn (Andrew J. Maloney, U.S. Atty., Brooklyn, N.Y., on the brief), for appellant Samuel R. Pierce in No. 89-6251. Before TIMBERS, NEWMAN and PRATT, Circuit Judges. TIMBERS, Circuit Judge: The defendants in the district court in this action were Samuel R. Pierce, the Secretary of the United States Department of Housing and Urban Development (“the Secretary” or “HUD”) and BHAP Housing Development Fund Company, Inc. (“BHAP”), a non-profit corporation organized for the purpose of constructing a facility for the elderly in Brooklyn. The Secretary is the sole appellant/cross-appel-lee. The plaintiffs in the district court were C.H. Sanders Co., Inc. and Bristol Construction Corp. (collectively “Sanders”), a joint venture; they are the appel-lees/cross-appellants in this Court. The Secretary appeals from that part of a judgment entered September 25, 1989, in the Eastern District of New York, I. Leo Glasser, District Judge, which granted Sanders’ motion for summary judgment on its first cause of action which sought foreclosure of a mechanic’s lien filed by Sanders. The judgment also denied the Secretary’s motion for summary judgment which would have dismissed Sanders’ entire complaint. Sanders cross-appeals from that judgment to the extent that it denied Sanders’ motion for summary judgment on its second cause of action which sought direct enforcement of an arbitration judgment against HUD and granted the Secretary’s cross-motion for dismissal of that claim for lack of subject matter jurisdiction. On appeal, HUD claims that granting summary judgment on the lien foreclosure claim is error due to several outstanding issues of material fact and due to the court’s flawed construction of the New York Lien Law. On cross-appeal, Sanders claims that, not only is there federal subject matter jurisdiction over the second cause of action relating to the arbitration award, but that HUD has consented to the suit in the district court. For the reasons which follow, we affirm on HUD’s appeal which relates to the lien foreclosure claim, and we reverse and remand on Sanders’ cross-appeal which relates to enforcement of the arbitration judgment. I. We summarize only those facts and prior proceedings believed necessary to an understanding of the issues raised on appeal. This action arises out of the construction and renovation of a federally funded housing project known as the Brooklyn Home for Aged People (“the Project”), located at 1095 St. John’s Place, Brooklyn, New York, which BHAP owned. BHAP is essentially a non-profit, assetless, community organization organized specifically for the Project. It obtained funding for the Project from HUD under § 202 of the National Housing Act, 12 U.S.C. § 1701q (1988), pursuant to which HUD agreed to provide a low-cost mortgage in the amount of $4,364,100. In return, HUD received a security interest in the property and retained substantial control over the Project. To implement their agreements, on or about December 14, 1981 BHAP and HUD executed a building loan agreement, building loan mortgage, and mortgage note and regulatory agreement. That same day, simultaneous with the execution of the agreements referred to above, BHAP entered into a construction contract (“the Agreement”) with Sanders as general contractor, under which Sanders agreed to furnish all services and materials necessary to complete the Project. The Agreement, which was prepared by HUD, required that all claims and disputes be resolved by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association. Although the Secretary was not a party to the Agreement, HUD was given substantial control over the Project, including the right to interpret the Agreement itself and “to determine compliance therewith.” In addition, BHAP agreed to use HUD forms as a condition for obtaining the HUD mortgage loan. Sanders worked on the project for several years, although the actual date that it halted work is unclear. In any event, on January 17, 1986, Sanders requested arbitration, claiming that BHAP breached the Agreement. Sanders sought to recover $1,848,010 claimed to be due under the Agreement, representing a contract balance ($212,045), extra work performed at the request of BHAP ($121,353), and additional costs for labor and materials furnished to the Project. BHAP counterclaimed for $1,974,506.94, claiming that the work performed by Sanders was inadequate and defective. On January 21, 1986, Sanders filed a Notice of Mechanic’s Lien in the amount of $1,161,528 in the Kings County clerk’s office, pursuant to N.Y.Lien Law §3 et seq. (McKinney’s 1966). Sanders could not compel HUD to submit to arbitration as HUD was not formally a party to the contract. Prior to the arbitration hearings, however, by letters dated August 26, 1986, October 8, 1986, and November 6, 1986, counsel for Sanders advised HUD of the scheduled hearings and requested HUD’s participation therein, stating that HUD could be held liable for any arbitration award rendered against BHAP. HUD declined. It stated that it considered the arbitration to be “essentially a private dispute” between BHAP and Sanders. On April 23, 1987, after six hearings, the arbitrators found for Sanders and awarded $406,000, plus interest from April 1, 1985. In a decision dated October 1, 1987, the New York Supreme Court confirmed the award, which totaled $502,328.86 with interest and costs. In November 1987, Sanders commenced the instant action. The complaint alleged two causes of action. The first sought foreclosure of Sanders’ mechanic’s lien in the amount of the arbitration award, claiming priority over HUD’s mortgage because of HUD’s admitted failure to comply with the provisions of the lien law. The second cause of action sought direct enforcement of the arbitration award against HUD, claiming that, since BHAP was organized as a “shell” corporation without assets, HUD was liable under general equitable principles. On April 8, 1988, Sanders moved for summary judgment on the ground that there were no genuine issues of material fact relevant to the disposition of either cause of action. HUD cross-moved for summary judgment, seeking dismissal of both causes of action. By a separate cross-motion, HUD sought dismissal of the second cause of action on the ground that the district court lacked subject matter jurisdiction. On July 20,1989, the district court granted summary judgment in favor of Sanders on the first cause of action, holding that Sanders was entitled to foreclose on its lien in the amount of the arbitration award as confirmed. It based its decision on its finding that BHAP in effect was HUD’s alter ego. The court dismissed the second cause of action, holding that it lacked subject matter jurisdiction to entertain Sanders’ direct claim against HUD. This appeal followed. II. We turn first to the question whether the district court erred in dismissing Sanders’ second cause of action for lack of subject matter jurisdiction. At the outset, we observe that an action against the sovereign is properly before the district court only if there was both a grant of subject matter jurisdiction and a valid waiver of sovereign immunity. Falls Riverway Realty v. City of Niagara Falls, 754 F.2d 49, 54 (2 Cir.1985); S.S. Silberblatt, Inc. v. East Harlem Pilot Block — Building 1 Housing Development Fund Co., 608 F.2d 28, 35 (2 Cir.1979). We consider these issues separately. (A) We must determine whether the district court had subject matter jurisdiction to consider Sanders' second cause of action for direct enforcement against HUD of the state court judgment which confirmed the arbitration award. Sanders contends that the district court had “federal question” jurisdiction pursuant to 28 U.S.C. § 1331 (1988). It asserts that enforcement of the judgment claim “arises under” § 202 of the National Housing Act, 12 U.S.C. § 1701q (1988), and requires the application of federal common law. We agree. Our analysis begins with the substance of Sanders’ second cause of action. Sanders sought a monetary recovery from HUD in the amount of the state court judgment on the ground that, since HUD was liable for the debts of its assetless creation (BHAP), it was bound by the award rendered in the arbitration proceeding between BHAP and Sanders. Under federal common law, Sanders contended, it had “equitable rights generated by HUD’s course of activities pursuant to federal statutes, including the contracts it has sponsored, and prescribed for others, as a condition of federal aid.” Trans-Bay Engineers and Builders, Inc. v. Hills, 551 F.2d 370, 377 (D.C.Cir.1976). The district court granted the Secretary’s motion to dismiss the enforcement claim, holding that it lacked subject matter jurisdiction. The court correctly rejected 12 U.S.C. § 1702 as a basis for subject matter jurisdiction over the enforcement claim. Séction 1702, as the court observed, is only a waiver of sovereign immunity and not an independent grant of jurisdiction. Mundo Developer, Ltd. v. Wicklow Associates, 585 F.Supp. 1324, 1327 & n. 6 (S.D.N. Y.1984) (citing cases). In considering federal question jurisdiction under 28 U.S.C. § 1331, however, the court merely stated that we have declined to follow the “equitable rights” theory embraced by the D.C. Circuit in Trans-Bay, supra, 551 F.2d at 370. See Falls Riverway, supra, 754 F.2d at 54 n. 3 (declining to follow this “vague formulation”). But our analysis does not end there. The gist of Sanders non-contractual claim is that HUD failed in its duties under 12 U.S.C. § 1701q, and as a result was unjustly enriched. Restitution for unjust enrichment is not provided by federal statute. Its availability is part of the federal common law relating to statutory violations. Silberblatt, supra, 608 F.2d at 37; Trans-Bay, supra, 551 F.2d at 381. While a “vague formulation” of equitable rights alone will not confer subject matter jurisdiction, Falls Riverway, supra, 754 F.2d at 54 n. 3, that is not the case here. Rather, Sanders, “simply by alleging a cause of action, not patently frivolous on its face, that purportedly arises under a federal statute, ha[s] made allegations sufficient to sustain subject matter jurisdiction in the district court.” Id.; see also Bell v. Hood, 327 U.S. 678, 682 (1946). Although we have declined to follow Trans-Bay’s “equitable rights” theory to invoke federal question jurisdiction, Falls Riverway, supra, 754 F.2d at 54 n. 3, we have permitted the assertion of quantum meruit claims against HUD where the plaintiff was in privity with only the HUD-assisted shell corporation and where subject matter jurisdiction otherwise was present. Silberblatt, supra, 608 F.2d at 37 (citing Trans-Bay); see also Niagara Mohawk Power Corp. v. Bankers Trust Co. of Albany, N.A., 791 F.2d 242, 244-45 (2 Cir.1986) (applying Silberblatt). In Silberblatt, since jurisdiction was predicated on the federal defendant removal statute, 28 U.S.C. § 1442(a)(1) (1988), we found it unnecessary to address the question whether there was jurisdiction under § 1331. Our decision in Silberblatt, however, makes clear that Sanders’ claim based on unjust enrichment is plausible and thus is sufficient to invoke federal question jurisdiction. We hold that the district court had federal question jurisdiction over Sanders’ second cause of action, arising under federal common law and the statute authorizing the loan. 12 U.S.C. § 1701q. (B) We turn now to the question, not reached by the district court, whether HUD has consented to suit in the district court. Spe-eifically, the question is whether the Tucker Act, 28 U.S.C. §§ 1846, 1491 (1988), displaces an otherwise valid exercise of federal question jurisdiction in the district court and places jurisdiction over Sanders’ direct claim against HUD exclusively in the United States Claims Court. The Secretary’s contention on Sanders’ cross-appeal is that it does. The Tucker Act provides both subject matter jurisdiction and sovereign immunity for non-tort claims “against the United States ... founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, or upon any express or implied contract with the United States.” § 1346(a)(2). On its face, the Tucker Act permits such actions in the district courts only when the amount sought is $10,000 or less. Id. The Claims Court, however, may entertain such actions without regard to the amount in controversy. § 1491(a)(1). The Secretary reads this statutory scheme to place exclusive jurisdiction over Sanders’ enforcement of judgment claim in the Claims Court. We disagree. We hold that an action (regardless of the amount sought) may be commenced under § 1331 in the district court provided there is an independent waiver of sovereign immunity outside the Tucker Act. The Tucker Act does not expressly state that the jurisdiction of the Claims Court is exclusive. We find that omission significant. In reaching our decision, we find support in the analysis in Ghent v. Lynn, 392 F.Supp. 879 (D.Conn.1975) (Newman, J.). Judge Newman explained the simple reason many courts have held that actions against the government for an amount above $10,000 are within the exclusive jurisdiction of the Claims Court: “Most claimants against the government rely on the Tucker Act for the waiver of sovereign immunity that would otherwise preclude their suits. When such a claimant attempts to sue in a district court ... he encounters the Tucker Act’s $10,000 maximum, and his claim therefore fails as an unconsented suit against the sovereign. Hence it is commonly said that suits against the government for more than $10,000 are in the exclusive jurisdiction of the Court of Claims.... In fact, the jurisdiction of the Court of Claims is not exclusive; rather, there is rarely any statute available that waives sovereign immunity for suits in the district court, other than the Tucker Act with its $10,000 limit.” Id. at 881 (citations omitted) (emphasis added); see also Falls Riverway, supra, 754 F.2d at 55 n. 4 (agreeing with this aspect of the Ghent analysis). In other words, the Tucker Act provides merely one limited waiver of sovereign immunity. If Sanders were relying on the grant of jurisdiction provided by the Tucker Act, it would encounter the $10,000 limitation on actions commenced in district courts and its enforcement of the judgment claim necessarily would fail. § 1346(a)(2). Since we have held that the district court has § 1331 jurisdiction over Sanders’ claim, however, it may be asserted in the district court provided there is an independent waiver of sovereign immunity outside of the Tucker Act. Our decisions in B.K. Instrument, Inc. v. United States, 715 F.2d 713 (2 Cir.1983), and Estate of Watson v. Blumenthal, 586 F.2d 925 (2 Cir.1978), relied upon by the Secretary, do not change our analysis. In Watson, we said that jurisdiction of the Claims Court over plaintiff’s contract claim was exclusive, but we were careful to say “on these facts exclusive.” 586 F.2d at 929. That is because, other than the Tucker Act, no other statute waived sovereign immunity. In B.K. Instrument, we dealt with the question whether the 1976 amendment to the Administrative Procedure Act (“APA”), 5 U.S.C. § 702 (1988), constituted a waiver of sovereign immunity. We held that it did. 715 F.2d at 724-25. That provision provided, however, that, if “any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought,” the waiver would be inapplicable. We then considered whether plaintiff’s action could have been brought in the Claims Court and concluded it could not. Id. at 726-27. Within that context, Judge Friendly suggested in dictum that the combination of § 1491(a)(1) and § 1346(a)(2) “could well be considered an implied proscription” against bringing a suit in the district court that could have been brought in the Claims Court. Id. at 726. He suggested this only as an arguable position. Accordingly, we find that B.K. Instrument, which considered only the claim that § 702 of the APA waived sovereign immunity, does not control here. (C) We next must determine whether there was a waiver of sovereign immunity by HUD outside of the Tucker Act. Sanders suggests two sources. We need address only one. Section 1701q, the statute which confers subject matter jurisdiction in this action, vests in the Secretary “the functions, powers, and duties set forth in section 402 of the Housing Act of 1950.” § 1701q(b). Section 402 contains a “sue and be sued” clause. Originally § 402 was codified at 12 U.S.C. § 1749a. In 1986 the section (which relates to a college housing loan program) was transferred to the Education title of the United States Code. The “sue and be sued” clause is now located at 20 U.S.C. § 1132g-l(c)(2) (1988). The fact that § 402 was transferred is not relevant to our holding. Indeed, even had § 402 been repealed subsequent to its incorporation in § 1701q(b), that repeal would be irrelevant absent any indication by Congress that its action was intended to alter the remaining statute as well. Hassett v. Welch, 303 U.S. 303, 314 (1938). We hold that the Secretary’s immunity to suit in the district court has been waived. (D) We remand this second cause of action to the district court for a determination of the merits. In addition to the foregoing, we suggest one further instruction. If the court determines that HUD is liable for the arbitration award, it need not engage in a further analysis of the source of the funds that would be used to satisfy its judgment —i.e., from general Treasury funds or funds within the discretion and control of the Secretary. The court should simply direct the Secretary to satisfy the judgment out of funds that are within his control, assuming, of course, that such funds exist. It is only as to such funds that the Secretary’s immunity has been waived. See F.H.A. v. Burr, 309 U.S. 242, 250-51 (1940); Silberblatt, supra, 608 F.2d at 36. III. This brings us to the lien cause of action. In contrast to the enforcement cause of action, there is no serious dispute here that there is both subject matter jurisdiction and waiver of immunity. 28 U.S.C. § 2410 (1988). We address briefly HUD’s various arguments in support of its contention that the district court erred in permitting Sanders to foreclose on its mechanic’s lien. HUD asserts that there are genuine issues of material fact as to the elements necessary to establish a valid mechanic’s lien. It argues that summary judgment was improper because its defenses were based in part on documentary evidence in Sanders’ possession. It fails to demonstrate, however, that such evidence would change the result. Its assertions are merely conclusory and must be rejected. Section 10 of the Lien Law requires that a mechanic’s lien be filed within eight months from the date the lienor last furnished materials. This provision has been construed to include remedial work if done pursuant to the contract, but not if done pursuant to a later guarantee to repair. Since there was no such guarantee, Sanders’ work, which continued at least until June 5, 1985, ended less than eight months prior to the January 21, 1986 filing date. HUD also asserts that the lien is invalid because Sanders intentionally exaggerated its amount when it was filed. In New York, merely filing a lien that is greater than the eventual judgment will not invalidate the lien; the lienor must know that the amount is false and must intend to exaggerate. Howdy Jones Constr. Co. v. Parklaw Realty, Inc., 76 A.D.2d 1018, 429 N.Y.S.2d 768 (3 Dep’t 1980), aff'd, 53 N.Y.2d 718, 439 N.Y.S.2d 354, 421 N.E.2d 846 (1981). In this light, HUD’s proof fails even to hint at willfulness. HUD makes an assertion that relates to the preceding cause of action; i.e., whether HUD is bound by the arbitration award and therefore by the lien. The district court’s holding that HUD is bound by both is correct. HUD is collaterally es-topped from challenging the award. In New York, collateral estoppel requires (1) identity of issues in the two proceedings, and (2) that the party sought to be es-topped had a full and fair opportunity to contest the prior determination. Kaufman v. Eli Lilly and Co., 65 N.Y.2d 449, 455-56, 492 N.Y.S.2d 584, 588, 482 N.E.2d 63, 67 (1985). With respect to the first prong, it is clear that the issue is identical: liability under the building contract. With respect to the second prong, a party will be bound if the issue previously was contested vigorously by its privy. Gramatan Home Investors Corp. v. Lopez, 46 N.Y.2d 481, 486, 414 N.Y.S.2d 308, 311, 386 N.E.2d 1328, 1331 (1979). The district court not only found that HUD and BHAP were in privity, but that they were alter egos. This was based on earlier decisions that held similarly with respect to HUD control of assetless, non-profit shell corporations. E.g., Niagara Mohawk Power Corp. v. Bankers Trust Co., 791 F.2d 242, 245 (2 Cir.1986); Silberblatt, supra, 608 F.2d at 40-41. Since HUD was aware of the possibility of arbitration (and indeed demanded it by requiring that the contract form be one pre-printed by HUD) and repeatedly was given notice of the arbitration as well as an invitation to participate, the doctrine of “vouching-in” also serves to bind HUD. Fidelity and Deposit Co. v. Parsons & Whittemore Contractors Corp., 48 N.Y.2d 127, 131-32, 421 N.Y.S.2d 869, 871-72, 397 N.E.2d 380, 383 (1979) (where alter ego is aware of arbitration clause and has notice of proceedings, it can be bound). To the extent that the rule in SCAC Transport (USA), Inc. v. S.S. “Dañaos”, 845 F.2d 1157 (2 Cir.1988), differs, we find it inapplicable. The basis of jurisdiction in SCAC Transport apparently was admiralty. In any event, the opinion does not purport to invoke New York law. HUD further asserts that the contract in question is one "for public improvement” under the Lien Law. In New York, mechanic’s liens are not valid as against real property that is the subject matter of such contracts. HUD asserts this claim for the first time on appeal. We “ ‘will not reverse a summary judgment on the basis of arguments not presented below unless our failure to do so will result in a possible miscarriage of justice.’ ” Republic Nat’l Bank v. Eastern Airlines, Inc., 815 F.2d 232, 240 (2 Cir.1987) (quoting Radix Org. v. Mack Trucks, Inc., 602 F.2d 45, 48 (2 Cir.1979)). Since there is no reason that HUD could not have raised this defense in the district court, there is no miscarriage of justice. In any event, BHAP does not appear to be a “public benefit corporation” within the meaning of New York law, since its profits, if any, do not inure to the state or its citizens—a prerequisite to enjoying protection from mechanic’s liens on real property. IV. To summarize: We reverse the judgment of the district court to the extent that it held that it did not have subject matter jurisdiction over the cause of action which sought to enforce the arbitration award against HUD. We hold that the court did have jurisdiction and that HUD waived its immunity to suit. We therefore remand that cause of action to the district court for a determination of the merits of Sanders’ claim. We affirm the judgment of the district court to the extent that it held that Sanders was entitled to foreclose its mechanic’s lien against HUD. Affirmed in part; reversed and remanded in part. Question: Did the court rule for the defendant on grounds other than procedural grounds? For example, right to speedy trial, double jeopardy, confrontation, retroactivity, self defense. This includes the question of whether the defendant waived the right to raise some claim. A. No B. Yes C. Yes, but error was harmless D. Mixed answer E. Issue not discussed Answer:
sc_certreason	K	What follows is an opinion from the Supreme Court of the United States. Your task is to identify the reason, if any, given by the court for granting the petition for certiorari. O’LEARY, DEPUTY COMMISSIONER, FOURTEENTH COMPENSATION DISTRICT, v. BROWN-PACIFIC-MAXON, INC. et al. No. 267. Argued December 7, 1950. Decided February 26, 1951. Morton Hollander argued the cause for petitioner. With him on the brief were Solicitor General Perlman, Acting Assistant Attorney General Clapp and Morton Liftin. Edward S. Franklin argued the cause and filed a brief for respondents. Mr. Justice Frankfurter delivered the opinion of the Court. In this case we are called upon to review an award of compensation under the Longshoremen’s and Harbor Workers’ Compensation Act. Act of March 4, 1927, 44 Stat. 1424, as amended, 33 U. S. C. § 901 et seq. The award was made on a claim arising from the accidental death of an employee of Brown-Pacific-Maxon, Inc., a government contractor operating on the island of Guam. Brown-Pacific maintained for its employees a recreation center near the shoreline, along which ran a channel so dangerous for swimmers that its use was forbidden and signs to that effect erected. John Yalak, the employee, spent the afternoon at the center, and was waiting for his employer’s bus to take him from the area when he saw or heard two men, standing on the reefs beyond the channel, signaling for help. Followed by nearly twenty others, he plunged in to effect a rescue. In attempting to swim the channel to reach the two men he was drowned. A claim was filed by his dependent mother, based on the Longshoremen’s Act and on an Act of August 16, 1941, extending the compensation provisions to certain employment in overseas possessions. 55 Stat. 622, 56 Stat. 1035, as amended, 42 U. S. C. § 1651. In due course of the statutory procedure, the Deputy Commissioner found as a “fact” that “at the time of his drowning and death the deceased was using the recreational facilities sponsored and made available by the employer for the use of its employees and such participation by the deceased was an incident of his employment, and that his drowning and death arose out of and in the course of said employment . . . .” Accordingly, he awarded a death benefit of $9.38 per week. Brown-Pacific and its insurance carrier thereupon petitioned the District Court under § 21 of the Act to set aside the award. That court denied the petition on the ground that “there is substantial evidence ... to sustain the compensation order.” On appeal, the Court of Appeals for the Ninth Circuit reversed. It concluded that “The lethal currents were not a part of the recreational facilities supplied by the employer and the swimming in them for the rescue of the unknown man was not recreation. It was an act entirely disconnected from any use for which the recreational camp was provided and not in the course of Valak’s employment.” 182 F. 2d 772, 773. We granted certiorari, 340 U. S. 849, because the case brought into question judicial review of awards under the Longshoremen’s Act in light of the Administrative Procedure Act. The Longshoremen’s and Harbor Workers’ Act authorizes payment of compensation for “accidental injury or death arising out of and in the course of employment.” § 2 (2), 44 Stat. 1425, 33 U. S. C. § 902 (2). As we read its opinion the Court of Appeals entertained the view that this standard precluded an award for injuries incurred in an attempt to rescue persons not known to be in the employer’s service, undertaken in forbidden waters outside the employer’s premises. We think this is too restricted an interpretation of the Act. Workmen’s compensation is not confined by common-law conceptions of scope of employment. Cardillo v. Liberty Mutual Ins. Co., 330 U. S. 469, 481; Matter of Waters v. Taylor Co., 218 N. Y. 248, 251, 112 N. E. 727, 728. The test of recovery is not a causal relation between the nature of employment of the injured person and the accident. Thom v. Sinclair, [1917] A. C. 127, 142. Nor is it necessary that the employee be engaged at the time of the injury in activity of benefit to his employer. All that is required is that the “obligations or conditions” of employment create the “zone of special danger” out of which the injury arose. Ibid. A reasonable rescue attempt, like pursuit in aid of an officer making an arrest, may be “one of the risks of the employment, an incident of the service, foreseeable, if not foreseen, and so covered by the statute.” Matter of Babington v. Yellow Taxi Corp., 250 N. Y. 14, 17, 164 N. E. 726, 727; Puttkammer v. Industrial Comm’n, 371 Ill. 497, 21 N. E. 2d 575. This is not to say that there are not cases “where an employee, even with the laudable purpose of helping another, might go so far from his employment and become so thoroughly disconnected from the service of his employer that it would be entirely unreasonable to say that injuries suffered by him arose out of and in the course of his employment.” Matter of Waters v. Taylor Co., 218 N. Y. at 252, 112 N. E. at 728. We hold only that rescue attempts such as that before us are not necessarily excluded from the coverage of the Act as the kind of conduct that employees engage in as frolics of their own. The Deputy Commissioner treated the question whether the particular rescue attempt described by the evidence was one of the class covered by the Act as a question of “fact.” Doing so only serves to illustrate once more the variety of ascertainments covered by the blanket term “fact.” Here of course it does not connote a simple, external, physical event as to which there is conflicting testimony. The conclusion concerns a combination of happenings and the inferences drawn from them. In part at least, the inferences presuppose applicable standards for assessing the simple, external facts. Yet the standards are not so severable from the experience of industry nor of such a nature as to be peculiarly appropriate for independent judicial ascertainment as “questions of law.” Both sides conceded that the scope of judicial review of such findings of fact is governed by the Administrative Procedure Act. Act of June 11, 1946, 60 Stat. 237, 5 U. S. C. § 1001 et seq. The standard, therefore, is that discussed in Universal Camera Corp. v. Labor Board, ante, p. 474. It is sufficiently described by saying that the findings are to be accepted unless they are unsupported by substantial evidence on the record considered as a whole. The District Court recognized this standard. When this Court determines that a Court of Appeals has applied an incorrect principle of law, wise judicial administration normally counsels remand of the cause to the Court of Appeals with instructions to reconsider the record. Compare Universal Camera Corp. v. Labor Board, supra. In this instance, however, we have a slim record and the relevant standard is not difficult to apply; and we think the litigation had better terminate now. Accordingly we have ourselves examined the record to assess the sufficiency of the evidence. We are satisfied that the record supports the Deputy Commissioner’s finding. The pertinent evidence was presented by the written statements of four persons and the testimony of one witness. It is, on the whole, consistent and credible. From it the Deputy Commissioner could rationally infer that Valak acted reasonably in attempting the rescue, and that his death may fairly be attributable to the risks of the employment. We do not mean that the evidence compelled this inference; we do not suggest that had the Deputy Commissioner decided against the claimant, a court would have been justified in disturbing his conclusion. We hold only that on this record the decision of the District Court that the award should not be set aside should be sustained. Reversed. 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:
sc_decisiondirection	A	What follows is an opinion from the Supreme Court of the United States. Your task is to determine the ideological "direction" of the decision ("liberal", "conservative", or "unspecifiable"). Use "unspecifiable" if the issue does not lend itself to a liberal or conservative description (e.g., a boundary dispute between two states, real property, wills and estates), or because no convention exists as to which is the liberal side and which is the conservative side (e.g., the legislative veto). Specification of the ideological direction comports with conventional usage. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. In interstate relations and private law issues, consider unspecifiable in all cases. GINZBURG et al. v. UNITED STATES. No. 42. Argued December 7, 1965. Decided March 21, 1966. Sidney Dickstein argued the cause for petitioners. With him on the briefs was George Kaujmann. Paul Bender argued the cause for the United States, pro hac vice, by special leave of Court. With him on the brief were Solicitor General Marshall and Assistant Attorney General Vinson. Briefs of amici curiae, urging reversal, were filed by Irwin Karp for the Authors League of America, Inc.; by Bernard A. Berkman and Melvin L. Wulf for the American Civil Liberties Union et al.; and by Horace S. Manges and Marshall C. Berger for American Book Publishers Council, Inc. Briefs of amici curiae, urging affirmance, were filed by Charles H. Keating, Jr., and James J. Clancy for Citizens for Decent Literature, Inc., et al. Mr. Justice Brennan delivered the opinion of the Court. A judge sitting without a jury in the District Court for the Eastern District of Pennsylvania convicted petitioner Ginzburg and three corporations controlled by him upon all 28 counts of an indictment charging violation of the federal obscenity statute, 18 U. S. C. § 1461 (1964 ed.). 224 E. Supp. 129. Each count alleged that a resident of the Eastern District received mailed matter, either one of three publications challenged as obscene, or advertising telling how and where the publications might be obtained. The Court of Appeals for the Third Circuit affirmed, 338 F. 2d 12. We granted certiorari, 380 U. S. 961. We affirm. Since petitioners do not argue that the trial judge misconceived or failed to apply the standards we first enunciated in Roth v. United States, 354 U. S. 476, the only serious question is whether those standards were correctly applied. In the cases in which this Court has decided obscenity questions since Roth, it has regarded the materials as sufficient in themselves for the determination of the question. In the present case, however, the prosecution charged the offense in the context of the circumstances of production, sale, and publicity and assumed that, standing alone, the publications themselves might not be obscene. We agree that the question of obscenity may include consideration of the setting in which the publications were presented as an aid to determining the question- of obscenity, and assume without deciding that the prosecution could not have succeeded otherwise. As in Mishkin v. New York, post, p. 502, and as did the courts below, 224 F. Supp., at 134, 338 F. 2d, at 14-15, we view the publications against a background of commercial exploitation of erotica solely for the sake of their prurient appeal. The record in that regard amply supports the decision of the trial judge that the mailing of all three publications offended the statute. The three publications were EROS, a hard-cover magazine of expensive format; Liaison, a bi-weekly newsletter; and The Housewife’s Handbook on Selective Promiscuity (hereinafter the Handbook), a short book. The issue of EROS specified in the indictment, Vol. 1, No. 4, contains 15 articles and photo-essays on the subject of love, sex, and sexual relations. The specified issue of Liaison, Yol. 1, No. 1, contains a prefatory “Letter from the Editors” announcing its dedication to “keeping sex an art and preventing it from becoming a science.” The remainder of the issue consists of digests of two articles concerning sex and sexual relations which had earlier appeared in professional journals and a report of an interview with a psychotherapist who favors the broadest license in sexual relationships. As the trial judge noted, “[w]hile the treatment is largely superficial, it is presented entirely without restraint of any kind. According to defendants’ own expert, it is entirely without literary merit.” 224 F. Supp., at 134. The-Handbook purports to be a sexual autobiography detailing with complete candor the author’s sexual experiences from age 3 to age 36. The text includes, and prefatory and concluding sections of the book elaborate, her views on such subjects as sex education of children, laws regulating private consensual adult sexual practices, and the equality of women in sexual relationships. It was claimed at trial that women would find the book valuable, for example as a marriage manual or as an aid to the sex education of their children. Besides testimony as to the merit of the material, there was abundant evidence to show that each of the accused publications was originated or sold as stock in trade of the sordid business of pandering — “the business of purveying textual or graphic matter openly advertised to appeal to the erotic interest of their customers.” EROS early sought mailing privileges from the postmasters of Intercourse and Blue Ball, Pennsylvania. The trial court found the obvious, that these hamlets were chosen only for the value their names would have in furthering petitioners’ efforts to sell their publications on the basis of salacious appeal; the facilities of the post offices were inadequate to handle the anticipated volume of mail, and the privileges were denied. Mailing privileges were then obtained from the postmaster of Middlesex, New Jersey. EROS and Liaison thereafter mailed several million circulars soliciting subscriptions from that post office; over 5,500 copies of the Handbook were mailed. The “leer of the sensualist” also permeates the advertising for the three publications. The circulars sent for EROS and Liaison stressed the sexual candor of the respective publications, and openly boasted that the publishers would take full advantage of what they regarded as an unrestricted license allowed by law in the expression of sex and sexual matters. The advertising for the Handbook, apparently mailed from New York, consisted almost entirely of a reproduction of the introduction of the book, written by one Dr. Albert Ellis. Although he alludes to the book’s informational value and its putative therapeutic usefulness, his remarks are preoccupied with the book’s sexual imagery. The solicitation was indiscriminate, not limited to those, such as physicians or psychiatrists, who might independently discern the book’s therapeutic worth. Inserted in each advertisement was a slip labeled “GUARANTEE” and reading, “Documentary Books, Inc. unconditionally guarantees full refund of the price of THE HOUSEWIFE’S HANDBOOK ON SELECTIVE PROMISCUITY if the book fails to reach you because of U. S. Post Office censorship interference.” Similar slips appeared in the advertising for EROS and Liaison; they highlighted the gloss petitioners put on the publications, eliminating any doubt what the purchaser was being asked to buy. This evidence, in our view, was relevant in determining the ultimate question of obscenity and, in the context of this record, serves to resolve all ambiguity and doubt. The deliberate representation of petitioners’ publications as erotically arousing, for example, stimulated the reader to accept them as prurient; he looks for titillation, not for saving intellectual content. Similarly, such representation would tend to force public confrontation with the potentially offensive aspects of the work; the brazenness of such an appeal heightens the offensiveness of the publications to those who are offended by such material. And the circumstances of presentation and dissemination of material are equally relevant to determining whether social importance claimed for material in the courtroom was, in the circumstances, pretense or reality — whether it was the basis upon which it was traded in the marketplace or a spurious claim for litigation purposes. Where the purveyor’s sole emphasis is on the sexually provocative aspects of his publications, that fact may be decisive in the determination of obscenity. Certainly in a prosecution which, as here, does not necessarily imply suppression of the materials involved, the fact that they originate or are used as a subject of pandering is relevant to the application of the Roth test. A proposition argued as to EROS, for example, is that the trial judge improperly found the magazine to be obscene as a whole, since he concluded that only four of the 15 articles predominantly appealed to prurient interest and substantially exceeded community standards of candor, while the other articles were admittedly non-offensive. But the trial judge found that “[t]he deliberate and studied arrangement of EROS is editorialized for the purpose of appealing predominantly to prurient interest and to insulate through the inclusion of non-offensive material.” 224 F. Supp., at 131. However erroneous such a conclusion might be if unsupported by the evidence of pandering, the record here supports it. EROS was created, represented and sold solely as a claimed instrument of the sexual stimulation it would bring. Like the other publications, its pervasive treatment of sex and sexual matters rendered it available to exploitation by those who would make a business of pandering to “the widespread weakness for titillation by pornography.” Petitioners’ own expert agreed, correctly we think, that “[i]f the object [of a work] is material gain for the creator through an appeal to the sexual curiosity and appetite,” the work is pornographic. In other words, by animating sensual detail to give the publication a salacious cast, petitioners reinforced what is conceded by the Government to be an otherwise debatable conclusion. A similar analysis applies to the judgment regarding the Handbook. The bulk of the proofs directed to social importance concerned this publication. Before selling publication rights to petitioners, its author had printed it privately; she sent circulars to persons whose names appeared on membership lists of medical and psychiatric associations, asserting its value as an adjunct to therapy. Over 12,000 sales resulted from this solicitation, and a number of witnesses testified that they found the work useful in their professional practice. The Government does not seriously contest the claim that the book has worth in such a controlled, or even neutral, environment. Petitioners, however, did not sell the book to such a limited audience, or focus their claims for it on its supposed therapeutic or educational value; rather, they deliberately emphasized the sexually provocative aspects of the work, in order to catch the salaciously disposed. They proclaimed its obscenity; and we cannot conclude that the court below erred in taking their own evaluation at its face value and declaring the book as a whole obscene despite the other evidence. The decision in United States v. Rebhuhn, 109 F. 2d 512, is persuasive authority for our conclusion. That was a prosecution under the predecessor to § 1461, brought in the context of pandering of publications assumed useful to scholars and members of learned professions. The books involved were written by authors proved in many instances to have been men of scientific standing, as anthropologists or psychiatrists. The Court of Appeals for the Second Circuit therefore assumed that many of the books were entitled to the protection of the First Amendment, and “could lawfully have passed through the mails, if directed to those who would be likely to use them for the purposes for which they were written . . . .” 109 F. 2d, at 514. But the evidence, as here, was that the defendants had not disseminated them for their “proper use, but . . . woefully misused them, and it was that misuse which constituted the gravamen of the crime.” Id., at 515. Speaking for the Court in affirming the conviction, Judge Learned Hand said: “. . . [T] he works themselves had a place, though a limited one, in anthropology and in psychotherapy. They might also have been lawfully sold to laymen who wished seriously to study the sexual practices of savage or barbarous peoples, or sexual aberrations; in other words, most of them were not obscene per se. In several decisions we have held that the statute does not in all circumstances forbid the dissemination of such publications .... However, in the case at bar, the prosecution succeeded . . . when it showed that the defendants had indiscriminately flooded the mails with advertisements, plainly designed merely to catch the prurient, though under the guise of distributing works of scientific or literary merit. We do not mean that the distributor of such works is charged with a duty to insure that they shall reach only proper hands, nor need we say what care he must use, for these defendants exceeded any possible limit; the circulars were no more than appeals to the salaciously disposed, and no [fact finder] could have failed to pierce the fragile screen, set up to cover that purpose.” 109 F. 2d, at 514-515. We perceive no threat to First Amendment guarantees in thus holding that in close cases evidence of pandering may be probative with respect to the nature of the material in question and thus satisfy the Both test. No weight is ascribed to the fact that petitioners have profited from the sale of publications which we have assumed but do not hold cannot themselves be adjudged obscene in the abstract; to sanction consideration of this fact might indeed induce self-censorship, and offend the frequently stated principle that commercial activity, in itself, is no justification for narrowing the protection of expression secured by the First Amendment. Rather, the fact that each of these publications was created or exploited entirely on the basis of its appeal to prurient interests strengthens the conclusion that the transactions here were sales of illicit merchandise, not sales of constitutionally protected matter. A conviction for mailing obscene publications, but explained in part by the presence of this element, does not necessarily suppress the materials in question, nor chill their proper distribution for a proper use. Nor should it inhibit the enterprise of others seeking through serious endeavor to advance human knowledge or understanding in science, literature, or art. All that will have been determined is that questionable publications are obscene in a context which brands them as obscene as that term is defined in Roth — a use inconsistent with any claim to the shelter of the First Amendment. “The nature of the materials is, of course, relevant as an attribute of the defendant’s conduct, but the materials are thus placed in context from which they draw color and character. A wholly different result might be reached in a different setting.” Roth v. United States, 354 U. S., at 495 (Warren, C. J., concurring). It is important to stress that this analysis simply elaborates the test by which the obscenity vel non of the material must be judged. Where an exploitation of interests in titillation by pornography is shown with respect to material lending itself to such exploitation through pervasive treatment or description of sexual matters, such evidence may support the determination that the material is obscene even though in other contexts the material would escape such condemnation. Petitioners raise several procedural objections, principally directed to the findings which accompanied the trial court’s memorandum opinion, Fed. Rules Crim. Proc. 23. Even on the assumption that petitioners’ objections are well taken, we perceive no error affecting their substantial rights. Affirmed. No challenge was or is made to venue under 18 U. S. C. § 3237 (1964 ed.). The federal obscenity statute, 18 U. S. C. § 1461, provides in pertinent part: “Every obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device, or substance; and— “Every written or printed card, letter, circular, book, pamphlet, advertisement, or notice of any kind giving information, directly or indireetly, where, or how, or from whom, or by what means any of such mentioned matters . . . may be obtained .... “Is declared to be nonmailable matter and shall not be conveyed in the mails or delivered from any post office or by any letter carrier. “Whoever knowingly uses the mails for the mailing, carriage in the mails, or delivery of anything declared by this section to be nonmailable . . . shall be fined not more than $5,000 or imprisoned not more than five years, or both, for the first such offense . . . We are not, however, to be understood as approving all aspects of the trial judge’s exegesis of Roth, for example his remarks that “the community as a whole is the proper consideration. In this community, our society, we have children of all ages, psychotics, feeble-minded and other susceptible elements. Just as they cannot set the pace for the average adult reader’s taste, they cannot be overlooked as part of the community.” 224 F. Supp., at 137. Compare Butler v. Michigan, 352 U. S. 380. The Government stipulated at trial that the circulars advertising the publications were not themselves obscene; therefore the convictions on the counts for mailing the advertising stand only if the mailing of the publications offended the statute. Our affirmance of the convictions for mailing EROS and Liaison is based upon their characteristics as a whole, including their editorial formats, and not upon particular articles contained, digested, or excerpted in them. Thus we do not decide whether particular articles, for example, in EROS, although identified by the trial judge as offensive, should be condemned as obscene whatever their setting. Similarly, we accept the Government’s concession, note 13, infra, that the prosecution rested upon the manner in which the petitioners sold the Handbook; thus our affirmance implies no agreement with the trial judge’s characterizations of the book outside that setting. It is suggested in dissent that petitioners were unaware that the record being established could be used in support of such an approach, and that petitioners should be afforded the opportunity of a new trial. However, the trial transcript clearly reveals that at several points the Government announced its theory that made the mode of distribution relevant to the determination of obscenity, and the trial court admitted evidence, otherwise irrelevant, toward that end. Roth v. United, States, supra, 354 U. S., at 495-496 (Warren, C. J., concurring). Evidence relating to petitioners’ efforts to secure mailing privileges from these post offices was, contrary to the suggestion of Mr. Justice Harlan in dissent, introduced for the purpose of supporting such a finding. Scienter had been stipulated prior to trial. The Government’s position was revealed in the following colloquy, which occurred when it sought to introduce a letter to the postmaster of Blue Ball, Pennsylvania: “The COURT. Who signed the letter? “Mr. CREAMER. It is signed by Frank R. Brady, Associate Publisher of Mr. Ginzburg. It is on Eros Magazine, Incorporated’s stationery. “The COURT. And your objection is- “Mr. SHAPIRO. It is in no way relevant to the particular issue or publication upon which the defendant has been indicted and in my view, even if there was an identification with respect to a particular issue, it would be of doubtful relevance in that event. “The COURT. Anything else to say? “Mr. CREAMER. If Your Honor pleases, there is a statement in this letter indicating that it would be advantageous to this publication to have it disseminated through Blue Ball, Pennsylvania, post office. I think this clearly goes to intent, as to what the purpose of publishing these magazines was. At least, it clearly establishes one of the reasons why they were disseminating this material. “The COURT. Admitted.” Thus, one EROS advertisement claimed: “Eros is a child of its times. . . . [It] is the result of recent court decisions that have realistically interpreted America’s obscenity laws and that have given to this country a new breadth of freedom of expression. . . . EROS takes full advantage of this new freedom of expression. It is the magazine of sexual candor.” In another, more lavish spread: “EROS is a new quarterly devoted to the subjects of Love and Sex. In the few short weeks since its birth, EROS has established itself as the rave of the American intellectual community — and the rage of prudes everywhere! And it’s no wonder: EROS handles the subjects of Love and Sex with complete candor. The publication of this magazine — which is frankly and avowedly concerned with erotica — has been enabled by recent court decisions ruling that a literary piece or painting, though explicitly sexual in content, has a right to be published if it is a genuine work of art. “EROS is a genuine work of art. . . .” An undisclosed number of advertisements for Liaison were mailed. The outer envelopes of these ads ask, “Are you among the chosen few?” The first line of the advertisement eliminates the ambiguity: “Are you a member of the sexual elite?” It continues: “That is, are you among the few happy and enlightened individuals who believe that a man and woman can make love without feeling pangs of conscience? Can you read about love and sex and discuss them without blushing and stammering? “If so, you ought to know about an important new periodical called Liaison. “In short, Liaison is Cupid’s Chronicle. . . . “Though Liaison handles the subjects of love and sex with complete candor, I wish to make it clear that it is not .a scandal sheet and it is not written for the man in the street. Liaison is aimed at intelligent, educated adults who can accept love and sex as part of life. “. . . I’ll venture to say that after you’ve read your first biweekly issue, Liaison will be your most eagerly awaited piece of mail.” Note 13, infra. There is much additional evidence supporting the conclusion of petitioners’ pandering. One of petitioners’ former writers for Liaison, for example, testified about the editorial goals and practices of that publication. Schwartz, Morals Offenses and the Model Penal Code, 63 Col. L. Rev. 669, 677 (1963). The Government drew a distinction between the author’s and petitioners’ solicitation. At the sentencing proceeding the United States Attorney stated: “. . . [the author] was distributing . . . only to physicians; she never had widespread, indiscriminate distribution of the Handbook, and, consequently, the Post Office Department did not interfere .... If Mr. Ginzburg had distributed and sold and advertised these books solely to . . . physicians . . . we, of course, would not be here this morning with regard to The Housewife’s Handbook . . . .” The Proposed Official Draft of the ALI Model Penal Code likewise recognizes the question of pandering as relevant to the obscenity issue, §251.4 (4); Tentative Draft No. 6 (May 6, 1957), pp. 1-3, 13-17, 45-46, 53; Schwartz, supra, n. 12; see Craig, Suppressed Books, 195-206 (1963). Compare Grove Press, Inc. v. Christenberry, 175 F. Supp. 488, 496-497 (D. C. S. D. N. Y. 1959), aff’d 276 F. 2d 433 (C. A. 2d Cir. 1960); United States v. One Book Entitled Ulysses, 72 F. 2d 705, 707 (C. A. 2d Cir. 1934), affirming 5 F. Supp. 182 (D. C. S. D. N. Y. 1933). See also The Trial of Lady Chatterly—Regina v. Penguin Books, Ltd. (Rolph. ed. 1961). Our conclusion is consistent with the statutory scheme. Although § 1461, in referring to “obscene . . . matter” may appear to deal with the qualities of material in the abstract, it is settled that the mode of distribution may be a significant part in the determination of the obscenity of the material involved. United States v. Rebhuhn, supra. Because the statute creates a criminal remedy, cf. Manual Enterprises v. Day, 370 U. S. 478, 495 (opinion of BreNNAN, J.), it readily admits such an interpretation, compare United States v. 31 Photographs, etc., 156 F. Supp. 350 (D. C. S. D. N. Y. 1957). See New York Times v. Sullivan, 376 U. S. 254, 265-266; Smith v. California, 361 U. S. 147, 150. See Valentine v. Chrestensen, 316 U. S. 52, where the Court viewed handbills purporting to contain protected expression as merely commercial advertising. Compare that decision with Jami-son v. Texas, 318 U. S. 413, and Murdock v. Pennsylvania, 319 U. S. 105, where speech having the characteristics of advertising was held to be an integral part of religious discussions and hence protected. Material sold solely to produce sexual arousal, like commercial advertising, does not escape regulation because it has been dressed up as speech, or in other contexts might be recognized as speech. Compare Breard v. Alexandria, 341 U. S. 622, with Martin v. Struthers, 319 U. S. 141. Cf. Kovacs v. Cooper, 336 U. S. 77; Giboney v. Empire Storage Co., 336 U. S. 490; Cox v. Louisiana, 379 U. S. 536, 559. One who advertises and sells a work on the basis of its prurient appeal is not threatened by the perhaps inherent residual vagueness of the Roth test, cf. Dombrowski v. Pfister, 380 U. S. 479, 486-487, 491-492; such behavior is central to the objectives of criminal obscenity laws. ALI Model Penal Code, Tentative Draft No. 6 (May 6, 1957), pp. 1-3, 13-17; Comments to the Proposed Official Draft §251.4, supra; Schwartz, Morals Offenses and the Model Penal Code, 63 Col. L. Rev. 669, 677-681 (1963); Paul & Schwartz, Federal Censorship— Obscenity in the Mail, 212-219 (1961); see Mishkin v. New York, post, p. 502, at 507, n. 5. Question: What is the ideological direction of the decision? A. Conservative B. Liberal C. Unspeciﬁable Answer:
songer_r_fed	1	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. UNITED STATES of America v. John W. JENRETTE, Appellant. No. 83-2281. United States Court of Appeals, District of Columbia Circuit. Argued May 23, 1984. Decided Sept. 18, 1984. Kenneth M. Robinson and W. Gary Kohl-man, Washington, D.C., with whom Dennis M. Hart and Stanley Brand, Washington, D.C., were on the brief, for appellant. Michael W. Farrell, Asst. U.S. Atty., Washington, D.C., with whom Joseph E. diGenova, U.S. Atty., and Reid H. Weingarten, Atty., U.S. Dept, of Justice, Washington, D.C., were on the brief, for appellee. Before WRIGHT, TAMM and STARR, Circuit Judges. Opinion for the court filed by Circuit Judge TAMM. TAMM, Circuit Judge: Former Congressman John Jenrette appeals his conviction on bribery charges stemming from the undercover operation by the Federal Bureau of Investigation (FBI) known as “Abscam.” Jenrette contends that 1) the trial court erred in declining to instruct the jury on the defense of duress; 2) the evidence adduced at trial established entrapment as a matter of law; 3) the FBI’s conduct during the investigation violated principles of due process; and 4) the government failed to disclose certain evidence required by Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). For the reasons expressed below, we affirm the conviction. I. Background This court is by now quite familiar with the FBI’s undercover operation known as Abscam. See United States v. Weisz, 718 F.2d 413, 416-17 (D.C.Cir.1983), cert. denied, — U.S. -, -, 104 S.Ct. 1285, 1305, 79 L.Ed.2d 688, 704 (1984); United States v. Kelly, 707 F.2d 1460, 1461-63 (D.C.Cir.), cert. denied, — U.S.-, 104 S.Ct. 264, 78 L.Ed.2d 247 (1983). The Abscam operation involved a fictitious, FBI-created entity, Abdul Enterprises, which was purportedly operated by wealthy Arabs interested in United States investments. During the period relevant to this case, FBI agent Anthony Amoroso assumed the role of president of the organization, and Melvin Weinberg posed as its financial advisor. Through various “middlemen,” Weinberg and Amoroso offered bribes to members of Congress. In return, the Abscam operatives asked the congressmen to introduce private legislation that would permit their Arab clients to immigrate to the United States. Jenrette became involved in the Abscam operation through his friend and co-defendant John Stowe. In November 1979, Weinberg told Stowe that his Arab clients were interested in discussing with Jenrette the possibility of a private immigration bill. Weinberg asked Stowe to determine whether Jenrette would introduce such a bill for $100,000. Trial Transcript (Tr.) (Amoroso), Joint Appendix (J.A.) volume II (II) at 227-28. On December 3, 1979, Stowe met with Weinberg and Amoroso to arrange a meeting with Jenrette. The events that resulted in Jenrette’s indictment for bribery began on December 4-6, 1979. On December 4, Jenrette and Stowe met with Weinberg and Amoroso at a townhouse on W Street in Washington, D.C. During the meeting, Amoroso explained that his clients needed help immigrating to the United States. Transcript of Taped Meeting of Dec. 4, 1979. J.A. volume III (III) at 737-43. Jenrette stated that he would introduce or arrange to have introduced a private immigration bill. Id. at 744. Amoroso then told Jenrette: “We’re talking about fifty thousand dollars now and fifty thousand dollars when this thing is introduced.” Id. at 747. After some discussion about simultaneously introducing a bill in the Senate, Jenrette indicated that he would like to review the immigration laws before accepting the money. Id. at 759. Jenrette explained that he didn’t want to take the money without “feeling comfortable about being able to do it.” Id. at 760. Although Amoroso again offered Jenrette the money during the December 4 meeting, Jenrette postponed his response until the following day when he would know whether he could help Amoroso’s clients. Id. at 766-70. Jenrette then assured Amoroso: “[D]on’t get me wrong... I got larceny in my blood. I’d take it in a... minute.” Id. at 772. Jenrette phoned Amoroso the following day and stated that he would go forward with the transaction but probably could not arrange a meeting that day. Transcript of Telephone Call of Dec. 5, 1979. J.A. Ill at 788-89. On December 6, Jenrette informed Amoroso by telephone that he wanted Stowe to pick up the money. Jenrette explained that if Stowe received the money, he (Jenrette) would be “a little bit... away from a section in the code about... public officials.” Transcript of Telephone Call of Dec. 6, 1979, J.A. Ill at 799. Amoroso agreed to give the money to Stowe. Id. at 800. After Stowe picked up the money, Jenrette confirmed with Amoroso receipt of the $50,000. Transcript of Telephone Call of Dec. 6, 1979, J.A. Ill at 806-07. On January 7, 1980, Jenrette and Stowe again met with Amoroso and Weinberg. At this meeting, Jenrette brought up the immigration problem and indicated that he might be able to get Senator Strom Thurmond interested in the deal. Transcript of Meeting of Jan. 7, 1980, J.A. Ill at 852-53. Jenrette and Stowe continued to have contact with the Abscam agents regarding the proposed bribery of Senator Thurmond until their arrest on February 2, 1980. On June 13, 1980, Jenrette and Stowe were indicted on one count of conspiracy to commit bribery and two counts of bribery. After a full trial, a jury found Jenrette and Stowe guilty on all counts. Both Stowe and Jenrette filed motions seeking a judgment of acquittal on the ground that the government’s investigation was so outrageous as to offend due process, and that the evidence established entrapment as a matter of law. Alternatively, Jenrette and Stowe sought a new trial on the ground that the government failed to comply with the disclosure requirement of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). After a lengthy post-trial hearing, United States District Judge John Garrett Penn denied the motions. United States v. Jenrette, Cr. No. 80-289 (D.D.C. Aug. 4, 1983), J.A. volume 1(1) at 83-84. Subsequently, Jenrette was sentenced to two years’ imprisonment and fined $30,000. Jenrette appeals his conviction and the denial of his motion for acquittal or retrial. In addition to the three claims raised in his motion before the district court, Jenrette asserts that the district judge erred in refusing to instruct the jury on the defense of duress. For the reasons set forth below, we find Jenrette’s contentions merit-less. Accordingly, we affirm the conviction and the district court’s judgment. II. Analysis A. Duress The defense of duress excuses criminal conduct only where the defendant committed the illegal action “under an unlawful threat of imminent death or serious bodily injury____” United States v. Bailey, 444 U.S. 394, 409, 100 S.Ct. 624, 634, 62 L.Ed.2d 575 (1980). If the defendant had any reasonable, legal alternative to committing the crime, the defense of duress will not obtain. Id. at 410, 100 S.Ct. at 634. In most eases, a defendant need not produce strong evidence to obtain a jury instruction on duress. Where, however, the evidence is insufficient as a matter of law to support a finding of duress, the district court’s refusal to instruct the jury on duress is not erroneous. United States v. Shapiro, 669 F.2d 593, 596-97 (9th Cir.1982). See United States v. Peltier, 693 F.2d 96, 98 (9th Cir.1982) (per curiam). See also United States v. Bailey, 444 U.S. at 412, 100 S.Ct. at 635. Jenrette contends that he accepted the bribe only because he feared death or injury at the hands of Weinberg and Amoroso. According to Jenrette, Weinberg and Amoroso deliberately portrayed themselves as mobsters. Jenrette maintains that because he suffers from paranoia induced by alcoholism, this “gangster image” induced a reasonable fear of imminent danger. Jenrette testified that his fears were substantiated by a threat from Weinberg. We conclude that the evidence offered by Jenrette is insufficient as a matter of law to justify a finding of duress. Assuming that Jenrette reasonably believed Weinberg and Amoroso were gangsters and that this belief produced a reasonable fear, we still find no evidence that Jenrette was threatened with imminent bodily harm on December 6 when he accepted the bribe. Similarly, Jenrette cites no evidence in the record that a threat of imminent harm at the January 7 meeting caused him to suggest involving Senator Thurmond in the immigration deal. Furthermore, Jenrette does not argue that he had no reasonable, legal alternative to accepting the bribe money. As noted, the bribe was first offered at the December 4, 1979 meeting. Although Jenrette allegedly feared for his life, he did not accept the money on December 4. Instead, he left the townhouse and made arrangements for an intermediary to collect the money two days later. Even if Jenrette reasonably believed he was in imminent danger while at the townhouse, he has offered no explanation for his failure to take alternative action, such as notifying law enforcement officials, during the next two days. Jenrette’s actions belie his assertion that he acted under threat of imminent harm and that he had no alternative but to accept the bribe. Accordingly, we find, as a matter of law, that the cited evidence cannot support acquittal on the basis of duress. The district court, therefore, did not err in declining to instruct the jury on the defense of duress. See United States v. Shapiro, 669 F.2d at 596-97. B. Entrapment Entrapment occurs when a defendant commits a crime not due to any predisposition, but solely as a result of government inducement. See United States v. Russell, 411 U.S. 423, 428-29, 93 S.Ct. 1637, 1641, 36 L.Ed.2d 366 (1973). A defendant raises the issue of entrapment by producing evidence of government inducement. United States v. Burkley, 591 F.2d 903, 911-16 (D.C.Cir.1978), cert. denied, 440 U.S. 966, 99 S.Ct. 1516, 59 L.Ed.2d 782 (1979). Once the defendant properly raises the defense, the prosecution bears the burden of disproving entrapment by showing beyond a reasonable doubt that the defendant was predisposed to commit the crime. Id. at 915-16. Jenrette contends that the government failed to sustain its burden to prove predisposition. Consequently, Jenrette argues that, as a matter of law, the defense of entrapment bars his conviction. We note at the outset that the scope of our review is limited. At trial, the issue of entrapment was submitted to and rejected by the jury. We may overturn the jury’s rejection of the entrapment defense only if no reasonable jury could have found that the government proved predisposition beyond a reasonable doubt based on the evidence produced at trial. See United States v. Jannotti, 673 F.2d 578, 599 (3d Cir.) (en banc), cert. denied, 457 U.S. 1106, 102 S.Ct. 2906, 73 L.Ed.2d 1315 (1982). After reviewing the record in this case, we conclude that there was ample evidence to support the jury’s verdict. A defendant is predisposed if he exhibits a “ ‘state of mind which readily responds to the opportunity furnished by the [government] to commit [the crime] ____’” United States v. Burkley, 591 F.2d at 916 (quoting Hansford v. United States, 303 F.2d 219, 222 (D.C.Cir.1962) (en banc)). Predisposition may be proved by showing that the defendant “responded affirmatively to less than compelling inducement ____” Id. at 916. Here, the videotape of the December 4 meeting and the taped phone conversations of December 5 and 6 demonstrate that Jenrette readily responded to the government’s bribe. Jenrette’s statements during the meeting indicate that he was well aware that the Ab-scam agents were offering a bribe and that accepting the bribe was illegal. Although Jenrette refused to take the money on December 4, his assurances that he had “larceny in [his] blood” and his suggestion that a third person receive the money indicate that his refusal did not stem from an unwillingness to accept a bribe. Rather, Jenrette’s own statements suggest that he refused the money only because he was concerned about his ability to perform his end of the bargain and because he wished to formally insulate himself from illegal activities. After accepting the bribe on December 6, Jenrette further exhibited a willingness to commit illegal acts by suggesting the possibility of bribing another government official. In light of this evidence, we cannot say that no reasonable jury could have found that Jenrette was predisposed to commit the crime. Jenrette argues, however, that the nature and scope of the government’s inducement effectively negates this evidence of predisposition. First, Jenrette contends that the government made several unsuccessful attempts to engage him in illegal conduct prior to the December 4 meeting. Second, Jenrette argues that after he refused the bribe on December 4, he was threatened by Amoroso and Weinberg until he accepted the bribe on December 6. Finally, Jenrette contends that the amount of the bribe was so excessive, especially in light of his financial and psychological condition, as to constitute compelling inducement sufficient to overcome the government’s evidence of predisposition. We are again mindful that we may overturn the jury’s finding of predisposition only if no reasonable jury could have made such a finding in light of the evidence. The evidence adduced at trial does not conclusively establish that Jenrette was subjected to persistent attempted inducements. Similarly, the transcripts of the recorded telephone conversations of December 5 and 6 contain no evidence that Weinberg or Amoroso employed threats to assure Jenrette’s acceptance of the bribe. Transcripts of telephone conversations of Dec. 5 & 6, 1979, J.A. III at 779-824. We find this evidence insufficient to warrant overturning the jury’s verdict. Similarly, we must reject the claim that the amount of money offered as a bribe in and of itself shows a lack of predisposition. We need not determine here whether a promised monetary reward can ever be so substantial as to establish a lack of predisposition. We conclude only that under the circumstances of this case, the amount of the bribe was not so excessive as to mandate a finding that no reasonable jury could have found predisposition. In sum, we find sufficient evidence to support the jury’s rejection of the entrapment defense. Accordingly, we reject Jenrette’s assertion that the evidence at trial established entrapment as a matter of law. C. Due Process Jenrette further contends that the FBI’s Abscam investigation, as directed toward him, was so outrageous that principles of due process bar his conviction. In United States v. Kelly, 707 F.2d 1460 (D.C.Cir.), cert. denied, — U.S.-, 104 S.Ct. 264, 78 L.Ed.2d 247 (1983), this court rejected a similar claim that the government’s conduct of the Abscam investigation violated fundamental fairness. The panel concluded that the due process clause bars a conviction only in the “rare instance of ‘[pjolice overinvolvement in crime’ that reaches 'a demonstrable level of outrageousness.’ ” Id. at 1476 (quoting Hampton v. United States, 425 U.S. 484, 495 n. 7, 96 S.Ct. 1646, 1653 n. 7, 48 L.Ed.2d 113 (1976) (Powell, J., concurring)). The Kelly panel determined that such a level of outrageousness is not established by showing “obnoxious behavior or even flagrant misconduct on the part of the police[.]” Id. at 1476. Rather, due process guarantees are violated only in the narrow category of cases where the challenged conduct includes “coercion, violence, or brutality to the person.” Id. (quoting Irvine v. California, 347 U.S. 128, 133, 74 S.Ct. 381, 383, 98 L.Ed. 561 (1954)). Since the FBI’s conduct toward Kelly did not involve “the infliction of pain or physical or psychological coercion,” no due process violation existed. Id. at 1477. Jenrette argues that Kelly is not dispositive of this case because the FBI’s conduct toward him differed from that employed in the Kelly investigation. Specifically, Jenrette contends that the FBI “targeted” him with no “reasonable suspicion” that an investigation would reveal criminal behavior. In addition, Jenrette claims that the FBI failed to record certain phone calls that were critical to his defense. Contrary to Jenrette’s assertion, claims of this kind were indeed raised in Kelly. Even if we assume Jenrette has compiled more complete and detailed evidence of misconduct than was compiled in Kelly, we must still reject Jenrette's due process defense. The character and not the amount of the alleged misconduct is determinative in assessing the fundamental fairness of the investigation. Because none of these claimed instances of misconduct involve the type of coercion, violence, or brutality described in Kelly, they do not rise to the level of a due process violation. We therefore affirm the district court’s conclusion that principles of due process do not bar Jenrette’s conviction. D. The Brady Claim Finally, Jenrette contends that the district court erred in denying his motion for a new trial based on the government’s failure to comply with the disclosure requirements of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Brady mandates that upon request the prosecution disclose any evidence favorable to an accused where that evidence is material either to guilt or to punishment. Id. at 87, 83 S.Ct. at 1196. In United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), the Supreme Court clarified the materiality aspect of Brady’s disclosure requirement. Where a defendant has made a request for specific information that is not disclosed, that information is considered material if it might have affected the outcome of the trial. Id. at 104, 96 S.Ct. at 2397. Where the defendant has made no request or a general request for exculpatory evidence, the undisclosed evidence is material only if, in the context of the entire record, it creates a reasonable doubt as to the defendant’s guilt. Id. at 112-13, 96 S.Ct. at 2401-02. There is some disagreement as to whether Jenrette specifically requested all the undisclosed information. We need not resolve this question, however, because a new trial is not warranted under either standard. After a lengthy hearing and after examination of voluminous records and materials, the district court concluded that if the government had disclosed the alleged Brady information, the outcome of the trial would not have changed. United States v. Jenrette, Cr. No. 80-289, slip op. at 55 (D.D.C. July 30, 1983); J.A. I at 74. The district judge is, of course, best suited to evaluate the significance of the undisclosed material. His judgment accordingly deserves great deference. See United States v. Provenzano, 615 F.2d 37, 49 (2d Cir.), cert. denied, 446 U.S. 953, 100 S.Ct. 2921, 64 L.Ed.2d 810 (1980). We thus will not overturn the district court’s judgment absent convincing evidence that the undisclosed information would have affected the outcome of the trial. After examining the Brady material, we find ample support for the district court’s ruling. First, Jenrette contends that the government failed to disclose evidence indicating that he was “targeted” by the FBI. The undisclosed evidence includes: 1) statements by Weinberg and an FBI agent that the FBI wanted to “get” Jenrette; 2) statements indicating that Abscam operatives knew Jenrette was under investigation in South Carolina; 3) a May 8, 1979 teletype from the South Carolina FBI office advising Abscam operatives that Jenrette was a close associate of two Abscam subjects; and 4) a May 1979 teletype recommending a bonus in part for Weinberg’s discovery that Jenrette was in financial trouble and willing “to do favors.” Jenrette maintains that this evidence implies a lack of predisposition and thus supports his entrapment defense. Evidence of Jenrette’s resistance to persistent FBI inducements to involve him in unlawful conduct prior to the December 4, 1979 bribery could bear on the question of Jenrette’s criminal predisposition. The cited undisclosed statements and teletypes, however, do not establish that the FBI offered any inducements prior to December 4, 1979 or that Jenrette resisted such offers. At most, the undisclosed information may indicate some FBI interest in Jenrette before November 1979 or that Weinberg had disclosed information designed to generate interest in Jenrette before that time. Because we do not believe the undisclosed evidence is relevant to the issue of Jenrette’s predisposition, we find no error in the district court’s determination that the nondisclosure of this evidence provided no basis for a new trial. The second category of undisclosed evidence concerns Weinberg’s activities during the Abscam operation. Jenrette points to evidence that Weinberg was running a “double scam.” Jenrette asserts that Weinberg would help create phony certificates of deposit, induce people to circulate the certificates, and then collect a bonus from the FBI for removing the certificates from circulation. Jenrette asserts that the FBI failed to disclose documents indicating that it knew of this scam and a teletype stating that the purpose of his scam was to provide a method for introducing undercover agents to politicians. This evidence pertains to the conduct of the Abscam investigation. The undisclosed documents are thus relevant to Jenrette’s claim that flagrant misconduct during the investigation violated his right to due process. Because the false certificate scheme does not amount to “physical or psychological coercion,” the undisclosed evidence regarding the scheme could not have established a due process violation. See United States v. Kelly, 707 F.2d at 1477. Since disclosure of this evidence could not have affected the outcome of Jenrette’s trial, we find no error in the district court’s determination that a new trial was not warranted. The third category of undisclosed evidence concerns the Abscam operatives’ failure to record all telephone conversations with Jenrette and Stowe. Two Abscam prosecutors testified at the post-trial hearing that they discerned a pattern of unreported phone conversations notwithstanding instructions that all conversations were to be recorded. See, e.g., Transcript of Due Process Hearing of May 12, 1981 at 202. Again, this evidence concerns the fundamental fairness of the investigation and is thus relevant to Jenrette’s due process claim. This court has already ruled in the context of other Abscam cases that the failure to record some phone conversations does not violate principles of due process. United States v. Weisz, 718 F.2d 413, 435-37 (D.C.Cir.1983), cert. denied, — U.S. -,-, 104 S.Ct. 1285, 1305, 79 L.Ed.2d 688, 704 (1984); see also United States v. Kelly, 707 F.2d 1460, 1472-76 (D.C.Cir.), cert. denied, — U.S.-, 104 S.Ct. 264, 78 L.Ed.2d 247 (1983). Since this information could not have affected Jenrette’s conviction, its nondisclosure does not violate Brady. Fourth, the defense claims that the government failed to disclose the previously noted May 9, 1979 teletype reporting that Jenrette was in financial difficulty and a November 20, 1979 teletype indicating that Jenrette was involved in an obstruction of justice charge. According to Jenrette, these two teletypes prove his stressful condition and are thus relevant to the duress defense. These teletypes, however, fail to establish a serious threat to Jenrette’s safety or that Jenrette had no legal alternative to accepting the bribe. This undisclosed evidence therefore could not support exoneration based on duress and thus does not warrant a new trial. Finally, Jenrette argues that the government did not disclose certain evidence pertinent to Weinberg’s credibility. This evidence consists of payments from the Miami FBI office to Weinberg, evidence that Weinberg kept gifts solicited for his fictitious Arab clients, and Weinberg’s statement that if he didn’t “coach” persons accepting bribes, there would be no case. Although such evidence could impugn Weinberg’s character, his credibility could not be undermined more than it already had been by his sporadic memory, criminal background, and dubious motives. As the district court observed, “there seemed little to support the credibility of Weinberg____ [H]e had convenient lapses of memory, and he had a motive to lie. Moreover, his credibility was impeached by his background, a convicted con man, who stood to gain not only more money from Abscam depending upon how many government officials he could bring into the net, but some form of absolution from his probation requirements.” Jenrette, slip op. at 53-54, J.A. I at 72-73. The district court concluded, and we agree, that the voluminous evidence introduced at trial so completely undermined Weinberg’s credibility that any additional information concerning payoffs or solicited gifts could not have affected the outcome of the trial. In sum, we agree with the district court’s conclusion that the undisclosed evidence would not have affected the outcome of the trial and thus does not meet the materiality requirement of Brady. We therefore see no basis to grant a new trial based on the government’s alleged failure to disclose this information. III. Conclusion For the foregoing reasons, Jenrette’s conviction and the district court’s denial of his motion for acquittal or new trial are Affirmed. . Weinberg was convicted of fraud in 1977. In return for his agreement to cooperate with the FBI in setting up the Abscam operation, Weinberg received a sentence of three years’ probation. The Abscam operation was similar to "sting" operations that Weinberg had run in the past. United States v. Jenrette, Cr. No. 80-289, slip op. at 2-3 (D.D.C. July 30, 1983), Joint Appendix (J.A.) volume I (I) at 19, 21-22. See also United States v. Myers, 692 F.2d 823, 829 (2d Cir.1982); United States v. Jannotti, 673 F.2d 578, 581 n. 2 (3d Cir.) (en banc), cert. denied, 457 U.S. 1106, 102 S.Ct. 2906, 73 L.Ed.2d 1315 (1982). . The evidence adduced at trial indicates that Stowe had numerous contacts with Weinberg for over a year before Jenrette became involved in the Abscam operation. Stowe was evidently interested in obtaining financing from Weinberg for various business deals. In a conversation with Weinberg in October 1978, Stowe mentioned that he had a friend who was a congressman and stated: “He’s a[s] big a crook as I am...Transcript of Telephone Call on or about 10/17/78, J.A. volume III (III) at 919. Thereafter, hoping to make contact with Jenrette, Weinberg pursued Stowe with promises that his Arab clients might be willing to invest in Stowe’s business. . At the December 3 meeting, Stowe indicated that Jenrette was ready to handle the immigration problem but that Jenrette did not know the details of the arrangement. Trial Transcript (Tr.) (Amoroso), J.A. volume II (II) at 229. Amoroso told Stowe to explain the arrangement to Jenrette and find out whether Jenrette would agree to meet. Id. at 229-30. Stowe indicated that he understood Jenrette was to receive $50,-000 up front and $50,000 when the bill was introduced. Id. at 230. The following day Stowe called Weinberg to confirm the meeting. Transcript of Telephone Call of Dec. 4, 1979, J.A. III at 710-14. . See Transcript of Telephone Call of Jan. 25, 1980, J.A. III at 983-84; Transcript of Telephone Call of Jan. 25, 1980, J.A. III at 989; Transcript of Telephone Call of Jan. 26, 1980, J.A. III at 993-94. . The “threat" Jenrette refers to consists of a statement made by Weinberg to John Stowe, Jenrette’s co-defendant, during a phone conversation on December 4, 1979. The transcript reveals that Weinberg said: ”[Y]ou gotta remember one thing now Tony [Amoroso] is a tough guy. He’s [Jenrette] gotta... tell us he’s gonna do it." J.A. Ill at 712. . A defendant must show some threat of imminent harm to establish duress. A threat of future harm, or a threat made before the commission of the illegal act generally is not sufficient. See 1 Wharton's Criminal Law § 51 at 242-43 (C. Torcia 14th ed. 1978); United States v. Atencio, 586 F.2d 744, 746 (9th Cir.1978) (immediacy is a crucial element of the duress defense). If the threat is not of immediate harm, there generally will be ample opportunity to avoid the illegal act. The only act or statement in the record that could even remotely be construed as a threat against Jenrette was made over the telephone before the December 4 meeting to a third person. See note 5 supra. Additionally, Jenrette testified that he received an unrecorded, threatening phone call sometime after Jan. 1, 1980 but before the Jan. 7, 1980 meeting. Trial Tr. (Jenrette) vol. XVI at 3415-17. Neither threat, however, was sufficiently immediate to justify the defense of duress. . The district judge instructed the jury on both inducement and predisposition. The jury was instructed to consider first whether the evidence showed government conduct that could cause an undisposed person to commit a crime. If the jury found inducement, then it was instructed to determine whether Jenrette was in fact predisposed to take the bribe. Trial Tr. vol. XXII at 4748-50. By finding Jenrette guilty, the jury necessarily rejected the entrapment defense. We do not know, however, whether this defense was rejected because the jury did not find government inducement or because the jury concluded Jenrette was predisposed. The district judge, in his opinion denying Jenrette’s motion for acquittal or for a new trial, concluded that there was sufficient evidence to support a finding of inducement. Jenrette, slip op. at 26, J.A. I at 45. In addressing Jenrette’s entrapment argument, therefore, we will assume that inducement existed. . After discussing the immigration problems and indicating that he would like to study the immigration laws before accepting the money, Jenrette stated: "I don’t know that I've taken a bribe and I [don’t know] that... you’ve offered me a bribe.” Transcript of Meeting of Dec. 4, 1979, J.A. III at 764. At one point during the meeting, Jenrette suggested that the money be paid to his lawyer. ”[I]f I take it I'm gonna... have a lawyer take it.... That’s why I guess I’m hed 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_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". W-I CANTEEN SERVICE, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. No. 78-2283. United States Court of Appeals, Seventh Circuit. Argued June 12, 1979. Decided Sept. 25, 1979. Dennis M. White, Madison, Wis., for petitioner. Paul J. Spielberg, N. L. R. B., Washington, D. C., for respondent. Before PELL, SPRECHER and WOOD, Circuit Judges. PELL, Circuit Judge. The petitioner, W-I Canteen Service, Inc. (Canteen), seeks review of an order of the National Labor Relations Board. The Board has cross-applied for enforcement of its order. The Board found that Canteen violated sections 8(a)(1) and (3) of the National Labor Relations Act by discharging and otherwise penalizing employees for engaging in a sympathy strike. The determinative issue is the legality of the strike under two collective bargaining agreements negotiated by the petitioner and Retail Clerks Local 1354. Canteen argues that the agreements clearly and unequivocally waived the right to engage in sympathy strikes at its premises and that the Board’s interpretation of the agreements was erroneous. Also at issue is the Board’s determination that Canteen violated section 8(a)(1) of the Act by coercively interrogating one of its employees about her union activities. I. Facts A. The Collective Bargaining Agreements The petitioner, Canteen, services and maintains vending machines in the Rockford, Illinois, area. At its Rockford plant, Canteen and the Retail Clerks Union Local 1354 have been parties to three separate collective bargaining agreements covering three separate bargaining units. One agreement covers the service and maintenance unit. Members of this unit report to Canteen’s Rockford facility to pick up goods for delivery to the premises of customers. Three members of this unit report directly to a nearby Chrysler plant and remain there all day without reporting to the Canteen Rockford facility. Another bargaining agreement covers members of the bakery unit, which produces some of the goods sold in the vending machines. The third agreement covers clerical workers. The service and maintenance agreement (Service Agreement) was first negotiated in 1968 and was renegotiated in 1969, 1972, and 1975. The bakery unit agreement (Bakery Agreement) was first negotiated in 1968 and was renegotiated in 1971 and 1974. The clerical unit agreement was entered into for the first time in 1976. The 1975 Service Agreement, which covers the events at issue here, contains the following no-strike provision: ARTICLE XVIII STRIKE AND LOCKOUTS The Company and the Union agree that there will be no strike or lockout during the life of this Agreement so long as the Company and the Union abide by the terms of this Agreement or submit to arbitration any differences which may arise which are not covered by this Agreement. The following two provisions, appearing in separate articles of the same agreement, relate to picket lines: ARTICLE VII DISCHARGE AND DISCRIMINATION SECTION 3. The Company will not, as a condition of continued employment, require the employees to cross any picket line established on or in front of the premises of any other company. The individual or concerted refusal to pass such a picket line shall not constitute grounds for discipline, discharge, and is not to be considered as violating any provision written or implied which prohibits the Union from striking. * # * * * * ARTICLE XVII MISCELLANEOUS SECTION 9. In the event of a strike or lockout of any certified Union, it shall not be considered a violation of this Agreement for the members of the Union to refuse to deliver goods or service machines where such controversy is on. The Union agrees, however, that the accounts in the Company must be serviced and they will not in any way attempt to interfere with such servicing by Company personnel other than employees covered by this Agreement. An arbitration article in the 1975 Service Agreement permits either party to initiate arbitration in the event of proper exhaustion of preliminary procedures. The scope of the arbitration provision is defined in this way: The arbitrator shall have authority and jurisdiction to determine the propriety of the interpretation and/or application of the Agreement respecting the grievance in question, but he shall not have the power to alter or modify the terms of the Agreement. With respect to arbitrations involving discharge or discipline. the arbitrator shall determine if the discharge... was for just cause. The no-strike clause of the 1974 Bakery Agreement covering the events at issue here is identical to the Service Agreement provision quoted above. The scope of the arbitration clause also is identical to the clause in the Service Agreement. The Bakery Agreement, however, has no picket line permission clause. B. Past Conduct Under the Contracts The service and maintenance unit in Rockford has twice in the past engaged in a strike: during negotiations leading to their 1972 agreement and during negotiations leading to their 1975 agreement. The 1972 strike lasted two to three weeks. The 1975 strike lasted only a few days. During the 1972 strike, the service and maintenance unit employees picketed the Rockford premises. Canteen’s bakery did not operate, except to service the few contract obligations requiring performance during a strike. These obligations were carried out by supervisory personnel. None of the bakery unit employees crossed the picket line during the strike. No bakery employee was subjected to discipline for failure to report to work during the period of the strike. In 1973, Canteen discharged the service and maintenance employees who worked full-time at the Chrysler plant when they refused to cross a picket line established by auto workers at that plant. The employees protested and were reinstated. Canteen issued a written statement to the union concerning picket lines, which said in part: Since 1957, the company’s policy has been to allow any employee the right to decide whether or not to cross a picket line. This is a personal decision on his part and his decision to cross a picket line or not has been his decision to work or not to work. His refusal to not [sic] work is his decision to take, in essence, a voluntary lay-off. This has been the case in all previous instances, the employee has not worked until the picket line is removed or he is needed to help in other areas or routes. In no instance in the past have any employees been discharged, disciplined or discriminated against due to their refusal to cross a picket line, all have been treated equally and fairly. During the negotiations leading to the 1975 Service Agreement, the service and maintenance unit employees again went on strike and picketed Canteen’s Rockford premises. The bakery operations again were cut back. Some employees did not work part of the time during which the picket line was up. Some of the workers returned to work during the strike, and Canteen directed the remaining bakery employees to return to work. C. The 1976 Sympathy Strike In Madison, Wisconsin, Canteen maintains another facility engaged in the same business as the Rockford, Illinois, facility. Teamsters Local 695 was certified as the bargaining representative of the service and maintenance employees at this facility in March 1976. The Madison employees began a strike on May 4, 1976. On May 6, 1976, Retail Clerks Local 1354 held a meeting of employees of the three Rockford bargaining units. A Teamsters union representative attended the meeting and explained to the Rockford employees that the initial contract negotiations in Madison were not progressing satisfactorily and that the Madison employees were on strike. The Teamster representative proposed placing a picket line at the Rockford facility. The Rockford employees voted 14 to 14 on a request to support the Madison strike, and therefore no formal resolution of support was made. The Rockford local president, Merle Heitz, told the employees that it would be up to each individual to decide whether to honor a Teamsters picket line at the Rockford facility. After the meeting, one Rockford service and maintenance employee privately asked Heitz what would happen if Canteen should bring trucks across the Teamster picket line. Heitz told the employee that refusal to work under these circumstances would cost the employees their, jobs. Over the following weekend the Teamsters informed the Rockford local that a picket line would be set up in Rockford on Monday, May 10. The picket line was set up on that day at 5:00 a. m. Thirteen Rockford employees did not report to work. Of these thirteen, eleven were members of the service and maintenance unit. In the bakery unit, only one of the six employees did not report for work. In the clerical unit, one of the five employees, Lisa Erickson, did not report. On the morning of May 10, the first day of the picketing, eight of the employees who did not report for work met near the plant with a Retail Clerks business representative. The employees were advised to apply for food stamps and unemployment compensation. At another meeting later that morning an employee asked Merle Heitz what to do if Canteen called and requested them to return to work. Heitz instructed the employees to stay away from their phones. Heitz also instructed them that if the employer offered to bring work to them at a location where they would not have to cross the picket line, they would be fired if they did not perform the work. Canteen made efforts to reach the service and maintenance unit employees at home by telephone. The president of Canteen, Charles Swanson, ordered that employees who refused to come to work be told that they were fired. Canteen offered to deliver equipment to some of the employees so that they would not have to cross the picket line to perform their duties. None of the striking employees agreed to these terms. The next day, Lisa Erickson, the clerical unit employee, called Canteen to find out whether she would be allowed to return to work. Although Canteen had not called her for work or terminated her, Erickson had been told by Merle Heitz that the clerical unit contract was substantially different from the others and she would be subject to discipline if she did not return to work. Erickson was told by the company that she could return, and she reported for work the next day, May 12. When Erickson returned to work, she asked Charles Swanson whether she would be considered a continuing employee or a newly-hired employee. Swanson told Erickson that she would be considered a continuing employee. He wondered, however, why she refused to cross the picket line, because the office workers “weren’t union” and had reported to work. He also expressed surprise at Erickson’s refusal to cross the picket line, because Canteen had no record of her paying union dues or enrolling in the union. He asked her whether she had ever signed a union card or paid dues. Erickson responded that she thought she was a union member, but that she had never signed a card or paid dues. William Ambrosia was a service and maintenance unit employee with eight years of experience. He honored the picket line for two days, returning to work on May 12. On May 10, a Canteen supervisor called Ambrosia by two-way radio and told him to go home and to wait for a telephone call. In the late afternoon Ambrosia told his supervisor that he would not go to work because of the picket line. The supervisor informed Ambrosia that Canteen had applicants who wanted his job. The next day, Charles Swanson informed Ambrosia that he was fired. On May 12, Ambrosia reported to work and was told that he had to come back as a new employee and was required to fill out an application before being restored to his job. Another service and maintenance employee, John Eells, was ordered on the first day of the picketing to pick up his truck at a point away from the plant and go to work. Eells later called Charles Swanson and told him he would not work. Swanson told Eells that he was fired. On May 14, however, Swanson called Eells and told him he could return to work. When Eells reported to work, he was told that he could only return as a newly-hired employee and that he would have to fill out an application form. Although Eells and Ambrosia were restored to their previous rate of pay, they lost seniority and other benefits. From the beginning of the picketing to May 17, Canteen hired only one new service and maintenance employee and no employees in the bakery or clerical units. Of the thirteen employees who originally honored the picket line, ten had not returned to work by May 17. On May 18, Canteen sent a letter to the union terminating all thirteen employees. During the period of the sympathy strike, Canteen did not formally assert to the union that the work stoppage was a breach of the collective bargaining agreements. The Teamsters removed the picket line on July 6. On July 7, the ten remaining strikers reported to the Rockford facility with a union representative ready to return to work. Canteen informed the ten workers that they were no longer employed by the company. D. The Board’s Conclusion and Order The Board found that Canteen violated sections 8(a)(1) and (8) of the Act by firing the twelve sympathy strikers and by rehiring two of the strikers only as new employees. The Board also found that Canteen violated section 8(a)(1) of the Act by coercively interrogating Lisa Erickson concerning her union affiliations. The Board’s order requires the company to cease and desist from the unlawful conduct and from interfering in any other manner with the exercise of section 7 rights. The order directs Canteen to offer full reinstatement, back pay, and full benefits to the twelve employees fired for their strike activities and to post appropriate notices. II. Legality of the Sympathy Strike It is well-settled that section 7 of the Act protects employees who engage in a sympathy strike in support of a lawful, primary strike by another union. See, e. g., Gary Hobart Water Corp. v. NLRB, 511 F.2d 284, 287 (7th Cir. 1975), cert. denied, 423 U.S. 925, 96 S.Ct. 269, 46 L.Ed.2d 252; Teamsters Local 79 v. NLRB, 117 U.S.App. D.C. 84, 325 F.2d 1011 (D.C. Cir. 1963), cert. denied, 377 U.S. 905, 84 S.Ct. 1165, 12 L.Ed.2d 176. It is equally well-settled that employees may waive this right in the collective bargaining agreement. See Buffalo Forge Co. v. United Steelworkers of America, 428 U.S. 397, 405, 96 S.Ct. 3141, 49 L.Ed.2d 1022 (1976); NLRB v. Rockaway News Supply Co., 345 U.S. 71, 80-81, 73 S.Ct. 519, 97 L.Ed. 832 (1953). The contractual waiver of this right, however, must be “clear and unmistakable.” Gary Hobart Water Corp. v. NLRB, supra. In determining the scope of the unions’ contractual no-strike obligation, the courts have engaged in a case-by-case analysis of the language of the bargaining agreements in issue and on their operation within the factual circumstances of the labor controversy at hand. NLRB v. Keller-Crescent Co., 538 F.2d 1291, 1296 (7th Cir. 1976). See Rockaway News, supra; Iowa Beef Processors v. Amalgamated Meat Cutters, 597 F.2d 1138 (8th Cir. 1979). In light of these factors, we have concluded that both the 1975 Service Agreement and the 1974 Bakery Agreement clearly and unmistakably waived the employees’ right to honor picket lines at Canteen’s Rockford premises. A. The Service Agreement Eleven of the twelve striking workers covered by the Board’s order were subject to the 1975 Service Agreement. Despite the broad language of the no-strike clause in this agreement that there “will be no strike or lockout during the life of this Agreement so long as the Company and Union abide by the terms of this Agreement,” the Administrative Law Judge and the Board declined to interpret the clause as a waiver of the right to engage in a sympathy strike. The opinion of the ALJ, adopted by the Board, gave this premise for not applying the no-strike clause: . [I]n three recent decisions [citations omitted], the Board has held that similar or even more explicit no-strike language is not as clear as it might seem to be, and that implied in any such undertakings is an unspoken but real limitation, namely that the duty to refrain from striking is no broader than the terms of the grievance and arbitration machinery which is also contained in the contract. Sympathy strikes normally involve disputes outside the scope of the employees’ contract with their employer. It thus follows from the premise quoted above that a duty to arbitrate disputes under the contract will not preclude a sympathy strike. The Board has reasoned in this case that the Service Agreement arbitration clause, which gives the Arbitrator “authority and jurisdiction to determine the propriety of the interpretation and/or application of the Agreement respecting the grievance in question..” limits the no-strike obligation of the union strictly to grievances under the agreement. This principle of coterminous application of the arbitration and no-strike clauses, see Gateway Coal Co. v. United Mine Workers of America, 414 U.S. 368, 382, 94 S.Ct. 629, 38 L.Ed.2d 583 (1973), however, is not without exceptions. The Board’s slavish application of the principle to the no-strike clause before us disregards the plain language of the agreement. The principle is merely a rule of contract interpretation and the parties may by express language indicate their intent to interpret the no-strike and arbitration clauses differently. See id.; Gary Hobart Water Corp. v. NLRB, supra. See also Iowa Beef Processors, supra. The no-strike clause of the Service Agreement expressly extends beyond the scope of the arbitration clause. It not only applies as long as parties abide by the agreement, which of course includes the arbitration of disputes under the contract, but also applies as long as “the Company and the Union... submit to arbitration any differences which may arise which are not covered by the Agreement." (Emphasis added). The Board’s opinion does not mention this language at all. From this language in the no-strike clause we conclude that the Board erroneously applied the principle of coterminous application to the arbitration and no-strike clauses. These clauses are analytically distinct, and their meaning must be determined separately and according to the intent of the parties. See Gateway Coal, supra, 414 U.S. at 382, 94 S.Ct. 629; Iowa Beef Processors, supra, 597 F.2d at 1145. Having concluded that the no-strike clause contains no implied exclusion of sympathy strikes, we now turn to the express terms of the clause to determine whether they clearly and unmistakably waive the right to engage in a sympathy strike at the employer’s premises. As a preliminary matter, we note that the Board cannot find support in any judicial or Board decisions for a rigid requirement that the no-strike clause contain the specific term “sympathy strike” before finding a waiver. A number of cases have interpreted general no-strike clauses to preclude sympathy strikes. Rockaway News, supra; Iowa Beef Processors, supra; Montana-Dakota Utilities Co. v. NLRB, 455 F.2d 1088 (8th Cir. 1972); Hearst Corp., Baltimore News American Division, 161 NLRB 1405 (1966), enf’d sub nom. News Union of Baltimore v. NLRB, 129 U.S.App.D.C. 272, 393 F.2d 673 (D.C. Cir. 1968). Conversely, we do not mean to imply that the general language of a broad no-strike clause, when examined in isolation, will suffice to waive the right to engage in sympathy strikes. See Mastro Plastics Corp. v. NLRB, 350 U.S. 270, 76 S.Ct. 349, 100 L.Ed. 309 (1956). Rather, the controlling principle of interpretation of collective bargaining agreements requires that the contract be read as a whole and in light of the law relating to it when made. Id., 350 U.S. at 279, 76 S.Ct. 349. As we have noted above, the 1975 Service Agreement contains two picket line clauses in addition to the broad no-strike clause. First, the picket line clause of Article VII, section 3 permits service and maintenance employees to honor picket lines “on or in front of any other company.” Most significantly, this section, by its express terms, is an exception to the no-strike clause; it says that this specific form of sympathetic activity “is not to be considered as violating any provision written or implied which prohibits the Union from striking.” It follows from the phrasing of this clause as an express exception that the no-strike clause relates to sympathy strikes as well. The meaning of the no-strike clause is further clarified by reading it in conjunction with the other picket line clause in Article XVII, section 9. This clause contains a union promise not to interfere during a sympathy strike with Canteen’s efforts to service customers with non-union employees. The clause also states that “The Union agrees... that the accounts of the Company must be serviced.. ” In Montana-Dakota Utilities, supra, the court of appeals relied on a similar general statement in the applicable no-strike clause to determine that a limited picket line permission clause served merely as an exception to what was otherwise a prohibition of sympathy /strikes in the no-strike clause. See 455 F.2d at 1092-94. The NLRB argues in reply that an affirmation of the statutory right to honor pickets at other premises does not impliedly waive other statutory rights, namely the right to honor pickets at the employer’s premises. Canteen, however, has not argued that the picket line permission clauses express such a waiver. The clauses are crucial here because they delineate the boundaries of the waiver expressed in the no-strike clause. When the no-strike clause was drafted in 1966, the Board law had not developed the rigid presumption, see, e. g., Keller-Crescent Co., supra, that general no-strike clauses do not waive the right to engage in sympathy strikes. Apparently because knowledge of this recently developed presumption in the Board law cannot be imputed to the drafters of the collective bargaining agreement, the Board relies on a sentence in the arbitration clause that says “the parties are mindful of and have no wish to detract from any employee right guaranteed by law,” as contractually creating a presumption of non-waiver, which may limit the scope of the no-strike clause. This argument is persuasive only if the quoted phrase is examined out of its context. Examined in context, the quoted phrase modifies the stated preference that union officials screen employee grievances. Its effect is to preserve statutorily guaranteed direct employee access to grievance machinery without union involvement. For the Board to interpret this phrase as bearing on the no-strike clause ignores the common sense meaning of the phrase, “in this regard.” Although we are satisfied that the language of the no-strike clause is sufficiently clear to preclude sympathy strikes at Canteen’s Rockford facility, we nevertheless turn to a discussion of the extrinsic evidence of intent in the record, most of which relates to bargaining history. Neither side disputes its relevance to the issue, and, in this case, the evidence shows that the parties specifically considered the issue of sympathy strikes and that the union has foregone this right. The no-strike clause was proposed by the union in 1966 during negotiations leading to the first contract and has remained unchanged in the contract ever since. The union also proposed at that time a clause specifically reserving the right to honor picket lines at the employer’s premises, which was rejected. Furthermore, the Article XVII, section 9 picket line clause did not recognize the company’s need for continuous service. This clause was added at the request of the company. The rejection of the union’s proposed employer premises picket line clause left only the general no-strike clause and the picket line clauses referring to other premises in Article VII, section 3 and Article XVII, section 9. The NLRB found that this evidence of bargaining history does not show a waiver and in its brief cites Timken Roller Bearing Co. v. NLRB, 325 F.2d 746 (6th Cir. 1963), cert. denied, 376 U.S. 971, 84 S.Ct. 1135, 12 L.Ed.2d 85; NLRB v. Otis Elevator Co., 208 F.2d 176 (2d Cir. 1953); NLRB v. J. H. Allison Co., 165 F.2d 766 (6th Cir. 1948); and Leland-Gifford Co., 95 NLRB 1306 (1951), enf’d in relevant part, 200 F.2d 620 (1st Cir. 1952) to support this conclusion. These cases, however, merely hold that a union’s failure to gain express recognition of a right will not evidence a waiver when the collective bargaining agreement is silent on the issue. As we have already noted, this contract contains express provisions on the subject of sympathy strikes, and the evidence of defeated proposals during negotiations is therefore reliable evidence that the language waives the right. See Rockaway News Co., supra (evidence offered to show employer rejected union picket line clause shows broad no-strike clause was a waiver); News Union of Baltimore, supra (proposal by union during negotiation specifically exempting picket from no-strike clause shed light on intended scope of no-strike clause; court enforces NLRB order interpreting the no-strike clause as a waiver). We shall also consider only briefly the evidence of conduct offered by the parties, which was not specifically considered by the AU or the Board as reflecting on the meaning of the agreement. The record contains evidence of statements by the union leadership that for a worker to refuse work because of the picket line would be taking his job in his hands. Also there was testimony that the strikers were told not to answer their phones so that the employer could not order them to perform work. It is unlikely that a union leader would advise such conduct in the absence of a waiver: The union tradition of honoring picket lines is admittedly strong, but, just as its waiver in formal contract language is not to be precipitately assumed, so it is unlikely that responsible, experienced and authoritative union leaders will lightly interpret their own handiwork as barring its observance. News Union of Baltimore, supra, 393 F.2d at 678. Although the Board’s interpretation of contract provisions is entitled to deference, see id., the interpretation of the Service Agreement urged here is unsupported by the language of the agreement and disregards much of the relevant extrinsic evidence. Accordingly, enforcement of the Board’s order regarding the eleven service and maintenance unit employees must be denied. B. The Bakery Agreement The Board’s opinion and its brief before this Court contain virtually no consideration of the Bakery Agreement separate from the Service Agreement. The parties to the agreements were the same, and Merle Heitz, the president of the union, which represented both units, testified that the broad no-strike clause of the Bakery Agreement was modeled on the Service Agreement. It is true that the Bakery Agreement contains no picket line clause, but these employees do not travel. It was thus unnecessary for the union to seek such an exception to the no-strike clause, and the Board found that this was the reason for its omission. We therefore cannot consider the absence of the exception as indicative of a different intent of the parties under the Bakery Agreement. In its brief, the Board has described evidence, summarized supra, that the bakery unit employees engaged in a sympathy strike to honor service unit picketing during negotiation of the 1973 and 1975 Service Agreements. Any assertion by the Board, however, that the employer’s failure to discipline bakery employees during these periods constituted condonation of a sympathy strike is not supported by substantial evidence. Significantly, the Board gave little consideration below to these work stoppages in interpreting the contracts. The president of Canteen, Charles Swanson, testified that when service unit employees struck, Canteen could not supply bakery goods to any account unless the contract with the customer required it, because of the absence of delivery personnel. From this evidence, it is difficult to conclude that the failure to discipline bakery workers constituted employer acceptance of a sympathy strike at its premises. In fact, the evidence shows that the employer asked one bakery worker to return to work before the end of the brief 1975 strike, and that during this strike, the other bakery workers reported to work after only a few days. Finally, from the evidence it appears that the union did not interpret the previous shut-downs as sympathy strikes. The union business agent testified that it was his understanding that in 1972 the company told bakery workers to stay home. In conclusion, we emphasize that the Board has presented no evidence to support an interpretation of the no-strike clause of the Bakery Agreement different from that of the Service Agreement. The Board has given little separate treatment to the Bakery Agreement in its decision and in its brief in this court. In these circumstances, we conclude that the Bakery Agreement, like the Service Agreement, waives the right to engage in a sympathy strike. Accordingly, enforcement of the Board’s order relating to Florence Jahnke, the bakery employee, is also denied. To conclude our discussion of the waiver issue, we must question the Board’s practical defense of its principles of contract interpretation. The Board says in its opinion: The employees who were called upon during the early morning hours of May 10 to decide whether or not to cross the Teamsters picket at Rockford could benefit from none of these niceties of litigation and had at their disposal none of these aids [e. g., extrinsic evidence of bargaining history and conduct of the parties] to contract interpretation. Yet they had to stake their jobs on the correctness of their position. The contracts in issue, however, said that “there will be no strike or lockout during the life of this Agreement...,” and we are inclined to think that, to the extent workers actually rely on the language of the contract in determining their actions, any layman unschooled in current Board law presumptions would conclude from this language alone that the contract precluded the strike at issue here. III. The Interrogation of Lisa Erickson In finding that the conversation between Charles Swanson and Lisa Erickson constituted a coercive interrogation in violation of section 8(a)(1) of the Act, the Board said only that “the context in which this questioning occurred was clearly coercive.” In its brief, the Board offers some post hoc elaborations on this finding, asserting that the employer “initiated the subject of her union activities,” and emphasizing that twelve of Erickson’s co-workers were eventually fired or penalized. In A & R Transport, Inc. v. NLRB, 601 F.2d 311 (7th Cir. 1979), we held that an interrogation should be judged by the “totality of the circumstances, including the purpose of the interview, the entire statement made to the employee, and the scope of the questioning.” 601 F.2d at 313. Judged under this standard, the record before the Board does not contain substantial evidence of coercion. It is not disputed that Erickson approached Swanson to determine whether she would be made a new employee for participating in the strike, and thus, the record refutes the Board’s assertion that Swanson initiated the subject. Equally clear is that Erickson understood the purpose of the employer’s questions and that the questions did not go beyond the purpose of the interview. The fact alone that other strikers eventually were fired does not make this interview coercive. For the reasons herein set forth the petition for review is granted and enforcement of the Board’s order is denied. ENFORCEMENT DENIED. . The no-strike clause in the Bakery Agreement was the same at the time of the 1972 service and maintenance unit strike as it was at the time of the events at issue here. . Other employees in the 25 to 30 member unit either crossed the picket line or picked up their trucks at other locations. . Canteen administers a check-off of union dues from its payroll in accordance with the contract. The contract does not contain a union security clause, however. . Lisa Erickson, William Ambrosia, and John Eells of course had already been rehired, but use of the unemployment files as the source for the names of the strikers led to erroneous inclusion of these names. . But see NLRB v. Keller-Crescent, supra (when legality of sympathy strike is an arbitrable issue and employer seeks arbitration, the union is under an implied duty not to strike pending arbitration of the dispute as to the legality of the strike). . In its brief before this court the Board argues for the first time that the inclusion of the term “not” in the no-strike clause “seems inadvertent.” The Board’s reasoning is that the effect of the term “not” would be to “exclude from arbitration the only kind of ‘differences’ which an arbitrator is qualified to resolve under the terms of this agreement.” We disagree. The effect of this provision is to create an additional duty not to strike and to arbitrate over events not foreseen by the parties. The record in fact shows that at one time the employer expressly proposed removal of the term, “not,” presumably for the purpose of narrowing the scope of its duty to arbitrate. The union, however, rejected the employer’s contract package of which this proposal was a part. It would seem that the deletion of an inadvertent term would easily have gained the consent of both parties. Furthermore, the term “not” appears in the Bakery Agreement no-strike clause. The persistent reappearance of this term is completely inconsistent with its being inadvertent. . In fact the ALJ’s opinion said that one of these NLRB decisions, Hearst Corp., supra, must have been overruled sub silentio by the Board’s more recent decisions in, for example, Kellogg Co., 189 NLRB 948 (1971), enf'd, 457 F.2d 519 (6th Cir. 1972) and Keller-Crescent Co., 217 NLRB 685, enforcement denied, 538 F.2d 1291 (7th Cir. 1976). In Hearst the Board held that although the language of a broad no-strike clause alone did not clearly and unambiguously waive the right to strike, evidence of bargaining history did show that the language was intended to create such a waiver. In its Decision and Order in this case, the Board expressly rejected that portion of the ALJ’s opinion and reaffirmed Hearst, saying, “In Hearst, as in the other [more recent] cases, the Board looked to collateral evidence of intent of the parties to interpret the meaning of ambiguous no-strike clause language.” . The clause said that “the Company is engaged in public service requiring continuous operation, and it is agreed, in recognition of such obligation... that, during the term of this Agreement there shall be no collective cessation of work by members of the Union.” 455 F.2d at 1090. . In Montana-Dakota Utilities, the picket line clause expressly prohibited discharge of sympathy strikers, but said nothing about discipline of employees for honoring a picket line. The court held that discipline for such activity was permitted by the no-strike clause. . The section says: It is the intention of the parties hereto to conduct their affairs in such a manner that grievances will not arise. The Union will do its best to see that baseless and dilatory claims of grievance will not be processed, and to that end it is the desire of the parties that any employee believing himself to have a grievance discuss the matter with the Steward and the Business Representative of the Union before embarking upon the procedure for adjusting grievances herein set forth. In expressing their desire in this regard, the parties are mindful of and have no wish to detract from any employee right guaranteed by law. . The proposed clause said: Neither shall it be a violation of this Agreement nor shall any employee be discriminated against for refusing to work for the Employer when there is a picket line on the Employer’s premises, recognized by both the Local Union and the Retail Clerks International Association.. . In 1969 the Article VII, section 3 picket line clause was changed slightly. In 1966 the clause referred to pickets “on or in front of the premises or at the premises of any other company.” The italicized phrase was removed in 1969. The employer representative testified that the phrase was removed because of employer concern about a picket line at the premises by the then newly-organized bakery unit. The union representative also testified that the possibility of such a picket line was discussed. The ALJ, however, disregarded the testimony that the deletion of the phrase was related to Canteen’s concern about picketing at its premises, reasoning that the testimony was self-serving and irrelevant because the Article VII, section 3 picket line clause was always clearly limited to other premises. We cannot agree that the language was as unambiguous as the ALJ seemed to think it was. It appears logically consistent to us in the light of the contract proposal rejections in 1966 that the employer Question: From which district in the state was this case appealed? A. Not applicable B. Eastern C. Western D. Central E. Middle F. Southern G. Northern H. Whole state is one judicial district I. Not ascertained Answer:
songer_direct1	A	What follows is an opinion from a United States Court of Appeals. Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for the defendant. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards. MURPHY v. UNITED STATES. Circuit Court of Appeals, First Circuit. August 6, 1925. No. 1831. Jury <§=>131 (4) — No abuse of discretion in court’s limiting examination for bias and prejudice. For trial judge to refuse to allow counsel personally to examine jurors on their voir dire along a line suggested by him, which from its nature might have been extended to great length, and then on counsel suggesting no questions to be submitted by the court, as the judge told counsel he might do, to state to tho jurors the purport of the indictment, and ask if there was any reason why any of them could not fairly and impartially try defendant, and direct that if there was he should stand aside, held, not unwise or arbitrary or abuse of discretion. In Error to the District Court of the United States for the District of Massachusetts; James M. Morton, Judge. John A. Murphy was convicted under Cr. Code, § 37, and brings error. Affirmed. George D. Zahm, of New York City, for plaintiff in error. George R. Farnum, of Boston, Mass. (Harold P. Williams, of Boston, Mass., on the brief), for defendant in error. Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges. Certiorari denied 46 S. Ct. 120, 70 L. Ed. —. JOHNSON, Circuit Judge. The defendant, one Ryan, and one House were indicted under section 37 of the Criminal Code (Comp. St. § 10201) for conspiring to commit an offense against the United States by fraudulently altering certain registered United States Liberty bonds by erasing the name of the original owner thereon and substituting the name of House, and thereafter negotiating them. House and Ryan pleaded guilty. The defendant was convicted, and sentence imposed. The case is here upon thirty assignments of error; but only three have been argued. Two of these relate to the refusal of the District Judge to permit counsel for the defendant to examine the jurors upon the voir dire or to interrogate them himself “as to their attitude towards this sort of a case and to .determine whether, if selected as jurors, they would be fair and impartial.” Defendant filed a motion to set aside the verdict and for a new trial, which was denied, and this is assigned as error. The' grounds for this motion were stated to be “that the verdict is contrary to the weight of evidence, contrary to the law, and upon the further ground that the defendant was deprived of a constitutional right because the court refused to permit counsel for the said defendant to interrogate the prospective jurors on their voir dire,” and refused to interrogate them, as alleged in the other two assignments of error. There is no merit in the defendant’s contention that the verdict is against the weight of evidence, as the only question before us is whether there was any evidence to support the verdict; but of this there can be no dofcbt. The sole question for our consideration, then, is whether defendant was deprived of any constitutional right because of the alleged refusal of the District Judge to permit counsel to interrogate the jurors on the voir dire or to interrogate them himself, as requested by defendant. The record discloses that, when the jury was being impaneled, Mr. Zahm, the defendant’s counsel, stated that he desired to interrogate the jurors as they were called, substantially according to the practice which prevails in the state of New York and in the federal courts of that state. The- court explained to Mr. Zahm. the practice which prevails in Massachusetts and the. United States courts in Massachusetts. Mr. Zahm replied that he thought it did not meet the constitutional requirements. The following colloquy then occurred: “The Court: You may suggest to me any questions that you would like to have put to the jury, and I will consider them. “Mr. Zahm: We should like to interrogate the jurors as to their attitude towards this sort of case, and to determine whether, if selected as jurors, they would be fair and impartial. “The Court: No; I should not permit examination along that line, and I will save your exception. Perhaps you had better state more fully what line your examination would follow. “Mr. Zahm: My line would be whether or not they ever lost any bonds; whether the fact of an indictment would prejudice them against the defendant; whether they felt they could sit as jurors fairly; whether, their attitude is such that, if they were in the position of the defendant, they would select a man of similar mental attitude to pass judgment. I want to examine the prospective jurors upon their voir dire, in order to determine whether their mental attitude is such that, if selected, they can give the defendant a fair and impartial trial under the Constitution of the United States. My questions would follow those general lines. “The Court: I see no occasion for such a voir dire, and should not permit it. I will adhere to the Massachusetts practice. “Mr. Zahm: I recognize that the practice here is as the court states; but I say that the defendant has the right to interrogate jurors to determine for himself whether they are fair and impartial to try the case. “The Court: It is a matter of discretion with the court. “Mr. Zahm: And I may have an exception to your honor’s ruling? “The Court: Yes.” The record contains the following statement : “After the panel had been called and taken their seats, but while the right of challenge was still open, the court stated to the jurors the purport of the indictment, and inquired specially if there was any reason why any of them could not fairly and impartially try the defendant on the indictment. The court directed that, if such was the fact, the juryman concerned should make it known and stand aside. No juror did stand aside. Both parties were left free to exercise peremptory challenges in the usual manner. The jury was then sworn and the trial proceeded.” Under the Massachusetts' practice, an examination of jurors upon their voir dire may be made under the direction of the court, and here, as elsewhere, the ’court, in the exercise of a sound judicial discretion, may determine the extent and character of such examination. By the exercise of sound, judicial discretion it will be understood that the court is not to exercise discretion in an arbitrary or unwise manner; but that such examination shall be permitted as may disclose any prejudice or bias on the part of jurors. In Connors v. United States, 158 U. S. 408, 413, 15 S. Ct. 951, 953 (39 L. Ed. 1033), the court, speaking through Mr. Justice Harlan, said: “It is quite true, as suggested by the accused, that he was entitled to bo tried by an impartial jury, that is, by jurors who had no bias or prejudice that would prevent them from returning a verdict according to the law and evidence. It is equally time that a suitable inquiry is permissible in order to ascertain whether the juror has any bias, opinion, or prejudice that would affect or control the fair determination by Mm of the issues to be tried. That inquiry is conducted under the supervision of the court, and a great deal must, of necessity, be left to its sound discretion. This is the rule in civil cases, and the same rule must be applied in criminal cases.” Although the District Judge did not allow defendant’s counsel, personally, to examine the jurors along the line suggested j>y him, which, from the nature of the inquiry suggested, might have been extended to great length and have led to long delay, he did state that counsel might suggest such questions as he would like to have put to the jurors. Counsel did not propose any questions to be submitted by the court, but insisted upon his right to interrogate them personally, and stated, at some length, what his line of examination would be, insisting that he had the right to conduct such an examination. The opinion expressed by Justice Harlan, before quoted, has become the guide of all federal courts in the selection and impaneling of juries, and we know of no decision by the Supreme Court, nor has any been called to our attention, which does not place the method in which this shall be done within the sound judicial discretion of the presiding judge. ¥or convenience, and because the method adopted by the-highest court of the state in which the District Court is hold is well known to practitioners, that method has been usually adopted; and in the state of Massachusetts the examination has been conducted under the direction of the presiding judge. In speaking of this, Judge Holmes, in Commonwealth v. Poisson, 157 Mass. 510, 512, 32 N. E. 906, 907, says: “It would be unfortunate if all control of such an examination should be taken from the court, and we do not interpret the Statute of 1887, c. 149, as having that effect. On the contrary, the power given by the Statute of 1887 to the parties to make the examination provided for by the public statutes is, in terms, to make it ‘under the direction of the court.’ ” The record in this case discloses that, while the right to challenge was still open, “the court stated to the jurors the purport of the indictment and inquired 'specially if there was any reason why any of them could not fairly and impartially try the defendant on the indictment,” and directed “that, if such was the fact, the juryman concerned should make it known and stand aside. No juror did stand aside.” The record also discloses that “both parties were left free to exercise peremptory challenges in the usual maner.” We think there is no ground for holding that the action of the presiding judge was unwise or arbitrary, but that what he did was within the exercise of a sound judicial discretion. The judgment of the District Court is affirmed. Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained Answer:
songer_state	47	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". WILDER ENTERPRISES, INC., a Virginia Corporation, Appellant, v. ALLIED ARTISTS PICTURES CORPORATION, American International Pictures, Inc., Avco Embassy Pictures Corporation, Buena Vista Distribution Company, Inc., Columbia Pictures Industries, Inc., Paramount Pictures Corporation, Twentieth Century Fox Film Corporation, United Artists Corporation, Universal Film Exchanges, Inc., Warner Brothers Distributing Corporation, ABC Southeastern Theatres, Inc., General Cinema. Corporation of Virginia, Inc., American Multi-Cinema, Inc., Appellees, and Metro-Goldwyn Mayer, Inc., General Cinema Corporation, Defendants. No. 79-1175. United States Court of Appeals, Fourth Circuit. Argued Jan. 10, 1980. Decided Oct. 3, 1980. Stanley E. Sacks, Norfolk, Va. (Girard C. Larkin, Jr., William L. Perkins, III, Sacks, Sacks & Perkins, Norfolk, Va., on brief), for appellant. Lewis T. Booker, Richmond, Va. (William F. Young, L. Neal Ellis, Jr., Hunton & Williams, Richmond, Va., Daniel R. Murdock, Donovan, Leisure, Newton & Irvine, New York City, Robert M. Hughes, III, Seawell, McCoy, Dalton, Hughes, Gore & Timms, Norfolk, Va., on brief), for distributors appellees. Norman G. Knopf, Washington, D. C. (Warren L. Lewis, Bergson, Borkland, Margolis & Adler, Washington, D. C., Thomas J. Harlan, Jr., William M. Sexton, Doumar, Pincus, Knight & Harlan, Richard B. Spindle, III, Thomas G. Johnson, Jr., Guy R. Friddell, III, Willcox, Savage, Lawrence, Dickson & Spindle, P. C., Norfolk, Va., on brief), for exhibitors appellees. Before BUTZNER and WIDENER, Circuit Judges, and ROBERT J. ST AKER, United States District Judge for the Southern District of West Virginia, sitting by designation. . The necessary elements for recovery under § 1 of the Act are: (1) an agreement, conspiracy, or combination among the defendants in restraint of trade; (2) injury to the plaintiffs business and property as a direct result; (3) damages that are capable of reasonable ascertainment and are not speculative or conjectural. Admiral Theatre Corp. v. Douglas Theatre Co., 585 F.2d 877, 883-84 (8th Cir. 1978). An attempt to monopolize or a conspiracy to monopolize the exhibition of first-run films in a geographic area of effective competition satisfies the relevant product and market requirements of § 2 of the Act. United States v. Paramount Pictures, Inc., 334 U.S. 131, 172-73, 68 S.Ct. 915, 936-37, 92 L.Ed. 1260 (1948). BUTZNER, Circuit Judge: In this antitrust case, Wilder Enterprises, Inc., a movie exhibitor, appeals from an order of the district court directing a verdict for three competing exhibitors and ten national film distributors at the close of Wilder’s evidence. Wilder charges that the appellees deprived it of first-run films and caused the closure of its theaters by entering into an agreement to allocate first-run films in violation of the Sherman Act. 15 U.S.C. §§ 1 and 2. Viewing the evidence and all reasonable inferences that can be drawn from it in the light most favorable to Wilder, we conclude that the judgment in favor of the three exhibitors and six of the distributors must be vacated. There is sufficient proof against them to warrant submission of the case to a jury. We affirm the judgment in favor of the other appellees. I The exhibitor appellees are General Cinema Corporation of Virginia, Inc. (General), American Multi-Cinema, Inc. (AMC), and ABC Southeastern (ABC). They are chain or circuit exhibitors who operate in many markets, including Norfolk-Virginia Beach. The distributor appellees, whose judgments we affirm, are Allied Artists Pictures Corporation, American International Pictures, Inc., Avco Embassy Pictures Corporation, and Buena Vista Distribution Company, Inc. We vacate the judgments in favor of Columbia Pictures Industries, Inc., Paramount Pictures Corporation, Twentieth Century Fox Film Corporation, United Artists Corporation, Universal Film Exchange, Inc., and Warner Brothers Distributing Corporation. These companies are national distributors, who license first-run films by soliciting bids or offers to negotiate from exhibitors in specific geographic markets. Frequently, the distributors’ solicitation letters contain suggested minimum terms. Wilder is an independent film exhibitor, who operated two theaters in the Norfolk-Virginia Beach market. Before 1971 it had no trouble acquiring first-run pictures from the distributors. Starting in 1971, however, Wilder’s efforts to obtain films met with less success although it continued to bid or negotiate as it had in the past. During 1971 and 1972 Wilder realized that its efforts to rent first-run films were futile. As a result, it responded to the distributors’ solicitations less frequently and began showing x-rated movies. From 1973 until its theaters closed in 1975, only one film distributed by an appellee was licensed to its Norfolk-Virginia Beach theaters. Wilder attributes the failure of its theaters to an agreement by the circuit exhibitors, ABC, AMC, and General to allocate among themselves the right to bid or negotiate for films offered by the distributors and to the participation of the distributors in this division of the market. This type of agreement is commonly known as a split or split of product. After initial denials, the exhibitors stipulated to the existence of the split and the method of its operation. The stipulation disclosed that periodically the exhibitors met and decided on the basis of rotation which of the three would bid or negotiate for a specific picture; the other two would refrain from competing. Both the exhibitors and the distributors contend that the evidence is insufficient to establish either that the distributors participated in the split or that the split infringed on Wilder’s opportunity to compete. These contentions, which were sustained by the district court, are critical, and the following brief summary of the law pertaining to splits will place them in perspective. Film distributors are free to refuse to license films to any exhibitor when their decisions are based on independent business judgment. United States v. Colgate, 250 U.S. 300, 307, 39 S.Ct. 465, 468, 63 L.Ed. 992 (1919); Lamb’s Patio Theatre v. Universal Film Exchanges, 582 F.2d 1068 (7th Cir. 1978). Moreover, an exhibitor does not have a claim against other film exhibitors who, without distributor involvement, “split” the films they will bid on. Seago v. North Carolina Theatres, Inc., 42 F.R.D. 627 (E.D.N.C.1966), aff’d per curiam, 388 F.2d 987 (4th Cir. 1967). Accord, Admiral Theatre Corp. v. Douglas Theatre Co., 585 F.2d 877 (8th Cir. 1978); Dahl, Inc. v. Roy Cooper Co., 448 F.2d 17 (9th Cir. 1971); Viking Theatre Corp. v. Paramount Film Distributing Corp., 320 F.2d 285 (3d Cir. 1963), aff’d per curiam by an equally divided court, 378 U.S. 123, 84 S.Ct. 1657, 12 L.Ed.2d 743 (1964); Brown v. Western Massachusetts Theatres, Inc., 288 F.2d 302 (1st Cir. 1961); Royster Drive-In Theatres v. American Broadcasting-Paramount Theatres, Inc., 268 F.2d 246 (2d Cir. 1959). An exhibitor has a cause of action when distributors participate in the split and deny the exhibitor access to films. Such an arrangement creates an impermissible horizontal conspiracy among the exhibitors operating the split and a vertical conspiracy between them and the participating distributors. It is a type of group boycott that violates the antitrust laws. Klor’s v. Broadway-Hale Stores, 359 U.S. 207, 79 S.Ct. 705, 3 L.Ed.2d 741 (1959). See Dahl, Inc. v. Roy Cooper Co., 448 F.2d 17,19 (9th Cir. 1971); II E. Kintner, Federal Antitrust Law §§ 10.27-31 (1980). In short, Wilder must show that it was denied the opportunity to obtain films enjoyed by ABC, AMC, and General because the distributors participated in the split. Only one independent exhibitor, K. W. Andrews, participated in the split. His complaint about his inability to get first-run pictures induced an officer of AMC to invite him to a meeting of the exhibitors engaged in the split. Although Andrews attended a number of meetings, he was not allowed to bid for exclusive licenses. Rather, he was permitted to bid on a day and date basis for any picture AMC got in the split. ABC and General declined to allow Andrews to play day and date any pictures they received in the split. Andrews testified at length about the distributors’ involvement in the split. At one of the meetings, an AMC employee called a Universal official to check on the license terms Universal was requesting for High Plains Drifter. Universal had not yet sent bid solicitation letters to exhibitors in the market. The AMC employee stated that he had received the film in the split and asked if Andrews could play the picture day and date with AMC. Andrews talked with the Universal official who asked him if he had “been allowed in.” When Andrews gave an affirmative response, the official said Andrews would be allowed to play the film day and date with AMC if he could satisfy the $5,000 requested guarantee. Subsequently, when Universal sent its bid solicitation letter to all exhibitors in the market, it offered to license the film on a day and date basis. Eventually, it was licensed on those terms to AMC and Andrews. When Andrews participated in the split, bid solicitation letters for films split to AMC allowed offers to exhibit the film on a day and date basis. The exhibitors also called distributors during split meetings to verify the release dates of pictures under consideration. If Andrews missed a split meeting, he would sometimes call the distributors to find out what films he had received in the split. Occasionally, the distributors would call him with the information. These conversations took place before bid solicitations were sent to all of the exhibitors in the market. On one such occasion an employee of Fox called Andrews to tell him that he and AMC had received Towering Inferno in the split and that the guarantee would be $50,000. Andrews said that he wasn’t positive he could pay the guarantee. Fox then sent out a solicitation letter offering to license the picture on a day and date basis. Andrews was told by a Fox employee that if he couldn’t pay the suggested guarantee, the picture would be licensed to AMC. When Andrews couldn’t furnish the guarantee, the bid solicitation was withdrawn and reissued on an exclusive basis. Fox licensed the picture to AMC alone. On another occasion, a Columbia employee informed Andrews, prior to the solicitation letter on The Last Detail, that Andrews and AMC had received that picture in the split. Andrews said that he could play the picture, and it was licensed to Andrews and AMC. Another example of distributor participation in the split involved The Man With a Golden Gun. Prior to the time the bid solicitation was circulated, Andrews called an employee of United to inquire whether AMC got the picture and to inform him that Andrews was to play day and date. The employee said AMC had the picture and told Andrews the specifics as to play date, percentages, and hold over. United subsequently licensed the film to AMC and Andrews. Andrews brought another independent exhibitor, Schoenfeld, to a split meeting, but the exhibitors objected to his participation. Schoenfeld also gave evidence of distributor participation in the split. He testified that he had called a Fox employee to ask about the availability of a picture, and the employee responded that he wasn’t sure when the picture would be available, but he would know after the next meeting of the “Norfolk Surgical Society.” Schoenfeld testified that after he had been excluded from the split, “I received no first-run product. There was no way I could receive a product the way the system was operated.” We conclude that this evidence was sufficient to submit to the jury the issue of the existence of a conspiracy among ABC, AMC, General, Columbia, Fox, Paramount, United Artists, Universal, and Warner to violate the Act. Factual differences distinguish this case from Seago v. North Carolina Theatres, Inc., 42 F.R.D. 627 (E.D.N.C. 1966), aff’d per curiam, 388 F.2d 987 (4th Cir. 1967), and Admiral Theatre Corp. v. Douglas Theatre Co., 585 F.2d 877 (8th Cir. 1978). In Seago there was no evidence of the distributors’ knowledge of the split. In Admiral, although the distributors knew of the split, they did not participate in it. Here, in contrast, there is direct and circumstantial evidence that these distributors participated in the split by subsequently circulating letters soliciting bids in conformity with the arrangements derived from the split. Most of the films were then licensed as split. This case also differs from Viking Theatre Corp. v. Paramount Film Distributing Corp., 320 F.2d 285 (3d Cir. 1963), where the court emphasized: “There is no evidence that any exhibitor requesting participation in the split of product would have been excluded.” 320 F.2d at 293. Here, to the contrary, there is evidence that ABC, AMC, and General split the product among themselves and excluded others. On cross examination Andrews testified that he had no knowledge of any agreement among the distributors to: (1) discriminate against any exhibitor; (2) maintain or raise minimum license fees; (3) select theaters for licensing; or (4) conduct sham bidding. Andrews’s lack of knowledge about any agreement to violate the Act does not preclude submission of the issue to the jury. Rarely can a formal agreement among alleged conspirators be established, and proof of its existence is not essential. Frey & Son v. Cudahy Packing Co., 256 U.S. 208, 41 S.Ct. 451, 65 L.Ed. 892 (1921); Unit ed States v. Paramount Pictures, Inc., 334 U.S. 131, 142, 68 S.Ct. 915, 922, 92 L.Ed. 1260 (1948). Andrews was cautioned by the district court not to testify about any conclusions he drew from the facts. A jury, however, is not similarly constrained. It is their function to draw reasonable inferences from the facts. Evidence of the course of dealing by the three exhibitors who operated the split and the distributors who participated with them is sufficient, if accepted by the jury, to establish the existence of a conspiracy to restrain and monopolize commerce in violation of the Act. Norfolk Monument Co., Inc. v. Woodlawn Memorial Gardens, Inc., 394 U.S. 700, 704, 89 S.Ct. 1391, 1393, 22 L.Ed.2d 658 (1969); American Tobacco Co. v. United States, 328 U.S. 781, 809-10, 66 S.Ct. 1125, 1138-39, 90 L.Ed. 1575 (1946). There is neither direct nor circumstantial evidence that Allied, American, Avco, and Buena Vista participated in the split. II The second element Wilder must prove is that the split directly injured its business. Admiral Theatre Corp. v. Douglas Theatre Co., 585 F.2d 877, 893 (8th Cir. 1978). We conclude that the evidence was sufficient to submit this issue to the jury. Most first-run films were licensed as split. Independent exhibitors were excluded from the split and denied access to many of these films. After the split started in 1971, Wilder had difficulty obtaining these films, its profits decreased, and eventually its theaters closed. The exhibitors and distributors attribute loss of Wilder’s theaters to Wilder’s mismanagement and its switch to x-rated films. Although this defense may justify a verdict against Wilder, it is insufficient to remove the case from the jury. III A fair measure of an exhibitor’s damages is the loss of its receipts attributable to an unlawful distribution system. Bigelow v. RKO Radio Pictures, 327 U.S. 251, 262-63, 66 S.Ct. 574, 578-79, 90 L.Ed. 652 (1946). Three theories have been recognized for calculating damages. Under the demand theory, the exhibitor may calculate its damages by showing the profit it would have made on pictures it sought, but which were denied by the split, less the profit it made on the pictures it actually ran. Secondly, the exhibitor may show that it would have been futile to seek pictures allocated by the split. Its damages can be measured by comparing the exhibitor’s receipts with the receipts of a comparable theater operated by a participant in the split. Finally, the exhibitor can establish its damage by showing the diminution in value of its business property. These theories are not mutually exclusive. The jury may not speculate, but, acting upon probabilities and inferences it may base its verdict on a just and reasonable estimate derived from relevant data. See Bigelow v. RKO Pictures, 327 U.S. 251, 257-66, 66 S.Ct. 574, 576-580, 90 L.Ed. 652 (1946); Admiral Theatre Corp. v. Douglas Theatre Co., 585 F.2d 877, 893-96 (8th Cir. 1978). Wilder proceeded on all three theories, but it relied primarily on futility. The district court erred in its analysis of this theory of damages. It held: “[T]o rely on the futility theory, plaintiff must show it made superior bids or offered superior terms for films which were rejected and licensed pursuant to inferior bids.” This ruling is more appropriate for the demand theory than the futility theory. An exhibitor can show futility in the manner outlined by the court, but we have found no authority that establishes this as the sole proof of futility. Here, Wilder introduced direct evidence that independents were denied access to first-run films by the split. It was this predicament that impelled Andrews to beg to be allowed to participate in the split even if only on restricted terms. Schoenfeld’s testimony that he could not get first-run films the way the system was operated is additional proof of futility. From all of this evidence, a jury could infer that Wilder’s bidding also would have been futile. Furthermore, when Wilder confronted several distributors demanding to know whether successful bidders were guaranteeing the large sums specified in solicitations to bid, he received no answers. The distributor’s silence does not, contrary to Wilder’s contention, prove the existence of sham bidding, but it is relevant in determining whether Wilder’s concern about the futility of bidding was 'justified, or whether it failed to bid, as the exhibitors and distributors contend, because of mismanagement. Having presented sufficient evidence of futility, Wilder should be allowed to compute his damages under this theory, and on remand the issue should be submitted to the jury. It is hardly necessary for us to observe that Wilder can present evidence under other theories, but there can be only one recovery. IV Because the case must be retried, we will address a number of other errors assigned by Wilder. For reasons adequately explained by the district court, we find no error in its refusal to toll the statute of limitations. The court, however, should have allowed discovery about the split in 1971 and 1972 even though these years preceded the limitation period. This evidence is relevant to the issues of conspiracy and futility. For the same reason, the court should admit evidence about Jaws which was proffered to establish the split’s involvement in sham bidding. The court excluded a stipulated list of films that were split because Wilder had not shown distributor participation in the split. Since we have concluded that evidence of this conduct was presented, the stipulation should be admitted. It is clearly relevant to the pervasiveness of the split and to provide underlying data for the application of the futility theory. The court did not err in limiting, under the demand theory, Wilder’s proof to the 23 films he listed in an interrogatory. This limitation of proof is not, however, appropriate with respect to the futility theory, which, as we have pointed out, does not require proof of demand or. the denial of any specific film. The court did not abuse its discretion by excluding Variety Magazine ratings of films Wilder played after the split unless it produced the ratings of films it played before the split. The court should not have excluded the testimony of Wilder’s experts. The first, president of the National Independent Theaters’ Exhibitors’ Association, had operated his own theaters and studied splits in at least a dozen marketing areas. He was prepared to testify that ABC, AMC, and General were among the top five circuit exhibitors in the country and to offer the opinion that a split could not operate successfully without the participation of distributors. The district court excluded his testimony, primarily because the witness was not familiar with “trade highway traffic patterns, shopping habits, or anything else” in the Norfolk-Virginia Beach market. There was no evidence that splits operated by large circuit exhibitors and national distributors would differ essentially because of geographic location. The witness qualified under Rule 702 of the Federal Rules of Evidence because his testimony would help the jury understand the intricacies of film distribution and the nature and effects of splits, subjects which are not common knowledge. As the advisory committee noted, “an intelligent evaluation of facts is often difficult or impossible without application of . . . specialized knowledge. The most common source of this knowledge is the expert witness ....” Rule 702, Advisory Committee’s Note. The witness’s testimony was relevant, Rule 402, and it satisfied the requirement of Rule 703. The second expert whose testimony was excluded was an economist who was called on the issue of damages. This witness admitted he was not an expert in local real estate values. No local realtor was called to furnish underlying facts for the expert’s calculations, and no alternative showing, as required by Rule 703, was made that the underlying data mentioned by the expert about local values was of a type reasonably relied on by other experts in the field. Accordingly, the district court did not err in excluding his testimony about diminution in the value of Wilder’s property. On the other hand, the expert’s testimony about the losses sustained by Wilder was admissible, especially in view of the evidence of futility. Contrary to the district court’s observations, proof of an exhibitor’s damages in an antitrust case is not so simple that a jury should be deprived of expert testimony. Calculation of damages is inherently difficult because it requires an estimation of gross receipts that were, in fact, never received. The asserted fallibility of the expert’s assumptions affected the weight of his testimony, not its admissibility. See Terrell v. Household Goods Carriers’ Bureau, 494 F.2d 16, 22-25 (5th Cir. 1974). We find no abuse of discretion in the court’s exclusion of testimony that was simply cumulative to proof supplied by stipulation. The court did not err in refusing to allow Wilder to contradict its answer to an interrogatory about house expenses on which the defendants had relied. Since the case must be retried, Wilder should be afforded an opportunity to clarify the difference between actual house expenses and “sliding scale” house expenses as used in the industry for bidding purposes and to supplement his answer by showing both figures. The element of unfair surprise to the defendants has been removed by the passage of time and events, and confusion over the house expenses should be dispelled. The judgments in favor of Allied, American, Avco, and Buena Vista are affirmed, and they shall recover their costs against Wilder. The judgments in favor of ABC, AMC, General, Columbia, Fox, Paramount, United Artists, Universal, and Warner are vacated, and the case is remanded for trial. Wilder, having substantially prevailed, shall recover his costs against these appellees. AFFIRMED IN PART, VACATED IN PART, AND REMANDED. . Day and date basis is an industry term indicating that a film is licensed to play in more than one theater in the market at the same time. Question: In what state or territory was the case first heard? 01. not 02. Alabama 03. Alaska 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. Florida 11. Georgia 12. Hawaii 13. Idaho 14. Illinois 15. Indiana 16. Iowa 17. Kansas 18. Kentucky 19. Louisiana 20. Maine 21. Maryland 22. Massachussets 23. Michigan 24. Minnesota 25. Mississippi 26. Missouri 27. Montana 28. Nebraska 29. Nevada 30. New 31. New 32. New 33. New 34. North 35. North 36. Ohio 37. Oklahoma 38. Oregon 39. Pennsylvania 40. Rhode 41. South 42. South 43. Tennessee 44. Texas 45. Utah 46. Vermont 47. Virginia 48. Washington 49. West 50. Wisconsin 51. Wyoming 52. Virgin 53. Puerto 54. District 55. Guam 56. not 57. Panama Answer:
songer_procedur	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. STATE OF WISCONSIN ex rel. Thomas MONSOOR, Petitioner-Appellant, v. John GAGNON, Respondent-Appellee. No. 73-1937. United States Court of Appeals, Seventh Circuit. Argued Feb. 21, 1974. Decided March 19, 1974. Patrick R. Doyle, La Crosse, Wis., for petitioner-appellant. Robert W. Warren, Atty. Gen., Robert D. Martinson, Asst. Atty. Gen., Madison, Wis., for respondent-appellee. Before CASTLE, Senior Circuit Judge, CAMPBELL, Senior District Judge, and JAMESON, Senior District Judge. Senior District Judge William J. Campbell of the Northern District of Illinois is sitting by designation. Senior District Judge AVilliam J. Jameson of the District of Montana is sitting by designation. JAMESON, Senior District Judge. Thomas Monsoor, an inmate of the Wisconsin Correctional Institution, has appealed from a dismissal of his petition for a writ of habeas corpus in which he claims that he is in custody in violation of the United States Constitution. Following a jury trial in the circuit court of La Crosse County, Wisconsin, Monsoor was convicted of selling marijuana, in violation of Wis.Stats. 161.-30(2) and 161.30(12) (d), and was sentenced to two years imprisonment. The facts are undisputed. The state’s case against Monsoor rested upon the testimony of Kim Kasabuske, an agent of the Wisconsin Department of Justice. Kasabuske testified that he worked as an undercover agent wearing a disguise and using an assumed name; that he tried to appear to be a member of the drug oriented community; that on March 16, 1971, while working with an informer named Bowman, he purchased a quantity of marijuana from Monsoor at Monsoor’s residence. Bowman did not testify at the trial. Over objection, Kasabuske testified that the purchase was initiated by a March 16 telephone call from Bowman to Monsoor. Kasabuske related Bowman’s side of the telephone conversation as follows: “I can’t recall it word for word, but he said, ‘Hi, Tom’ and made some small talk, ‘What’s up,’ something like that and then he asked, ‘Do you have anything?’ and at this point he turned to me and said, ‘He’s got some grass.’ I said, ‘Fine.’ He turned back to the telephone and he said, ‘We’d like some. Can I bring a friend over?’ and he said, ‘Well, we’ll be right over’ and hung up.” Monsoor’s defense was entrapment, based upon his claim that Bowman and Kasabuske had persuaded him to sell them marijuana by playing on his sympathetic instincts, that the marijuana which he sold actually belonged to someone else and that he never made any other sales, although persistently solicited by Bowman and Kasabuske to do so. Monsoor took the stand on his own behalf, and also called as witnesses five of his friends. The defense witnesses testified that on numerous occasions Monsoor had refused to sell marijuana to Bowman, although Bowman had persistently pleaded with him to do so. In addition, defense witness Robert D. Lyons, Jr., a former roommate of Monsoor, testified that he was the person who received the telephone call from Bowman on March 16, 1971. Lyons related the telephone conversation as follows: “[Bowman] just asked ‘Is Tommy home.’ I said no. He wanted to find a friend of Tom’s and he asked me if this friend had any grass. I said, T don’t know.’ He asked me for the phone number and I said, T don’t know the phone number.’ He asked me if I had any grass and I said no. He said, ‘Does Tommy have any grass,’ and I said, ‘Why ask me. If you want some ask him for yourself’ and that was the extent of it right there and I hung up.” On cross-examination the prosecutor questioned Lyons extensively about his previous criminal record. At one point he asked Lyons whether he had ever smoked marijuana at Monsoor’s residence or whether he knew anyone else who had done so. Lyons refused to answer these questions, citing the Fifth Amendment. The prosecutor then moved that Lyons’ entire testimony be stricken, on the ground that Lyons was refusing to be cross-examined. The trial court granted the motion over the objection of Monsoor’s counsel. Monsoor’s conviction was affirmed by the Supreme Court of Wisconsin, State v. Monsoor, 56 Wis.2d 689, 203 N.W.2d 20 (1973). The court held that “the trial court abused its discretion in striking the entire testimony of Robert Lyons”, but declined to reverse on the ground that the trial court’s error was not such as to have “probably affected the result of the trial”. Id. at 27. Two questions are presented on this appeal: (1) whether the striking of Lyons’ testimony denied Monsoor his right to have compulsory process for obtaining witnesses in violation of the Sixth and Fourteenth Amendments, and (2) if so, whether the constitutional error was harmless beyond a reasonable doubt. In Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967) the Court held that a state law which prevented a defendant from calling an accused accomplice as a witness was in violation of the Sixth Amendment. The district court recognized that Washington held that the constitutional right to compulsory process is applicable to the states under the Fourteenth Amendment, but reasoned that this right does not extend to the testimony of a witness and merely affords a defendant the right to secure his attendance at the trial. We do not believe the decision in Washington can be so limited. The Court said in part: “The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant’s version of the facts as well as the prosecution’s to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution’s witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law.” 388 U.S. at 19. Moreover, in the concluding language of the opinion the Court observed that: “The Framers of the Constitution did not intend to commit the futile act of giving to a defendant the right to secure the attendance of witnesses whose testimony he had no right to use.” Id. at 23. It is true, as appellee argues, that a state may adopt limitations on defense evidence in criminal trials; but consistent with the constitutional guarantees of compulsory process and a fair trial, these limitations may not be arbitrary. See Myers v. Frye, 401 F.2d 18, 21 (7 Cir. 1968). Under Washington a defendant may not, consistent with the Sixth and Fourteenth Amendments, be arbitrarily deprived of competent testimony which is relevant and material to the defense. We hold that it is constitutionally impermissible to strike relevant and competent direct examination testimony where a defense witness on cross-examination invokes the privilege against self incrimination with respect to collateral questions which relate only to his credibility and do not concern the subject matter of his direct examination. As noted, supra, the Supreme Court of Wisconsin declined to reverse Monsoor’s conviction on the ground that the error in striking Lyons’ testimony would not have “probably affected the result of the trial”. 203 N.W.2d at 27. Before a federal constitutional error, however, can be held harmless, “the court must be able to declare a belief that it was harmless beyond a reasonable doubt” Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). See also United States v. Scott, 494 F.2d 298 decided by this court on February 26, 1974. The district court did not consider the question of harmless error, since it found no constitutional violation. However, in holding that appellant had been given a fair trial the district court stated that “Lyons’s testimony was, at best, collateral to the issue of the case which was whether petitioner did or did not sell marijuana to a state law enforcement officer.” The sale was admitted by Monsoor. The defense was entrapment, and the effect of striking Lyons’ testimony must be considered with respect to the entrapment defense. Entrapment occurs “when the criminal design originates with the officials of the government, and they implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute”. Sorrells v. United States, 287 U.S. 435, 442, 53 S.Ct. 210, 212, 77 L.Ed. 413 (1932). Appellant contends that Lyons’ testimony was relevant to his entrapment defense since it corroborated his testimony that (1) there was persistent solicitation by Bowman for the sale of marijuana; and (2) he received no telephone call from Bowman on March 16, the date of the marijuana sale to Kasabuske and Bowman. In addition to Lyons, four other witnesses corroborated Monsoor’s testimony that on numerous occasions he had refused to sell marijuana to Bowman, although Bowman had persistently begged him to do so. On the issue of “persistent solicitation” Lyons’ testimony was cumulative, and we are satisfied that the striking of this portion of his testimony was harmless beyond a reasonable doubt. The informer, Bowman, did not testify. Kasabuske testified regarding Bowman’s alleged conversation with Monsoor, stating that Bowman told him that Monsoor had said he had some “grass” and had agreed that Bowman could “bring a friend over”, presumably to purchase the marijuana. This testimony demonstrated a predisposed willingness on the part of Monsoor to commit a crime — a fact fatal to the defense of entrapment. Monsoor’s rebuttal was that he did not receive a phone call from Bowman. Lyons corroborated this, testifying that he was the one who talked with Bowman, and related the conversation. This testimony was then stricken. We cannot say that the striking of this testimony was harmless beyond a reasonable doubt and “did not contribute” to Monsoor’s conviction. Reversed and remanded for further proceedings consistent with this opinion. . The parties filed a stipulation of facts and a copy of the transcript of the state court proceedings. The district court made findings of fact essentially as herein set forth. . Monsoor denied having received any telephone call from Bowman on March 16. . The court followed United States v. Cardillo, 316 F.2d 606, 611 (2 Cir. 1963), cert. denied, 375 U.S. 822, 84 S.Ct. 60, 11 L.Ed.2d 55 (1963), and Coil v. United States, 343 F.2d 573, 579-580 (8 Cir. 1965), cert. denied, 382 U.S. 821, 86 S.Ct. 48, 15 L.Ed.24 67 (1965), which hold that direct examination testimony should not be stricken where the privilege against self incrimination is invoked upon cross-examination with respect to collateral questions which relate solely to the credibility of the witness and are otherwise immaterial to the subject matter of the direct examination testimony. The cases present an exception to the general rule that the striking of direct testimony is permissible where a witness refuses to be cross-examined. See McCormick, Evidence § 19 (2d Ed. 1972). . The court stated : “I am not persuaded that the parameters of the right to compulsory process extend to the testimony offered by the witness. Once the witness’s attendance lias been secured, and he has taken the stand, the accused has been afforded his right to compulsory process. If the court subsequently strikes all or a portion of the witness’s testimony, the court’s action must be evaluated as any other evidentiary ruling made during the course of trial as to its effect upon the accused’s due process right to a fair trial.” . See also Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 1049, 35 L.Ed.2d 297 (1973) where the Court noted that “Few rights are more fundamental than that of an accused to present witnesses in his own defense.” . It is well settled that “when a state procedural rule comes into conflict with a fundamental constitutional right it is clear that tlie state rule must yield”. Braswell v. Wainwright, 463 F.2d 1148, 1154 (5 Cir. 1972). . The Court stated : “We hold that the petitioner in this case was denied his right to have compulsory process for obtaining witnesses in his favor because the State arbitrarily denied him the right to put on the stand a witness who was physically and mentally capable of testifying to events that he had personally observed, and whose testimony would have been relevant and material to the defense.” 388 U.S. at 23. . The Supreme Court of Wisconsin similarly concluded that “Whether Bowman’s phone conversation * * * was actually with Monsoor or Lyons is of no consequence. It did not have anything to do with the facts surrounding the actual sale.” 203 N.W.2d at 27. . As was stated in Braswell, supra at 1155-1156: "[The defendant 1 liad a right to at least present the testimony of his sole corroborating witness to the jury. That the jury might still have returned a guilty verdict is beside the point; judgment of the credibility of witnesses is for the trier of fact.” . Chapman v. California, supra at 26. 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_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. V.S.H. REALTY, INC., Plaintiff, Appellant, v. TEXACO, INC., Defendant, Appellee. No. 84-1531. United States Court of Appeals, First Circuit. Argued Nov. 7, 1984. Decided March 15, 1985. Rehearing En Banc Denied April 29, 1985. Allan van Gestel, Boston, Mass., with whom Allan J. Sullivan and Goodwin, Procter & Hoar, Boston, Mass., were on brief for plaintiff, appellant. Robert M. Gault, Boston, Mass., with whom Bruce F. Metge, Washington, D.C., and Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., Boston, Mass., were on brief for defendant, appellee. Before COFFIN and BREYER, Circuit Judges, and WYZANSKI, Senior District Judge. Of the District of Massachusetts, sitting by designation. COFFIN, Circuit Judge. Appellant V.S.H. Realty, Inc. (V.S.H.) claims that appellee Texaco, Inc. (Texaco) must return a $280,000 down payment V.S.H. paid on a piece of real estate in Chelsea, Massachusetts. V.S.H. claims that Texaco breached the sales agreement, fraudulently induced it into agreeing to the purchase, and violated a Massachusetts statute prohibiting unfair and deceptive acts in business dealings. The district court dismissed the case under Fed.R. Civ.P. 12(b)(6) for failure to state a claim, and denied V.S.H.’s subsequent motion to vacate judgment and to permit an amendment of the complaint. We think the court was correct in dismissing the breach of contract claim but erring in dismissing the common law and statutory deception counts. I. Factual Background On August 11, 1983, V.S.H. offered to purchase from Texaco a used bulk storage petroleum facility for $2.8 million. Texaco accepted the offer on September 7, and V.S.H. made a deposit of $280,000 to be applied against the purchase price. The offer to purchase required Texaco to convey the property “free and clear of all liens, encumbrances, tenancies and restrictions”, except for those set forth in the offer. Attached to the offer to purchase was an acknowledgement signed by Texaco stating that, to the best of the company’s knowledge and belief, it had not received “any notice, demand, or communication from any local county, state or federal department or agency regarding modifications or improvements to the facility or any part thereof.” The offer also included a disclosure by Texaco that fuel oils had “migrated under [Texaco’s] garage building across Marginal Street from the terminal [and that] the fuel oil underground as a result of heavy rains or high tides, seeps into the boiler room of the garage building.” V.S.H., for its part, expressly stated in the offer that it had inspected the property, and accepted it “as is” without any representation on the part of Texaco as to its condition. Problems arose when V.S.H. representatives visited the property in mid-October 1983, approximately a month after Texaco accepted the offer to purchase, and observed oil seeping from the ground at the western end of the property. During a subsequent visit, V.S.H. representatives discovered another oil seepage at the eastern end of the property. V.S.H. then notified Texaco that it would not go through with the purchase unless Texaco corrected the oil problem, provided V.S.H. with full indemnification, or reduced the purchase price. When Texaco refused, V.S.H. demanded return of its down payment. Texaco again refused, and V.S.H. filed this lawsuit on January 10, 1984. In its three-count complaint, V.S.H. alleges first that Texaco violated Mass.Gen. Laws Ann. ch. 93A, § 2, which prohibits unfair and deceptive acts and practices, basing that assertion largely on Texaco’s failure to disclose the seeping oil, and its failure to disclose an investigation of the property by the U.S. Coast Guard. V.S. H.’s second count claims relief for breach of contract, based on Texaco’s alleged inability to convey the property at the specified time free of all liens, encumbrances and restrictions. V.S.H.’s contract theory is that the penalties associated with the oil seepage problem constitute an encumbrance on the property. Finally, V.S.H. charges Texaco with common law misrepresentation and deceit for failing to disclose the oil seepage problems and Coast Guard investigation “in the face of repeated inquiries by V.S.H. about the subject.” At the conclusion of a hearing on Texaco’s motion to dismiss all three counts, the district court announced without explanation that the contract claims should be dismissed. It also dismissed the common law fraud count at that time, stating that V.S.H. had failed to allege the required affirmative misrepresentation or implicit misrepresentation by partial and ambiguous statements. It deferred decision on the chapter 93A count, and in a latter written decision dismissed that count on two grounds: an Attorney General’s regulation upon which V.S.H. relied was not. intended to apply in a transaction between two sophisticated business entities, when one party agrees to take the property “as is”; and Texaco had no duty to disclose the oil seep-ages to V.S.H., and so its failure to do so could not have violated chapter 93A. Our approach to reviewing a dismissal of a complaint at such a preliminary stage of proceedings is necessarily informed by the teaching that we must consider “not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims”, Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). With that view of our task in mind, we disagree with the action taken by the district court with respect to the counts based on chapter 93A and common law misrepresentation. V.S. H. ’s original complaint may well have been vague in some allegations, but we believe that it presented “enough information to ‘outline the elements of the pleaders’ claim’ ”, Kadar Corp. v. Milbury, 549 F.2d 230, 233 (1st Cir.1977) (quoting Wright & Miller, Federal Practice and Procedure § 1357). V.S.H. is therefore “entitled to be heard more fully than is possible on a motion to dismiss a complaint.” Scheuer, id. 416 U.S. at 250, 94 S.Ct. at 1693. We affirm the dismissal of the count based on breach of contract. We shall first discuss the counts based on common law misrepresentation and chapter 93A, ending with the count based on breach of contract. II. Sufficiency of the Complaint A. Common Law Misrepresentation V.S.H. bases its count for common law misrepresentation on Texaco’s partial disclosure of oil seepages, the deliberate concealment of other leaks and the failure to acknowledge the U.S. Coast Guard investigation of the spills. The failure to disclose is actionable, V.S.H. argues, because it repeatedly asked Texaco about oil leaks on the premises, yet Texaco knowingly made only partial disclosure of them. V.S.H. alleges that Texaco’s fragmentary disclosures induced it to enter into the contract, and caused it damage in the form of the $280,000 down payment which it otherwise would not have made. The district court dismissed the misrepresentation count because “[tjhere was no fiduciary duty here. The parties dealt at arm’s length with each other, and there was no peculiar duty to speak. There were no material misrepresentations on which the buyers relied.” What we face here, however, are allegations of partial or incomplete statements that may by their incompleteness be actionable. Restatement of Torts (Second), §§ 529, 551(2)(b). There is much case law in Massachusetts supporting the proposition that a party who discloses partial information that may be misleading has a duty to reveal all the material facts he knows to avoid deceiving the other party. “Although there may be ‘no duty imposed upon one party to a transaction to speak for the information of the other ... if he does speak with reference to a given point of information, voluntarily or at the other’s request, he is bound to speak honestly and to divulge all the material facts bearing upon the point that lie within his knowledge. Fragmentary information may be as misleading ... as active misrepresentation, and half-truths may be as actionable as whole lies____’ See Harper & James, Torts, § 7.14. See also Restatement: Torts, § 529; Williston, Contracts (2d ed.) §§ 1497-1499.” Kannavos v. Annino, 356 Mass. 42, 48, 247 N.E.2d 708 (1969). See also Maxwell v. Ratcliffe, 356 Mass. 560, 562-63, 254 N.E.2d 250 (1969) (“Because the question of the dryness of the cellar had been raised expressly, there was special obligation on the brokers to avoid half truths and to make disclosure at least of any facts known to them or with respect to which they had been put on notice.”); Nei v. Boston Survey Consultants, Inc., 388 Mass. 320, 322, 446 N.E.2d 681 (1983) (“[Tjhere is no suggestion that the defendants made a partial disclosure or stated a half truth which may be tantamount, under certain conditions, to a falsehood if there is no further expatiation.”); Nei v. Burley, 388 Mass. 307, 446 N.E.2d 674 (1983); Catalina Yachts v. Old Colony Bank & Trust Co., 497 F.Supp. 1227 (D.Mass.1980). This duty to avoid misrepresentations is so strong that the deceived party is not charged with failing to discover the truth. Snyder v. Sperry & Hutchinson Co., 368 Mass. 433, 446, 333 N.E.2d 421 (1975) (“[Ijf the seller’s representations are such as to induce the buyer not to undertake an independent examination of the pertinent facts, lulling him into placing confidence in the seller’s assurances, his failure to ascertain the truth through investigation does not preclude recovery.”). We believe the allegations in V.S. H.’s complaint regarding partial and ambiguous statements satisfy the requirements for stating a claim of misrepresentation. V.S.H. has alleged that it made “repeated inquiries” about oil leaks on the property, to which Texaco failed to fully respond. In addition, Texaco stated in an acknowledgement attached to the contract that it had “not received any notice, demand, or communication from any local county, state or federal department or agency regarding modifications or improvements to the facility or any part thereof.” Even if it is technically correct that Texaco had received no governmental communication specifically related to modifications or improvements to the facility, its failure to disclose the Coast Guard investigation of the property is arguably an actionable misrepresentation. The district court also recognized the ambiguity in Texaco’s assertion, noting that “the question whether that [the Coast Guard investigation] is a notice regarding modifications or improvements of the facility is a matter of argument.” Finally, and significantly, we note that Texaco affirmatively stated (with some implication of exclusivity) the existence of one leak. The combination of Texaco’s affirmative disclosure of one leak, its failure to disclose the others, and its failure to acknowledge alleged Coast Guard investigation of the seepages, at a minimum, makes this case a stronger one of misrepresentation than Nei v. Burley, 388 Mass. 307, 310, 446 N.E.2d 674, where the Supreme Judicial Court held that the defendants “did not convey half truths nor did they make partial disclosure of the kind which so often requires a full acknowledgement to avoid deception.” It is our conclusion, therefore, that the district court erred in dismissing the claim for common law misrepresentation. B. Breach of Mass.Gen.Laws Ann. ch. 93A Mass.Gen.Laws Ann. ch. 93A generally prohibits unfair or deceptive acts or practices in business. When it was first enacted in 1967, its primary goal was protection of consumers, Manning v. Zuckerman, 388 Mass. 8, 12, 444 N.E.2d 1262 (1983), but the addition of section 11 in 1972 extended chapter 93A’s coverage to business persons involved in transactions with other business persons. Id. Chapter 93A has been interpreted to be “ ‘a statute of broad impact which creates new substantive rights and provides- new procedural devices for the enforcement of those rights’ ”, id., (quoting Slaney v. Westwood Auto, Inc., 366 Mass. 688, 693, 322 N.E.2d 768 (1975)). “This act is one of several legislative attempts in recent years to regulate business activities with the view to providing proper disclosure of information ... ”, Commonwealth v. DeCotis, 366 Mass. 234, 316 N.E.2d 748 (1974). Chapter 93A § 2 provides no definition of an unfair or deceptive act or practice, and instead directs our attention to interpretations of unfair acts and practices under the Federal Trade Commission Act as construed by the Commission and the federal courts. Commonwealth v. DeCotis, 366 Mass, at 241, 316 N.E.2d 748; PMP Associates, Inc. v. Globe Newspaper Co., 366 Mass. 593, 595, 321 N.E.2d 915 (1975). The section also empowers the Attorney General to make rules and regulations interpreting § 2(a). See § 2(c). V.S.H. relies heavily on one such regulation to support its allegation that Texaco violated chapter 93A. The Attorney General’s regulation in Mass.Admin.Code tit. 20, § 3.16(2) states that an act or practice violates chapter 93A if: “Any person or other legal entity subject to this act fails to disclose to a buyer or prospective buyer any fact, the disclosure of which may have influenced the buyer or prospective buyer not to enter into the transaction.” V.S.H.’s complaint appears to state a claim under this regulation and, in fact, mirrors its language. V.S.H. alleged in paragraph 19 of its complaint that Texaco’s failure to disclose the oil leaks that V.S.H. representatives discovered in October 1983 “are facts the disclosure of which may have influenced V.S.H. not to enter into the transaction and agree to pay the sum of $2,800,000 for the premises or to pay a deposit in connection therewith of $280,-000.” The district court found an inadequacy in the complaint by concluding that the disclosure language of regulation § 3.16 is incomplete. The court decided that “unless a defendant has a duty to speak, his nondisclosure of a defect does not constitute a violation of chapter 93A even if the information may have influenced the buyer not to enter into the contract.” The court then went on to hold that Texaco did not have a duty to disclose the oil leaks to V.S.H. We disagree for two reasons. First, even if we were to accept the court’s premise that nondisclosure is a violation of chapter 93A only when there is a duty to disclose, we would find that V.S.H. has met its burden of establishing a duty by alleging that Texaco made partial or incomplete statements regarding the oil leaks on the property. See Restatement of Torts (Second) §§ 551, 529. See supra p. 415. We are not convinced, however, that V.S.H. needs to allege more than a failure to disclose a material fact to state a cause of action under chapter 93A. In Slaney v. Westwood Auto, Inc., 366 Mass. 688, 322 N.E.2d 768 (1975), the Massachusetts Supreme Judicial Court examined chapter 93A at length, and emphasized the distinction between that statutory cause of action and the common law action for fraud and deceit, which would require a duty to disclose. It pointed out that “the definition of an actionable ‘unfair or deceptive act or practice’ goes far beyond the scope of the common law action for fraud and deceit____ [A] § 9 [or § 11] claim for relief ... is not subject to the traditional limitations of preexisting causes of action such as tort for fraud and deceit.” Id., at 703-04, 322 N.E.2d 768. Massachusetts case law suggests that one difference between a fraud claim and the more liberal 93A is allowance of a cause of action even in the absence of a duty to disclose. See Nei v. Boston Survey Consultants, Inc., 388 Mass. 320, 323-24, 446 N.E.2d 681 (1983), where the court appeared ready to find chapter 93A liability even though it found no duty to speak. See also Nei v. Burley, 388 Mass. 307, 316, 446 N.E.2d 674 (1983). The district court, however, had another reason for dismissing the claim. It concluded that chapter 93A liability was precluded because V.S.H. is a sophisticated buyer who had the opportunity to inspect the property and who agreed to purchase the property “as is”. The court noted that “this type of contractual arrangement is expressly permitted under the Uniform Commercial Code, M.G.L. c. 106, § 2-316, in non-consumer sales of goods”, and it thus “would be anomalous to hold that ‘as is’ contracts are permissible in sales of goods cases but not in commercial sales of land cases.” It concluded: “Absent allegations of the non-detectability of defects on inspection or their fraudulent concealment by a defendant, a plaintiff who has inspected the premises to be purchased and has agreed to purchase the land ‘as is’ cannot rely on § 3.16(2) to establish a defendant’s viola: tion of chapter 93A.” We believe the district court’s view of the law regarding “as is” clauses is incorrect. Although the Uniform Commercial Code does expressly permit disclaimers in the sale of goods between merchants, § 2-316 refers specifically to disclaimers of implied warranties, suggesting to us that it was intended only to permit a seller to limit or modify the contractual bases of liability which the Code would otherwise impose on the transaction. The section does not appear to preclude claims based on fraud or other deceptive conduct. Section 1-102(3) of Mass.Gen.Laws ch. 106 lends support to this interpretation of § 2-316. It states: “The effect of provisions of this chapter may be varied by agreement, except as otherwise provided in this chapter and except that the obligations of good faith, diligence, reasonableness and care prescribed by this chapter may not be disclaimed by agreement ...” (emphasis added). We find further support for our view implicit in Marcil v. John Deere Industrial Equipment Co., 9 Mass.App. 625, 403 N.E.2d 430, app. denied, 380 Mass. 940 (1980). The court in that case upheld a disclaimer of all express and implied warranties other than the warranty specified on the purchase order, finding that there was no indication that the disclaimer was unconscionable. The court went on to note that the vaguely worded allegations of the plaintiff’s complaint may have stated claims for deceit or violation of chapter 93A, but the plaintiff failed to characterize them as such to the trial judge, and so he was not allowed to do so for the first time on appeal. Our reading of Marcil is that even if a disclaimer on its face is not unconscionable, it is subject to challenge if a plaintiff, as in this case, properly raises allegations of deceit and violation of chapter 93A. Our conclusion here does not mean that an “as is” clause would never be given effect in real estate transactions where the buyer alleged the seller’s failure to disclose a material defect in the property. The Supreme Judicial Court has’ held that § 3.16(2) imposes liability only when the defendant had knowledge, or should have known of the defect, and where a direct relationship existed between the parties. See Lawton v. Dracousis, 14 Mass.App. 164, 171, 437 N.E.2d 543, 547, app. denied, 387 Mass. 1103, 440 N.E.2d 1177 (1982) (failure to disclose building code violations not actionable where seller did not know or have reason to know of violations); Nei v. Boston Survey Consultants, Inc., 388 Mass. 320, 324, 446 N.E.2d 681 (1983). It is possible that § 3.16(2) will be found inapplicable in other situations involving “as is” clauses. Even more persuasive than this inferential reasoning based on the Uniform Commercial Code is the fact that Massachusetts case law unequivocally rejects assertion of an “as is” clause as an automatic defense against allegations of fraud: “The same public policy that in general sanctions the avoidance of a promise obtained by deceit strikes down all attempts to circumvent the policy by means of contractual devices. In the realm of fact it is entirely possible for a party knowingly to agree that no representations have been made to him, while at the same time believing and relying upon representations which in fact have been made and in fact are false but for which he would not have made the agreement.” Bates v. Southgate, 308 Mass. 170, 182, 31 N.E.2d 551 (1941). See also Schell v. Ford Motor Company, 270 F.2d 384, 386 (1st Cir.1959) (“under the law of Massachusetts ... in the absence of fraud a person may make a valid contract exempting himself from any liability to another which he may in the future incur as a result of his negligence____) (emphasis added). Texaco acknowledges that a party may not contract out of liability for fraud. It argues instead that the specific language of the disclaimer in this case precludes recovery by V.S.H., (i.e., that V.S.H. did not rely on any representations); Texaco relies heavily, however, on a case from another jurisdiction to support this proposition, Landale Enterprises, Inc. v. Berry, 676 F.2d 506 (11th Cir.1982). Bates v. Southgate, 308 Mass. 170, 31 N.E.2d 551 (1941), is the controlling precedent on this issue in Massachusetts, not Landale. Texaco also implies that the disclaimer must be given full effect because V.S.H. is a “sophisticated” purchaser, experienced in real estate transactions. Although we agree that V.S.H.’s experience in the real estate business, along with the presence of an “as is” clause, is relevant to the ultimate disposition of the chapter 93A claim, we do not find that either factor makes V.S.H.’s claim insufficient as a matter of law. Sophistication of the parties is not mentioned in chapter 93A and the amendment of chapter 93A to cover business entities did not limit the statute’s protection to small, unsophisticated businesses. It may be that the Massachusetts Supreme Judicial Court ultimately should decide the question of whether an “as is” clause ever should be ignored in a transaction between two sophisticated businesses and, thus, whether the existence of one should preclude a chapter 93A cause of action. We do not believe, however, that it would, or could, do so without development of a factual record. For that reason, and the absence of any contrary precedent in Massachusetts law, we conclude that the district court erred in dismissing the chapter 93A claim. C. Breach of Contract V.S.H. argues that Texaco breached the contract between them when it refused to return V.S.H.’s $280,000 down payment even though Texaco could not convey the Chelsea property free of all encumbrances, restrictions and liens. V.S.H.’s argument is that the oil seepages and barrier facility constructed to control the seepages subject the property and its owners to various penalties, which amount to encumbrances on the title. V.S.H. cites, among other statutes, the Massachusetts Oil and Hazardous Material Release Prevention Act, Mass. Gen.Laws Ann. ch. 21E. Section 5 of that statute imposes liability on the owner of a site at which there is or has been a release or threat of release of oil, and section 13 provides that the cost of clean-up may constitute a lien on the property of all persons liable under the statute. V.S.H. also points to Mass.Gen.Laws Ann. ch. 131, § 40, which prohibits the filling, dredging or altering of any bank bordering on any creek of any land subject to tidal action, coastal storm flowage or flooding, without permission from the local conservation commission. V.S.H. alleges in its complaint that the bank bordering on Chelsea Creek, and the land surrounding it, are subject to those environmental events, and that Texaco’s construction of a dam or barrier facility on its property following the Coast Guard investigation is a violation of the statute. The statute provides that anyone who acquires the property is responsible for restoring it to its prior condition, and that fines, imprisonment or injunctive relief may be obtained by the Attorney General, local officials or any group of ten Massachusetts residents. Texaco contends that V.S.H.’s citation to these Massachusetts statutes, and equivalent federal statutes, is insufficient because V.S.H. has not alleged enough facts to establish that conditions presently exist such that the property would be deemed encumbered by a statutory violation. As a general proposition, the “mere possibility” that someone might subject the purchaser to litigation is not enough to require a return of a deposit, Orenberg v. Johnston, 269 Mass. 312, 316, 168 N.E. 794 (1929). Sufficient facts must be alleged “showing that the property was or might be subject to adverse claims such as might reasonably be expected to expose the purchaser to controversy in order to maintain his title”, Hill v. Levine, 252 Mass. 513, 517, 147 N.E. 837 (1925) (emphasis added). On the other hand, V.S.H. cites several cases more hospitable to recognizing the existence of an encumbrance. In Silverblatt v. Livadas, 340 Mass. 474, 164 N.E.2d 875 (1960), it was held that a letter from a building inspector to a seller of property that a fire escape would have to be replaced by either the owner or the city (in which case a lien would be imposed) would not be an encumbrance made by the grant- or — even if, arguably, this kind of inchoate lien could constitute an encumbrance. In Sawl v. Kwiatkowski, 349 Mass. 712, 212 N.E.2d 228 (1965), the court held that a prospective buyer was not entitled to specific performance of a real estate contract because of a possible inheritance tax lien on the property. The master had found that there was a “ ‘reasonable probability’ ” that an inheritance tax was due and that “ ‘the probability of ... a lien ... [was] sufficiently great to render the tile non-marketable in the absence of ... evidence that [the locus was] free of such lien....’” Id. at 713, 212 N.E.2d 228. In Mahoney v. Nollman, 309 Mass. 522, 35 N.E.2d 265 (1941), the court ruled that a buyer was entitled to a return of its deposit because of a possible lien on the land in favor of a legatee who had not been satisfied by the testatrix' estate. Even though no specific claim had been made and the Attorney General was the only one who could enforce the lien, the court held that the title to the property was sufficiently doubtful: “The defendant is entitled to assume that [the Attorney General] will perform his duties in that respect in the matter of the estate of the testatrix. So far as appears, resort may be necessary to the land in question for satisfaction of these legacies for a public charity.” Id. at 527, 35 N.E.2d 265. We resolve this issue by affirming the district court. As far as any “encumbrance” attributable to chapter 21E, proscribing the release of oil and enabling the Commonwealth to secure its recovery of any clean-up costs by means of a lien, we note several missing links in the chain of imminency that characterized both Sawl and Mahoney. In the first place, nearly three months had elapsed between V.S.H.’s discovery of additional seepage and the filing of its complaint. Thus, the absence of any allegations concerning complaints or clean-up orders renders quite speculative their likely existence. In the second place, the appropriateness of any clean-up order was subject both to an adjudicatory administrative hearing and judicial review. Chapter 21E § 10. As for any encumbrance attributable to chapter 130 § 40, we note the nearly three month period mentioned above; the uncertainty of an encumbrance arising from the precondition of suit in equity being brought and won; and, finally, the fact that neither in the original nor amended complaint was there an allegation that Texaco, in responding to the Coast Guard investigation and constructing a dam or barrier on its bank bordering Chelsea Creek, did so without giving notice to and receiving permission from the appropriate authorities. In short, no violation of § 40 was alleged. We therefore cannot fault the district court for dismissing this count. For the foregoing reasons, we affirm the dismissal of the contract count, and reverse the judgment of the district court on the misrepresentation and chapter 93A counts, remanding for further proceedings consistent with this opinion. . When we consider the amended complaint, see appendix, rejected by the court, our conclusion takes on added strength. The new averments, especially paragraphs 10 and 13, seem to state a classical misrepresentation claim. Indeed, we cannot escape the impression that had the court directly focused on them, it might well have allowed the amendments. For it had earlier asked counsel for V.S.H. if he intended to amend, had learned that counsel would ask leave to amend if dismissal were contemplated, and had, on dismissing two counts, specifically noted that V.S.H. could file an amendment within a reasonable period of time. Counsel said he would await a formal ruling on all counts. Subsequently, as if the matter had fallen between stools, the court dismissed the entire complaint and, eight days later, V.S.H. served its motion on Texaco. Under these circumstances the short delay and absence of any likelihood of prejudice would have clearly indicated granting the motion for leave to amend under Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962) and Austin v. Unarco Industries, Inc., 705 F.2d 1 (1st Cir.1983) had the new averments received a focused attention. . This paragraph followed V.S.H.’s acknowledgement that various regulations may require it to spend substantial sums of money for improvements to the facility, and that it was willing to assume responsibility for compliance with all applicable regulations. In its amended complaint, V.S.H. alleged that it insisted on the disclaimer from Texaco because it knew that current landowners can be held liable for oil leaks, spills and related problems even if the actual environmental damage was caused by a prior owner. V.S.H.'s allegation implies that the Texaco disclaimer was its form of protection when it agreed to accept responsibility, since the disclaimer suggested that Texaco knew of no outstanding problems with the property. It may be that there was no significant problems. V.S.H. should be allowed to proceed on the basis of its allegations, however, to discover the extent, if any, of Texaco's culpability. . Chapter 93A reads, in relevant part, as follows: "§ 2. Unfair practices; legislative intent; rules and regulations (a) Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful. "§ 11. Any person who engages in the conduct of any trade or commerce and who suffers any loss of money or property, real or personal, as a result of the use or employment by another person who engages in any trade or commerce of an unfair method of competition or an unfair or deceptive act or practice declared unlawful by section two or by any rule or regulation issued under paragraph (c) of section two may ... bring an action____” . Texaco argues that § 3.16 actually condemns only failures to disclose that are unfair or deceptive as described by Massachusetts standards, Purity Supreme, Inc. v. Attorney General, 380 Mass. 762, 775, 407 N.E.2d 297 (1980), and that this is not such a case. While we agree with that general proposition, it is also true that "the existence of unfair acts and practices must be determined from the circumstances of each case”, Commonwealth v. DeCotis, 366 Mass. at 242, 316 N.E.2d 748; see also Mechanics National Bank of Worcester v. Killeen, 377 Mass. 100, 384 N.E.2d 1231 (1979); Schubach v. Household Finance Corp., 375 Mass. 133, 376 N.E.2d 140 (1978); Noyes v. Quincy Mutual Fire Insurance Co., 7 Mass.App. 723, 389 N.E.2d 1046 (1979). . The court declined to find the statutory liability only because the defendants played a minor role in the purchase of the property. . It is worth noting that in Landale the disclaimer was drafted by the party seeking to invalidate the sales contract. Id. 676 F.2d at 508. Texaco drafted the clause in the instant contract. . We note that the district court may wish to certify this question at an appropriate point in the proceedings. . We note, but do not rely on, another section of the Attorney General regulations, § 3.05(1) (Mass.Admin.Code tit. 20), which V.S.H. pointed out in its amended complaint: "No claim or representation shall be made by any means concerning a product which directly, or by implication, or by failure to adequately disclose additional relevant information, has the capacity or tendency or effect of deceiving buyers or prospective buyers in any material respect." Although V.S.H. did not specifically cite to § 3.05 in its original complaint, the amended complaint links that section (as well as § 3.16) with Texaco’s alleged failure to disclose the oil leaks and Coast Guard investigation, and the original complaint contains all of the factual allegations necessary for that connection. . The Federal Clean Water Act, 33 U.S.C. § 1321 and the Federal Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9601 et seq. Question: What is the most frequently cited federal rule of civil procedure in the headnotes to this case? Answer with a number. Answer:
songer_appel1_7_2	B	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the gender of this litigant. Use names to classify the party's sex only if there is little ambiguity (e.g., the sex of "Chris" should be coded as "not ascertained"). Pablo CARREON, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. No. 77-2143. United States Court of Appeals, Seventh Circuit. Argued April 27, 1978. Decided June 14, 1978. Allan A. Ackerman, Chicago, 111., for petitioner-appellant. Alfred C. Moran, Asst. U. S. Atty., Chicago, 111., for respondent-appellee. Before CUMMINGS and TONE, Circuit Judges, and MILLER, Associate Judge. The Honorable Jack R. Miller, Associate Judge of the United States Court of Customs and Patent Appeals, sitting by designation. TONE, Circuit Judge. This petition under 28 U.S.C. § 2255 raises the question of whether petitioner’s plea of guilty was voluntary in the face of the court’s failure to inquire in detail concerning the factual basis for the plea and thus to discover and explain to petitioner a potential entrapment defense. The District Court denied relief. We reverse. In 1976 a nine-count indictment was returned against petitioner for distribution of heroin in violation of 21 U.S.C. § 841(a)(1). Represented by retained counsel, petitioner initially pleaded not guilty and then moved to change his plea to Counts VII and VIII of the indictment pursuant to a plea agreement calling for dismissal of the other counts upon acceptance of the guilty plea to the two counts. The Guilty Plea The motion for change of plea was initially presented to a judge other than the one to whose calendar the case was assigned. Because petitioner could not speak English, the communications between him and the judge proceeded through an interpreter. After hearing petitioner’s story, the judge concluded that there was “at least a factual question as to whether the defendant is not guilty by reason of entrapment,” declined to accept the plea, and continued the matter for hearing before the judge to whose calendar the case was assigned. The following day petitioner and his counsel, with an interpreter, appeared before the latter judge in a renewed effort to submit his guilty plea. At the hearing on that day nothing was said about entrapment. The record is not clear as to how fully the judge was informed of what had occurred the previous day, but he apparently knew that the plea had been tendered and refused. Petitioner’s counsel stated, I spent extensive hours with this man [petitioner], explained to him the various defenses that may be raised in this case, and the possibility that those defenses are non-existent, the possibility of other charges being brought before this court; and Mr. Carreon has been well aware of that for some time . . .. He intended to plead guilty [the previous day] . and as long as 20 minutes ago — the last time I spoke to him — it was still his desire, Judge. At the ensuing plea hearing the judge read Counts VII and VIII and asked petitioner whether he had committed “those crimes” to which the response was “Yes, sir.” Nothing was said about the underlying facts. The § 2255 Petition In his petition under § 2255, petitioner alleged facts from which a trier of fact could conceivably have found entrapment, and further alleged that when he appeared before the second judge he did not then understand that if in fact he had been entrapped that he could plead not guilty and have a trial on the issue of whether Maria Hernandez [who allegedly was acting on behalf of the government in entrapping Carreon] had in fact entrapped your petitioner. He further alleged, At no time was it ever explained to your petitioner that the defense of entrapment could be asserted if the facts warranted such. When appearing before [the second judge], your petitioner wanted to explain the circumstances to the Court but no such opportunity was ever presented. The Factual-Basis Requirement The factual-basis requirement appears in Rule 11(f), Fed.R.Crim.P., which provides as follows: Notwithstanding the acceptance of a plea of guilty, the court should not enter a judgment upon such plea without making such inquiry as shall satisfy it that there is a factual basis for the plea. The rule also requires that the “verbatim record of the proceedings at which the defendant enters a plea ... of guilty . shall include ... the inquiry into the accuracy of a guilty plea.” Rule 11(g). In addition, the rule contemplates that the court “may ask [the defendant] questions about the offense to which he has pleaded . . . .” Rule 11(c)(5). In the words of the Advisory Committee, the judge must determine “that the conduct defendant admits constitutes the offense . to which [he] has pleaded guilty,” a requirement designed to “protect a defendant who is in the position of pleading voluntarily with an understanding of the nature of the charge but without realizing that his conduct does not actually fall within that charge.” The Supreme Court quoted this language from the Committee’s Notes with approval in McCarthy v. United States, 394 U.S. 459, 467, 89 S.Ct. 1166, 1171, 22 L.Ed.2d 418 (1968). We believe the factual-basis requirement of Rule 11 was not satisfied here. Under the circumstances it was not enough merely to rely on defense counsel’s statement that his client had been informed about possible defénses, to read the charges from the indictment, to ask the defendant whether he had committed the crime charged, and to stop after receiving an affirmative answer to that question. Rule 11 requires that the judge “develop, on the record, the factual basis for the plea, as, for example, by having the accused describe the conduct that gave rise to the charge.” San-tobello v. New York, 404 U.S. 257, 261, 92 S.Ct. 495, 498, 30 L.Ed.2d 427 (1971) (footnote omitted; emphasis in original); Rizzo v. United States, 516 F.2d 789, 793 (2d Cir. 1975). There was a special need for meticulous compliance with the factual-basis requirement when another judge of the court had concluded, after hearing petitioner’s story, that if petitioner spoke the truth the defense of entrapment was possibly available. The judge who conducted the plea hearing the following day was chargeable, as a member of the same court, with knowledge of what had occurred the day before, and it was the duty of the prosecutor and defense counsel to make sure he was fully advised. Given this knowledge, the court was “confronted with a danger signal” and was required to “be especially careful in discharging [its] duties under Rule 11.” United States v. Davis, 516 F.2d 574, 578 (7th Cir. 1975). (The first five words quoted were quoted in Davis from United States v. Gaskins, 158 U.S.App.D.C. 267, 300, 485 F.2d 1046, 1049 (1976).) Cf. United States v. Price, 538 F.2d 722 (5th Cir. 1976). Voluntariness This being a collateral attack under 28 U.S.C. § 2255, it is not enough to show merely a failure to comply with Rule 11. Relief is available only for an error of law that is jurisdictional, constitutional, or constitutes a “fundamental defect which inherently results in a complete miscarriage of justice.” Davis v. United States, 417 U.S. 333, 346, 94 S.Ct. 2298, 2305, 41 L.Ed.2d 109 (1974); Bachner v. United States, 517 F.2d 589, 592-593 (7th Cir. 1975); Gates v. United States, 515 F.2d 73, 76-77 (7th Cir. 1975). When the factual-basis requirement is not satisfied, however, the question of vol-untariness is left open. In explaining the reason for the requirement, the Court said in McCarthy, if a defendant’s guilty plea is not equally voluntary and knowing, it has been obtained in violation of due process and is therefore void. Moreover, because a guilty plea is an admission of all the elements of a formal criminal charge, it cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the facts. 394 U.S. at 466, 89 S.Ct. at 1170 (footnotes omitted). Although McCarthy involved a direct appeal from the judgment of conviction, the Court’s reasons for allowing the defendant to replead are relevant in considering the relief that is appropriate in a collateral review under § 2255. The Court pointed out that merely ordering a voluntariness hearing is likely to be an ineffectual means of assuring that the defendant’s rights were protected when the plea was taken, inasmuch as the defendant’s subjective state of mind is crucial and his proof is likely to be “limited to his own plaintive allegations.” 394 U.S. at 469, 89 S.Ct. at 1172. The Court also said (quoting from Heiden v. United States, 353 F.2d 53, 55 (9th Cir. 1965)), Rule 11 is designed to eliminate any need to resort to a later fact-finding proceeding “in this highly subjective area.” The Rule “contemplates that disputes as to the understanding of the defendant and the voluntariness of his action are to be eliminated at the outset . . . . There is no adequate substitute for demonstrating in the record at the time the plea is entered the defendant’s understanding of the nature of the charge against him. 394 U.S. at 469-470, 89 S.Ct. at 1172 (citations omitted; emphasis in original). We think that the reasoning of McCarthy requires us, even on this collateral review, to order that the judgment of conviction be vacated and that defendant be allowed to withdraw his plea of guilty and replead. We note that the Second Circuit granted that relief under similar circumstances in Rizzo v. United States, supra, 516 F.2d at 794. We take this occasion to address all the district judges in the circuit on the subject of Rule 11. Increasingly we are called upon to determine whether there has been compliance with that rule in cases that typically concern the factual basis for the plea or the maximum possible penalty. If the rule’s explicit requirements are observed, issues such as these will not arise to occupy the time of the district courts and this court. District judges should occasionally remind themselves of the Supreme Court’s admonitions in McCarthy: First, although the procedure embodied in Rule 11 has not been held to be constitutionally mandated, it is designed to assist the district judge in making the constitutionally required determination that a defendant’s guilty plea is truly voluntary. Second, the Rule is intended to produce a complete record at the time the plea is entered of the factors relevant to this voluntariness determination. Thus, the more meticulously the Rule is adhered to, the more it tends to discourage, or at least to enable more expeditious disposition of, the numerous and often frivolous post-conviction attacks on the constitutional validity of guilty pleas. To the extent that the district judge thus [as stated in the Advisory Committee Note quoted above] exposes the defendant’s state of mind on the record through personal interrogation, he not only facilitates his own determination of a guilty plea’s voluntariness, but he also facilitates that determination in any subsequent post-conviction proceeding based upon a claim that the plea was involuntary. Both of these goals are undermined in proportion to the degree the district judge resorts to “assumptions” not based upon recorded responses to his inquiries. 394 U.S. at 465, 467, 89 S.Ct. at 1170, 1171 (footnotes omitted). The judgment is reversed and the case is remanded to the District Court for proceedings consistent with this opinion. Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the gender of this litigant?Use names to classify the party's sex only if there is little ambiguity. A. not ascertained B. male - indication in opinion (e.g., use of masculine pronoun) C. male - assumed because of name D. female - indication in opinion of gender E. female - assumed because of name Answer:
sc_issue_2	02	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. UNITED STATES v. BOARD OF SUPERVISORS OF WARREN COUNTY, MISSISSIPPI, et al. No. 76-489. Decided February 22, 1977 Per Curiam. The motion of Eddie Thomas et al. for leave to file a brief, as amici curiae, is granted. In November 1970, the Board of Supervisors of Warren County, Miss., submitted a county redistricting plan to the Attorney General for his approval under § 5 of the Voting Rights Act of 1965. The new plan was to replace a plan in effect since 1929. After requesting and receiving additional information, the Attorney General entered an objection to the plan. Despite this objection, the Board held elections in 1971 pursuant to the 1970 plan. After the elections, the Board sought reconsideration of the objection. The Attorney General refused to withdraw the objection and in 1973 .filed a complaint, pursuant to § 5, in the District Court for the Southern District of Mississippi. The complaint alleged that the Attorney General’s objection to the 1970 redistricting plan rendered that plan unenforceable under § 5, and that the election districts in effect prior to the 1970 redistricting were malapportioned under the Fourteenth Amendment. Three forms of relief were requested: (1) a declaration that implementation of the 1970 plan violated § 5; (2) an injunction against implementing the 1970 plan or any other new plan until there had been compliance with one of the two procedures required by § 5; and (3) an order that a new redistricting plan be developed and implemented after being found acceptable under § 5. A properly convened three-judge court granted the Government’s motion for summary judgment. In its later order implementing that judgment, the court found that because the upcoming 1975 County elections could not be held as scheduled “without abridging rights guaranteed by the Fourteenth and Fifteenth Amendments to the Constitution,” the elections had to be stayed subject to compliance with the procedure set out in the court’s order. The order provided that the County submit a redistricting plan to the Attorney General for § 5 review and, if no objection were interposed, that elections then be held in accordance with a stipulated schedule. In the event that the County submitted no plan by a stated deadline, or that the Attorney General objected to a submitted plan, or that a submitted plan contained infirmities with respect to the one-person-one-vote requirements of the Fourteenth Amendment, the court would consider plans prepared by both parties and adopt an appropriate redistricting plan to be used in elections held according to the ordered schedule. The County then informally submitted two plans to the Attorney General for comment and the Attorney General indicated his reservations concerning the validity of the plans. This impasse continued until the deadline in the court’s order, after which time the court directed the parties to file their proposed plans for its consideration. After a hearing, the court adopted one of the plans prepared by the County despite the fact that the plan had not been approved pursuant to § 5 procedures. The court found that the adopted plan “neither ■ dilutes black voting strength nor is deficient in one-man, one-vote considerations.” It ordered that the county’s districts be reorganized according to the plan and that elections be held. The United States appealed. This Court has jurisdiction under 42 U. S. C. § 1973c and 28 U. S. C. § 1253. Section 5 provides for two alternative methods by which a State or political subdivision covered by the Act may satisfy the requirement of federal scrutiny of changes in voting procedures. First, the State or political subdivision may institute an action in the District Court for the District of Columbia for a declaratory judgment that the proposed change does not have the purpose or effect of abridging the right to vote on account of race; second, it may submit the proposed change to the Attorney General. No new voting practice or procedure may.be enforced unless the State or political subdivision has succeeded in its declaratory judgment action or the Attorney General has declined to object to a proposal submitted to him. See n. 1, supra. Attempts to enforce changes that have not been subjected to § 5 scrutiny may be enjoined by any three-judge district court in a suit brought by a voter, Allen v. State Board of Elections, 393 U. S. 544, 554-563 (1969), or by the Attorney General on behalf of the United States, Voting Rights Act of 1965, §§12 (d), (f), 42 U. S. C. §§ 1973j (d), (f). In Perkins v. Matthews, 400 U. S. 379 (1971), this Court held that the separate procedures of § 5 imposed a limitation on the determinations that may be made by district courts entertaining actions brought to enjoin § 5 violations: “What is foreclosed to such district court is what Congress expressly reserved for consideration by the District Court for the District of Columbia or the Attorney General — the determination whether a covered change does or does not have the purpose or effect 'of denying or abridging the right to vote on account of race or color/ ” 400 U. S., at 385. Adhering to Allen, the Court held that the inquiry of a local district court in a § 5 action against a State or political subdivision is “limited to the determination whether 'a [voting] requirement is covered by § 5, but has not been subjected to the required federal scrutiny.’ ” 400 U. S., at 383, quoting Allen v. State Board of Elections, supra, at 561. This holding was subsequently reaffirmed in Connor v. Waller, 421 U. S. 656 (1975). ■ Allen, Perkins, and Connor involved private suits by voters claiming noncompliance with § 5 procedures; we now hold that the same limitations on the inquiry of local district courts apply in § 5 actions brought by the Attorney General. The limitation inheres in Congress’ determination that only the District Court for the District of Columbia has jurisdiction to consider the issue of whether a proposed change actually discriminates on account of race and that other district courts may consider § 5 “coverage” questions. See Allen v. State Board of Elections, supra, at 558-559. The District Court in this case twice exceeded the permissible scope of its § 5 inquiry. In the order implementing its summary judgment for the United States, the court apparently decided that the 1970 redistricting plan did not comply with the Fifteenth Amendment. In its later Findings of Fact and Conclusions of Law approving a plan submitted to the court by Warren County, the court “proceeded on the premise that if . . . Fifteenth Amendment protections had not been accorded by any plan proposed, the court could have instituted its own plan,” and then determined that the County plan “will not lessen the opportunity of black citizens of Warren County to participate in the political process and elect officials of their choice.” In both instances the court below erred in deciding the questions of constitutional law; it should have determined only whether Warren County could be enjoined from holding elections under a new redistricting plan because such plan had not been cleared under § 5. Accordingly, the judgment is reversed, and the case is remanded for further proceedings consistent with this opinion. So ordered. Section 5 requires, in relevant part, that whenever a State or political subdivision covered by the Act seeks to administer “any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1964,” it may institute an action in the United States District Court for the District of Columbia for a declaratory judgment that “such qualification, prerequisite, standard, practice, or procedure does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color.” Until the District of Columbia court enters a declaratory judgment to that effect, no person may be denied the right to vote for failure to comply with the new practice or procedure. As an alternative to the requirement of a declaratory judgment, § 5 permits the State or political subdivision to enforce a new voting procedure if the procedure has been first submitted to the Attorney General of the United States and the Attorney General has not, within 60 days, interposed an objection to the proposed change. All actions under § 5 are required to be heard by a three-judge court. Voting Rights Act of 1965, § 5, 79 Stat. 439, 42 U. S. C. § 1973c. There is no dispute in this case that Warren County is a political subdivision covered by the Act, that realignment of election districts is a voting practice or procedure, and that Warren County has not instituted a declaratory judgment action in the District Court for the District of Columbia. The court’s order enjoined the holding of the 1975 elections because they could not be held without abridging Fourteenth and Fifteenth Amendment rights. The court did not elaborate, but it appears to have held that Fourteenth Amendment, one-person-one-vote rights would be abridged if the election were conducted under the old districting plan and the Fifteenth Amendment rights of black voters would be violated if the 1970 redistricting plan were used. Although the record is not clear, the source of the confusion concerning the power of the District Court in this case seems to have arisen from the fact that the Attorney General did not seek merely to enjoin implementation of the 1970 redistricting plan, but also asked the court to enjoin any election until the County had been redistricted in a manner that both met the requirements of the Voting Rights Act and eliminated the malapportionment of the old districts. The malapportionment of the old plan could not, however, be made the subject of a Government suit brought under § 5. The section is addressed only to voting procedures that were not in effect on November 1, 1964. Beer v. United States, 425 U. S. 130, 138-139 (1976). The ahegedly malapportioned districts had existed long before 1964 and were,- therefore, not properly before the court in the § 5 action. Question: What is the issue of the decision? 01. voting 02. Voting Rights Act of 1965, plus amendments 03. ballot access (of candidates and political parties) 04. desegregation (other than as pertains to school desegregation, employment discrimination, and affirmative action) 05. desegregation, schools 06. employment discrimination: on basis of race, age, religion, illegitimacy, national origin, or working conditions. 07. affirmative action 08. slavery or indenture 09. sit-in demonstrations (protests against racial discrimination in places of public accommodation) 10. reapportionment: other than plans governed by the Voting Rights Act 11. debtors' rights 12. deportation (cf. immigration and naturalization) 13. employability of aliens (cf. immigration and naturalization) 14. sex discrimination (excluding sex discrimination in employment) 15. sex discrimination in employment (cf. sex discrimination) 16. Indians (other than pertains to state jurisdiction over) 17. Indians, state jurisdiction over 18. juveniles (cf. rights of illegitimates) 19. poverty law, constitutional 20. poverty law, statutory: welfare benefits, typically under some Social Security Act provision. 21. illegitimates, rights of (cf. juveniles): typically inheritance and survivor's benefits, and paternity suits 22. handicapped, rights of: under Rehabilitation, Americans with Disabilities Act, and related statutes 23. residency requirements: durational, plus discrimination against nonresidents 24. military: draftee, or person subject to induction 25. military: active duty 26. military: veteran 27. immigration and naturalization: permanent residence 28. immigration and naturalization: citizenship 29. immigration and naturalization: loss of citizenship, denaturalization 30. immigration and naturalization: access to public education 31. immigration and naturalization: welfare benefits 32. immigration and naturalization: miscellaneous 33. indigents: appointment of counsel (cf. right to counsel) 34. indigents: inadequate representation by counsel (cf. right to counsel) 35. indigents: payment of fine 36. indigents: costs or filing fees 37. indigents: U.S. Supreme Court docketing fee 38. indigents: transcript 39. indigents: assistance of psychiatrist 40. indigents: miscellaneous 41. liability, civil rights acts (cf. liability, governmental and liability, nongovernmental; cruel and unusual punishment, non-death penalty) 42. miscellaneous civil rights (cf. comity: civil rights) Answer:
songer_appbus	2	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. Charles CRUMBLE and Doris Crumble, Plaintiffs-Appellants, Cross-Appellees, v. Donald BLUMTHAL and Barbara Blumthal, Defendants-Appellees, Cross-Appellants, Joseph A. Thorsen Company and Marquardt-Robnett, Proposed Intervening Plaintiffs-Appellants, Cross-Appellees. Nos. 75-1539, 75-1540. United States Court of Appeals, Seventh Circuit. Argued Oct. 28, 1975. Decided Feb. 9, 1977. F. Willis Caruso, Robert G. Schwemm, Chicago, 111., for Crumble. James H. Canel, Chicago, 111., for Blumthal. Before FAIRCHILD, Chief Judge, CUMMINGS, Circuit Judge, and CHRISTENSEN, Senior District Judge. Senior District Judge A. Sherman Christensen of the United States District Court for the District of Utah is sitting by designation. FAIRCHILD, Chief Judge. These appeals deal with an alleged racial discrimination in the sale of real estate. The plaintiff-buyers brought this action in the district court November 2,1973 alleging that the defendant-sellers refused to perform their contract to sell their house to the buyers because of their race, in violation of the Civil Rights Act, 42 U.S.C. § 1982, and the Fair Housing Act, 42 U.S.C. § 3604. Jurisdiction was alleged under 28 U.S.C. §§ 1343(3), (4) and 2201 and 42 U.S.C. § 3612. The buyers moved for a preliminary injunction and for a consolidation of the trial on the merits with the preliminary injunction hearing. On November 16, 1973, following an evidentiary hearing, the court granted the buyers’ motion for a preliminary injunction, enjoining “. . . the defendants and their agents . . . from refusing to sell the premises at 3816 Florence Avenue, Downers Grove, Illinois, in accordance with the terms of the contract for sale of real estate previously entered into by the parties. . . . ” The closing was subsequently carried out. On November 21, defendant-sellers filed their answer and counterclaim. The answer alleged that defendants had terminated their contract because of dishonor of plaintiffs’ earnest money check; that notwithstanding the termination, defendants had been willing to sell, and executed an escrow agreement for such purpose, which plaintiffs refused to execute. The counterclaim sought damages and other relief because of the breach by plaintiffs. On November 29, Thorsen and Marquardt-Robnett moved for leave to intervene as plaintiffs. They are real estate brokers and in the contract for sale to plaintiffs, defendant-sellers had promised to pay them a commission. Intervenors asserted that sellers’ refusal to pay the commission punished intervenors for securing housing for plaintiffs. The court denied intervention. On January 18, 1974, the court held an evidentiary hearing on the question of damages, granted plaintiff-buyers’ motion for consolidation of the trial on the merits with the preliminary injunction hearing, and offered to hear additional evidence on the merits. The court granted judgment for the buyers for their actual loss in the amount of $322.00. The court denied, however, the buyers’ claim for punitive damages and attorneys’ fees. The buyers then appealed from that order. We dismissed the appeal for lack of jurisdiction because the order appealed from was not final. The defendant-sellers’ counterclaim was still pending and the trial court had not made the express determination required under Rule 54(b) of the Federal Rules of Civil Procedure. This court also dismissed an appeal from the denial of intervention. Following the dismissal of the appeal, arguments were heard and evidence taken in the district court concerning the defendants’ counterclaim, and on April 7, 1975 the court denied the counterclaim. The court again refused leave for the brokers to intervene. The buyers then appealed challenging the order denying their claim for punitive damages and attorneys’ fees, and the brokers appeal from denial of leave to intervene. The sellers cross-appeal challenging the orders granting the injunction, awarding the buyers actual damages, and denying their counterclaim. I Plaintiff-buyers, who are black, were shown the defendant-sellers’ house by an employee of one of the brokers. After an initial draft of August 13, 1973, the parties executed a contract, as modified, September 6, 1973, and an earnest money check was delivered to sellers’ attorney. The check, dated September 6, was signed by plaintiff Doris Crumble, in the amount of $6,700, drawn on the Continental Bank, and payable to sellers’ attorney as eserowee. On September 7, sellers’ attorney wrote buyers’ attorney terminating the contract and stating that the check “has been returned NSF.” He had asked his bank, the Northern Trust, to obtain certification, and had received word that the check was NSF. In fact, Mrs. Crumble had made an adequate transfer of funds from her savings account, and the NSF report arose either from a delay in recording the transfer at Continental or from a misunderstanding at Northern Trust of the reason for Continental’s refusal to certify. The buyers’ attorney advised the sellers’ attorney that the check was covered at all times, and there were further negotiations. Buyers tendered a certified check. An escrow agreement was prepared and signed on behalf of sellers on October 1. The sellers, however, were unwilling to have the amount of the commission disbursed to the brokers, and their attorney withdrew the escrow agreement. This action was brought several weeks later. II HOUSING DISCRIMINATION On cross-appeal the sellers argue that the evidence is insufficient to demonstrate that they refused to sell their house because of a racial animus. They contend that the failure of the buyers’ bank to certify the earnest money check was a breach which permitted them to terminate the contract and caused them to have misgivings about the buyers’ ability to complete the sale. Up to and after the time of this alleged breach, the sellers claim that they did not know the buyers were black. They argue that there was no contract thereafter, that they were willing, however, to carry out the deal, but that buyers failed to execute the escrow agreement for closing. Although the sellers argue that the district court erred in compelling them to sell their house, they now appear willing to abide by the “forced sale”; but they seek damages for the cost of additional attorneys’ fees, the maintenance of their house, and the loss of equity, all of which occurred as a result of the buyers’ alleged breach of contract. Therefore, as we understand it, the sellers urge us to find that the court erred in finding them liable and awarding damages to the buyers, and in addition they ask us to grant their counterclaim making them whole for financial losses suffered as a result of the buyers’ breach. At the outset we must consider the consequence of the consolidation of the preliminary injunction hearing with the trial on the merits. See Fed.R.Civ.P. Rule 65(a)(2), 28 U.S.C. We are convinced that the district court acted within its discretion in granting plaintiffs’ motion to consolidate. See Singleton v. Anson County Board of Education, 387 F.2d 349, 351 (4th Cir. 1967). Even though the motion was granted after the preliminary injunction hearing was completed, both parties had the opportunity to introduce new evidence and present additional arguments on the merits in the subsequent hearing. At the close of that hearing the record appeared to be sufficiently complete to have warranted a judgment on the merits. See Pughsley v. 3750 Lake Shore Drive Cooperative Bldg., 463 F.2d 1055, 1057 (7th Cir. 1972). The parties were made aware early in the second hearing that the court intended to reach a final judgment and therefore they understood that this hearing was meant to be their “final day in court.” The situation differed significantly from Puerto Rican Farm Workers v. Eatmon, 427 F.2d 210, 211 (5th Cir. 1970). The pertinent findings were dictated on the record, in substance, as follows. The court found that the September 6 check was a sufficient tender of the earnest money and that it was covered by sufficient funds. The transfer of the check to Northern Trust for certification by Continental was not negotiation through normal banking channels. Sellers, however, were in good faith in relying on the information received from the Northern Trust, but the refusal by Continental to certify the check did not result in the violation of buyers’ contractual obligation. The stumbling block was the refusal of the sellers to authorize the payment of the commission to the broker, and it was the knowledge of the sellers that the buyers were black which precipitated the intransigent attitude of the sellers concerning the refusal to see the commission go to the broker. Thus the breakdown of the deal had its roots in racial discrimination involving the buyers. Although the only direct evidence as to sellers’ learning the race of the buyers was testimony that in a conversation on October 4, the husband asked if they were black, and was told they were, the court considered “that was the first confirmation Mr. Blumthal had of what he had for some unascertained time prior to that learned to suspect.” In our view, the findings were not clearly erroneous. Under the circumstances it is reasonable to find that the sellers’ decision not to pay the real estate commission to the brokers, as provided in both the real estate sales contract and the escrow agreement, caused the transaction to be terminated. There was testimony that aj; the time when the house was first listed for sale the sellers indicated that they preferred not to sell to black buyers. Still later, the sellers again voiced displeasure at the conduct of the brokers in securing black buyers. Finally, it was after the problem of the earnest money check had been resolved and negotiations between the attorneys were reopened, that the sellers must have instructed their attorney to remove the escrow agreement and terminate the transaction. As analyzed by the district court, the sellers, who were in Florida, had begun to suspect that the buyers were black before they first raised objections to paying the commission as required by the contract, and they had admittedly learned the race of the buyers before the escrow was withdrawn. Sellers’ counterclaim was based on the theory that the delivery of the September 6 check was a breach of the real estate sales contract which caused them damage including additional expense of maintenance, attorneys’ fees, and the like. In briefly considering the sellers’ counterclaim the district court found that the . . evidence is not conclusive on the issue whether the dishonoring by the bank of the buyers’ earnest money check was the cause of any significant amount of the counterclaimant sellers’ aggravation or pecuniary loss.” That finding is not clearly erroneous, and in any event we are not persuaded that the delivery of the September 6 check was a breach of the real estate sales contract. Ill DAMAGES AND ATTORNEYS’ FEES The buyers argue on appeal that the district court erred in its assessment of compensatory damages suffered as a result of the sellers’ refusal to sell. In addition, they contend that the court should have levied punitive damages against the sellers and awarded the buyers their attorneys’ fees. The court did find that the buyers had suffered damages in the amount of $322.00. Based on the evidence in the record, we find that this award is reasonable as to out-of-pocket expense. The buyers also claim damages due to the humiliation and mental anguish they suffered as a result of the violation of their civil rights. Mr. Crumble testified that he was humiliated and embarrassed by the sellers’ conduct. The district court did not specifically address this claim. Relief for such injury is contemplated by the Fair Housing Act, 42 U.S.C. § 3612(c), and our court, as well as others, has allowed recovery when it has been warranted. Seaton v. Sky Realty Company, Inc., 491 F.2d 634, 636—37 (7th Cir. 1974); Steele v. Title Realty Company, 478 F.2d 380, 384 (10th Cir. 1973). The claim that plaintiff suffered humiliation and loss of personal esteem as a result of this type of violation of his rights is entitled to consideration and a reasonable compensation. We remand this claim to the district court for appropriate attention. Punitive damages may also be awarded under the Act. Rogers v. Loether, 467 F.2d 1110, 1112 (7th Cir. 1972), aff’d sub nom., Curtis v. Loether, 415 U.S. 189, 94 S.Ct. 1005, 39 L.Ed.2d 260 (1974). The district court, without much comment, denied the buyers’ petition for punitive damages. Although sellers were found to have intended to discriminate, the fact that a wrong is an intentional act does not compel an award of punitive damages as a matter of law. For various descriptions of the degree of malevolence warranting punitive damages, see Seaton v. Sky Realty Company, Inc., 491 F.2d 634, 638 (7th Cir. 1974); Jeanty v. McKey & Poague, Inc., 496 F.2d 1119, 1121 (7th Cir. 1974); Marr v. Rife, 503 F.2d 735, 744 (6th Cir. 1974). We do not find that the district court abused its broad discretion in denying the buyers’ request for punitive damages. The buyers also urge us to reverse the district court’s order denying them attorneys’ fees for work done by their private counsel, Mr. Zells, and by the staff attorney of the Leadership Council, Mr. Caruso. Attorneys’ fees are recoverable by a successful plaintiff under both § 1982 and § 3612(c). Marr, supra, at 743. Section 3612(c) provides that a successful plaintiff may be awarded attorneys’ fees if the “. plaintiff in the opinion of the court is not financially able to assume said attorney’s fees.” The trial court determined that the plaintiffs were “persons of better than average financial means” and therefore could not be reimbursed for attorneys’ fees. A calculation of the plaintiffs’ ability to pay attorneys’ fees is apparently the only factor to be considered by the court. Hairston v. R & R Apartment, 510 F.2d 1090, 1092 (7th Cir. 1975); Williams v. Mathews Company, 499 F.2d 819, 829 (8th Cir. 1974), cert. denied, 419 U.S. 1027, 95 S.Ct. 507, 42 L.Ed.2d 302 (1974). Section 1982 does not provide specific guidelines for the recovery of attorneys’ fees, and our court has not formed a standard for recovery, particularly in cases in which" plaintiffs seek relief under both § 1982 and § 3612(c). Hairston, supra, at fn. 1. Where both statutes cover the situation, we see no reason for making an award under § 1982 on a more liberal basis than under § 3612(c). Cf. Lee v. Southern Home Sites Corp., 444 F.2d 143, 148 (5th Cir. 1971). Therefore, since the plaintiffs have not demonstrated an inability to assume the expense of attorneys’ fees, we find that the district court did not abuse its discretion in denying the award. IV LEAVE TO INTERVENE The real estate brokers moved the district court for leave to intervene, claiming that under the Fair Housing Act, 42 U.S.C. § 3617, they have a cause of action against the sellers for damages. The district court denied the motion, and the brokers have appealed. Intervention in an action may be permitted “. . . when an applicant’s claim or defense and the main action have a question of law or fact in common.” Fed.R. Civ.P. Rule 24(b)(2), 28 U.S.C. In deciding whether to allow intervention the “. court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.” Id. The district court did not state its reasons for denying the motion for leave to intervene, rendering a review of the court’s exercise of discretion more difficult. The brokers’ claim is based on the allegations that the seller had refused to pay the real estate commission, as required in the real estate sales contract, because the brokers aided the plaintiff-buyers in the exercise of their right to buy real estate. The Fair Housing Act, 42 U.S.C. § 3617, makes it unlawful for anyone to “. . . coerce, intimidate, threaten, or interfere with any person . . . [who] . . . encourage[s] any other person in the exercise or enjoyment of, any right granted or protected by section 3604, . . . .” The Act provides that this section may be enforced by “appropriate civil action.” Section 3617 apparently provides the brokers with a cause of action if they are “intimidated or interfered with” when aiding a buyer in the exercise of his right to buy or sell a house. Cf. Smith v. Stechel, 510 F.2d 1162, 1164 (9th Cir. 1975). This section seems clearly to include within its coverage the kind of retaliatory conduct that the sellers are accused of. In addition, the brokers’ claim seems appropriate for resolution with the buyers’ cause of action. The common questions of law and fact in both actions relate to the sellers’ refusal to sell their house in violation of the Fair Housing Act. Both the brokers and the buyers trace the cause of their injury to the sellers’ illegal conduct. See Romasanta v. United Airlines, Inc., 537 F.2d 915, 919 (7th Cir. 1975), cert. granted sub nom., United Airlines v. McDonald, —U.S. —, 97 S.Ct. 523, 50 L.Ed.2d 608 (1976). The general purpose of the Act, to encourage the transfer of real estate regardless of race, is well served by allowing brokers who follow the law to join aggrieved buyers in enforcing their rights. The other requirements of permissive intervention have also been met. The brokers filed their motion for leave to intervene shortly after the buyers brought their action, thereby satisfying any objections that they had not acted in a timely manner or had caused undue delay. They took an appeal which was dismissed, perhaps improvidently. They renewed their motion and appealed again. Finally, we can find no evidence that permitting the brokers to intervene will prejudice the rights of any of the parties. Much of the relevant evidence is already before the court. Of course, intervenors and defendant-sellers are free to offer additional evidence, but it seems probable that it will not be extensive, nor that intervention at this stage will visit a burden on the district court sufficient to be a reason in itself for affirming the denial of intervention. The fact that the substance of intervenors’ federal court cause of action may in some respects parallel their cause of action on contract does not detract from the appropriateness of intervention in these circumstances. Therefore, we find that the district court abused its discretion, and that the brokers’ motion for leave to intervene should now be granted. Insofar as the judgment appealed from failed to award plaintiffs compensatory damages for humiliation and mental anguish, it is reversed. The order denying intervention is reversed. The cause is remanded for further proceedings consistent with this opinion. In all other respects, the judgment is affirmed. Costs on appeal are allowed to plaintiffs and proposed intervenors. . The Civil Rights Act of 1866, 42 U.S.C. § 1982, guarantees the following: All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property. . The Fair Housing Act of 1968, 42 U.S.C. § 3604, in pertinent part provides the following: As made applicable by section 3603 of this title and except as exempted by sections 3603(b) and 3607 of this title, i( shall be unlawful— (a) To refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, or national origin. . The district court incorrectly implied that since Mr. Caruso was employed on a salaried basis for the Leadership Council he could not, under § 3612(c), receive on behalf of the Council an award for attorneys’ fees. We recently held in Hairston v. R & R Apartments, infra, at 1092, that a charitable organization may receive attorneys’ fees. The factors to be considered in making such an award are the plaintiffs’ ability to pay the fee and the existence of a lawyer-client relationship. Tillman v. Wheaton-Haven Recreation Ass’n, Inc., 517 F.2d 1141, 1148 (4th Cir. 1975). . Section 810(a) of the Act, 42 U.S.C. § 3610(a), has also been interpreted to provide a remedy for a broad class of people injured because of housing discrimination. Trafficante v. Metropolitan Life Ins., 409 U.S. 205, 212, 93 S.Ct. 364, 34 L.Ed.2d 415 (1972). 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_state	45	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". Paul KNOLL, Plaintiff-Appellant, v. Gary L. WEBSTER, in his private and personal capacity, (Chairman Utah Parole Board), Defendant-Appellee. No. 87-2124. United States Court of Appeals, Tenth Circuit. Feb. 2, 1988. Paul Knoll, pro se. David Wilkinson, Atty. Gen., Salt Lake City, Utah, for defendant-appellee. Before LOGAN, SEYMOUR and ANDERSON, Circuit Judges. PER CURIAM. After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed.R. App.P. 34(a); 10th Cir.R. 34.1.8(c) and 27.1.-2. The cause is therefore ordered submitted without oral argument. The plaintiff appeals from the district court’s order dismissing his 42 U.S.C. § 1983 civil rights suit against the defendant, who is a member of the Utah Board of Pardons. The plaintiff alleged that the defendant, who was responsible for determining the plaintiff’s release date, violated the provision of the Eighth Amendment that prohibits the imposition of excessive fines. The district court concluded that the defendant was immune from liability under § 1983 and dismissed the action. The district court also imposed a ten dollar sanction on the plaintiff “to deter further abuse of process.” On appeal, the plaintiff argues that the defendant is not immune and that the ten dollar fine is “wrong.” We conclude that as a member of the Board of Pardons, the defendant is absolutely immune from damages liability for actions taken in performance of the Board’s official duties regarding the granting or denying of parole. Accord Johnson v. Rhode Island Parole Bd. Members, 815 F.2d 5, 8 (1st Cir.1987); Evans v. Dillahunty, 711 F.2d 828, 830-31 (8th Cir.1983); United States ex rel. Powell v. Irving, 684 F.2d 494, 496-97 (7th Cir.1982); Sellars v. Procunier, 641 F.2d 1295, 1303 (9th Cir.), cert. denied, 454 U.S. 1102, 102 S.Ct. 678, 70 L.Ed.2d 644 (1981); Thompson v. Burke, 556 F.2d 231, 236 (3d Cir.1977); Pope v. Chew, 521 F.2d 400, 405 (4th Cir.1975). Therefore, the district court correctly dismissed the plaintiff’s action. Moreover, the district court’s imposition of a ten dollar sanction was proper. The plaintiff admits that the present case raises issues virtually identical to those he raised in three previously dismissed actions. Thus, the record supports the district court’s conclusion that the plaintiff needed to be deterred from further abuse of process. Cf. Fed.R.Civ.P. 11; Chevron, U.S.A., Inc. v. Hand, 763 F.2d 1184 (10th Cir.1985). The judgment of the United States District Court for the District of Utah is AFFIRMED. The mandate shall issue forthwith. 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_usc1sect	157	What follows is an opinion from a United States Court of Appeals. Your task is to identify the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 29. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA". UNITED STEELWORKERS OF AMERICA, AFL-CIO, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Armco Steel Corporation, Armco Employees Independent Federation, Inc., Intervenors. No. 19945. United States Court of Appeals District of Columbia Circuit.' Argued Nov. 23, 1966. Decided Dec. 20, 1966. Mr. Michael Gottesman, Washington, D. C., with whom Mr. Elliot Bredhoff, Washington, D. C., was on the brief, for petitioner. Mr. Warren M. Davison, Atty., N. L. R. B., with whom Mr. Arnold Ordman, Gen. Counsel, Mr. Dominick L. Manoli, Associate Gen. Counsel, and Mr. Marcel MalletPrevost, Asst. Gen. Counsel, N. L. R. B., were on the brief, for respondent. Mr. Jerome Powell, Washington, D. C., with whom Messrs. William H. Willcox and Grant W. Wiprud, Washington, D. C., were on the brief, for intervenor Armco Steel Corp. Mr. Theodore Repper, Jr., Middletown, Ohio, was on the brief for intervenor Armco Employees Independent Federation, Inc. Before Prettyman, Senior Circuit Judge, and Burger and McGowan, Circuit Judges. PER CURIAM: This is a Labor Board case. The Arm-co Steel Corporation had a contract with the Armco Employees Independent Federation as bargaining representative of its employees. The contract provided, inter alia, that the Company would furnish bulletin boards whereon the Union could post notices, but that “There shall be no other distribution or posting by employees of literature upon Company property except as approved by the Company.” The Steelworkers (our petitioner), campaigning for employee support to replace the Federation as bargaining representative, filed charges against the Federation for violation of Section 8(b) (1) (A) of the Act. 2It said that the Federation was restraining or coercing employees in the exercise of a right guaranteed in Section 7 of the Act, namely the right to distribute literature on Company property. The Federation responded that the employees, by the contract, legally negotiated by the duly accredited bargaining representative, had waived that right. The Board dismissed the complaint. It appears that this same provision of this same contract between the Federation and the Armco Steel Corporation had been before the Board, and thereafter before the Court of Appeals for the Sixth Circuit, upon charges brought against the Company for violating Section 8(a) (1) of the Act. The court, in a unanimous decision handed down April 27,1965, held that the contract was valid, and it set aside the order of the Board. The court said, inter alia, “In our opinion, whatever right employees had under Section 7 to distribute union literature on company property may be waived by their collective bargaining representative.” In the case at bar the Board, upon authority of the foregoing opinion, dismissed the charges. The Steelworkers now claim error in that action. Under the circumstances the Labor Board, had it been so minded, might properly have requested a reconsideration by the Sixth Circuit or, with respect, might have announced its intention of seeking a conflict in circuits on the point; this latter is an acceptable course in view of the general public understanding as to the practice of the Supreme Court in respect to writs of certiorari. But we certainly cannot hold the Board to have been in error when it decided to follow a decision of a Court of Appeals, especially of the circuit in which the relevant affairs occurred. Affirmed. . 61 Stat. 141 (1947), 29 U.S.O. § 158(b) U) (A). . 61 Stat. 140 (1947), 29 U.S.O. § 157. . Armco Steel Corporation v. N.L.R.B., 6 Cir., 344 F.2d 621, 624. Question: What is the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 29? Answer with a number. Answer:
songer_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 CROISSANT v. ADAMS et al. Circuit Court of Appeals, Seventh Circuit. June 13, 1928. No. 3988. 1. Injunction <©=>136(2) — Holder of certificates in syndicate held entitled to injunction pendente lite to preserve assets in hands of trustees pending suit for refund of subscriptions. Shareholder, suing as one of class of holders of certificates in syndicate, held entitled to injunction pendente lite to preserve assets in hands of trustee and former trustees of syndicate, pending suit to recover subscriptions paid in accordance with alleged agreement providing for return of subscriptions in event land was not purchased by certain date. 2. Courts <3=405(3) — Appeal does not lie to Circuit Court of Appeals from refusal to remove attorneys appearing for codefendant because they formerly acted for defendant (23 USCA § 227). Under 28 USCA § 227, appeal does not lie to Circuit Court of Appeals from refusal of motion on behalf of defendant to remove certain attorneys appearing in action, for codefendant in matters important in suit. Appeal from the District Court of the United States for the Eastern Division of the Northern. District of IHinois.’ Suit by Frank E. Adams against G. Frank Croissant and others. From an interlocutory order restraining defendant Croissant and others from disposing of funds held by them, and from a denial pf a motion on behalf of said defendant to remove certain attorneys appearing for other defendants, said defendant' appeals. Affirmed. Joseph R. Roach, of Chicago, Ill., for appellant. Robert N. Golding, of Chicago, Ill., for appellees. Before ALSCHULER, EVANS, and PAGE, Circuit Judges. ALSCHULER, Circuit Judge. Croissant appeals from an interlocutory order of the District Court restraining him and others “from selling, transferring, giving away, or otherwise disposing of any and all funds of said G. Prank Croissant Boca Baton Syndicate, and any other funds, or parts thereof, held by them and which are comprehended within the pleadings,” and restraining all persons from legal proceedings against the property of the syndicate held by any of the defendants; and from the denial of a motion on behalf of Croissant to remove certain attorneys appearing in the action for defendants Presehem and the Union Bank, on the ground that they had formerly acted for defendant Croissant in matters important in the suit, and in regard to which the position of Croissant is “drastically antagonistic” to that of the other defendants. Frank E. Adams on September 10, 1927, brought suit as one of a class of holders of certificates in the G. Prank Croissant Boca Baton Syndicate, and as purchaser of a lot sold by the syndicate in its Boca Baton development, averring that defendants Presehem and the Union Bank of Chicago, of which Presehem was vice president and trust officer, on or about August 15, 1925, became trastees of the syndicate organized for the purchase and development of a tract of Florida land, and that as such they had collected money paid by purchasers of membership certificates in the syndicate; such certificates stating that in the event the land was not purchased by January 2, 1926, the subscriptions would be refunded. It was further charged that Presehem and the bank received as trustees a sum exceeding $1,500,000 for the purchase of such Florida land, of which they paid $760,000 to an irresponsible person, Boyland, for contracts relating to the land intended for the development, which was lost to the syndicate by Boyland’s default; that on December 15, 1925, Croissant succeeded Presehem and the bank as trustee, and collected about $500,000 in that capacity; that there were more than 750 subscribers to the syndicate, who, because of the failure of the syndicate to acquire title to the land, it is alleged, are now entitled to the return of their subscriptions. The bill prayed for an accounting, dissolution of the trust, and judgment against the defendants for such sums as were lost by their dereliction. Croissant answered,'making the same allegations as Adams as to Presehem and the bank, elaborating upon them in regard to the attempted purchase of land, but denying the charges as to his own conduct. He admits that as trustee he collected and borrowed large sums of money, most of which became lost to the syndicate through payments as commissions, salaries, interest on mortgages, and for development work, and charges that, but for the conduct of the other defendants, he would have carried out the project, and have sold lots to the sum of $40,000,000, and have earned for himself $6,000,000, instead of which he has been required to pay out over $1,000,000, in part his own money, to certificate holders and purchasers of lots. The answer prayed an accounting by Presehem and the bank, on behalf of both the syndicate and Croissant individually, for moneys advanced by him, and for judgment against them for losses sustained because of their unlawful acts. The answers of defendants Presehem and the bank denied that they had ever been or acted as trustees of the syndicate, but admitted the bank received a large sum as subscriptions to the syndicate, and paid out large sums, but always at the request and with the authorization of Croissant; that the attempted purchase of land was by men associated with Croissant, and not by Presehem or the bank, and that with.the knowledge of the members of the syndicate Croissant spent large sums for purposes other than those of the trust; that, for a loan to Croissant of $100,000 by the bank, Croissant had assigned as collateral his claims for deferred commissions, and his beneficial interest in the trust, for all of which the bank claims to be entitled to indemnity from Croissant and a lien on his interest in the syndicate; that other parties, associated with Croissant, had likewise borrowed from the bank and assigned their interests as security; and it was prayed that they be made parties and required to account, and that Croissant be removed as trustee, and a receiver be appointed, the trust wound up, and the assets protected by temporary and permanent injunctions. Numerous affidavits and exhibits accompanied these pleadings, revealing an unusually involved and confusing situation, a diversity of claims, and little assurance of the existence of assets sufficient to meet them all. Croissant moved the court to require the attorneys representing Presehem. and the bank to cease from further representing them in the cause, and on the hearing of this motion the court denied it, and entered the interlocutory injunction complained of. The record shows a complicated and unusual situation, one in which it was not only within the discretion of the court to preserve the assets by injunction pendente lite, but where a failure to so protect them might more properly have given ground for complaint. Any party deeming the pendency of the injunction harmful to his interest may by appropriate action undertake to speed the cause, and in view of the many interests apparently involved we indulge the hope that .it has already so far progressed that its disposition may quickly follow. As to the complaint of the court’s action on the motion to remove or dismiss certain attorneys appearing in the cause, we do not feel this is a matter whereon appeal will lie at this stage of the cause. The statute which alone confers authority to entertain appeals from interlocutory orders and decrees does not authorize appeal from an order such as this. 28 U. S. Code, 227 (28 USCA § 227). The order for interlocutory injunction 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_respond1_3_2	C	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant. AMAX PETROLEUM CORPORATION, Big Chief Drilling Company, Cleary Petroleum, Inc., Davon Drilling Company, Earlsboro Oil & Gas Co., Inc., King-Stevenson Gas & Oil Company, Little Nick Oil Company, Seneca Oil Company, and Woods Petroleum Corporation, Petitioners, v. FEDERAL POWER COMMISSION, Respondent. No. 8037. United States Court of Appeals Tenth Circuit. Aug. 19, 1965. Lewis G. Mosburg, Jr., of Mosteller, Andrews & Mosburg, Oklahoma City, Okl., for petitioners. Israel Convisser, Washington, D. C., for respondent. Before PICKETT, LEWIS and SETH, Circuit Judges. LEWIS, Circuit Judge. Amax Petroleum Corporation and eight others seek review by joint and several petition of an order of the Federal Power Commission issued November 4, 1964 and designated as an “Order Declining to Issue Small Producers Report Forms.” The order was made in an area rate proceeding (Hugoton-Ana-darko Area) originating under the Natural Gas Act, 15 U.S.C. § 717 et seq., initiated to determine the just and reasonable rates for jurisdictional sales of natural gas within the designated geographical area. The specific effect of the order is a Commission refusal to compel the so-called small producers to furnish cost information to the Commission or to require the Commission staff to compile such information in a form suitable for evidentiary presentation at the trial stage of the proceeding. The order was premised upon a finding that: “a mandatory filing requirement would be infeasible because of the inadequate records of many small producers, and a voluntary filing requirement would be undesirable because of the uncertainty that responses would be representative.” Petitioners assert the order to be arbitrary, discriminatory against their rights as small producers, and a prejudgment of the evidence which they intend to produce at the area hearing. The relief sought is an order directing the Commission to require small producers (those whose sales exceeded 500,000 MCF or whose drilling costs exceeded $250,000) to file factual data of cost as an aid to the Commission in its ultimate determination of rates. The case reaches us upon motion to dismiss for lack of jurisdiction made by the Commission without certification of the administrative record. Since the test of jurisdiction lies not with the interlocutory form of the order but with a determination of whether the order presently results in the setting of legal consequences in derogation of petitioners’ rights, Cities Service Gas Co. v. Federal Power Commission, 10 Cir., 255 F.2d 860, cert. denied, Magnolia Petroleum Co. v. Cities Service Gas Co., 358 U.S. 837, 79 S.Ct. 61, 3 L.Ed.2d 73; Phillips Petroleum Co. v. Federal Power Commission, 10 Cir., 227 F.2d 470, cert. denied, Michigan Wisconsin Pipe Line Co. v. Phillips’ Petroleum Co., 350 U.S. 1005, 76 S.Ct. 649, 100 L.Ed. 868, we are presently concerned only with whether a jurisdictional defect appears upon the .face of the petition. Such defect may appear as a procedural failure, Utah Power & Light Co. v. Federal Power Commission, 10 Cir., 339 F.2d 436, but may also appear as a substantive matter if the parties raise no factual issue as in Amerada Petroleum Corp. v. Federal Power Commission, 10 Cir., 338 F.2d 808, and if jurisdiction is not so intertwined with the merits as to make the issue dependent. Texaco, Inc. v. Federal Power Commission, 10 Cir., 317 F.2d 796, reversed on other grounds, Federal Power Commission v. Texaco, Inc., 377 U.S. 33, 84 S.Ct. 1105, 12 L.Ed.2d 112. And see Sunray DX Oil Company v. Federal Power Commission, 10 Cir., 351 F.2d 395, dec. June 30, 1965. In the case at bar there is no factual dispute nor has the Commission by its order established a procedural framework that negatives consideration of small producers’ costs as a factor in determining ultimate rates and thus barred petitioners from the merits by indirection. To the contrary, the petition for review discloses that the Commission will accept evidence of small producers’ costs and that petitioners intend to offer such evidence. The real substance of petitioners’ complaint attacks the considered judgment of the Commission, made after hearing, as to how to employ its statutory investigative powers and how to direct the efforts of its staff members. Such decisions are not subject to judicial review for they are essentially an administrative function. Federal Power Commission v. Idaho Power Co., 344 U.S. 17, 73 S.Ct. 85, 97 L.Ed. 15. And this is so although the administrative decision in such regard is made over the protest and against the advice of interested parties or the Commission’s own experts. It is true, as petitioners point out with understandable emphasis, that the subject order is premised upon a finding of the Commission that makes reference to “inadequate records of many small producers” and uncertainty of representative responses. Petitioners assert such phraseology to constitute a prejudgment of their proposed claims. We cannot agree that such conclusion follows as a matter of law nor as an inference of fact affecting the merits. The Commission, as a matter of expertise, may draw upon their experience in determining the ground rules for their own investigation and may divert their general efforts in accord with their specialized knowledge; the Commission cannot, of course, under the guise of expertise, deny a specific right. But this latter they have not done by the subject order. The remaining substance of the petition seeking review constitutes an argument contra to area pricing in general and an asserted apprehension that the over-all attitude and procedures of the Commission will inevitably result in lack of consideration for the small producer and prove the stated prediction of Mr. Justice Clark that the small producers will end up “the dead duck.” State of Wisconsin v. Federal Power Commission, 373 U.S. 294, 317, 83 S.Ct. 1266, 10 L.Ed.2d 357. We, of course, express no opinion in such regard except to state that no presently reviewable issue is presented. We conclude that the subject order is interlocutory in nature, that petitioners are not presently aggrieved thereby as defined by Section 19(b) of the Natural Gas Act and that lack of jurisdiction appears upon the face of the petition. Accordingly, the petition to review is Dismissed. . Each of petitioners is a “small producer,” that is, an independent whose sales in interstate commerce in 1962 were less than 10,000,000 MCF. . Major producers have been required to furnish factual data of their costs, Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Which category of federal government agencies and activities best describes this litigant? A. cabinet level department B. courts or legislative C. agency whose first word is "federal" D. other agency, beginning with "A" thru "E" E. other agency, beginning with "F" thru "N" F. other agency, beginning with "O" thru "R" G. other agency, beginning with "S" thru "Z" H. Distric of Columbia I. other, not listed, not able to classify Answer:
songer_district	C	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". PEN-O-TEX OIL & LEASEHOLD CO. v. BIG FOUR OIL & GAS CO. Circuit Court of Appeals, Third Circuit. December 19, 1927. No. 3696. 1. Mines and minerals @=>79(7) — Privity between plaintiff and defendant is necessary to authorize recovery for breach of contracts and covenants in oil lease. In action for damages for breaches of contracts and covenants in oil lease, plaintiff must show either privity of contract or privity of estate between itself and defendant. 2. Mines and minerals <§=>74 — Privity between plaintiff, who assigned oil lease, and defendant, who bought half interest from assignee, held not to exist, authorizing recovery for defendant’s breach of contract. • Where plaintiff assigned oil lease in contract not extending to successors and assigns, and assignee with plaintiff’s' knowledge and consent sold one-half interest to defendant, which assumed its proportion of obligations of assignee to plaintiff for drilling, there was no privity of contract between plaintiff and defendant, authorizing recovery for breach, notwithstanding that defendant controlled plaintiff’s assignee by stock ownership. 3. Mines and minerals <§=>74 — Privity between plaintiff, agreeing to assign lease to another, and defendant, assignee of such other, held not to exist, authorizing recovery for defendant’s breach of contract. Where plaintiff made contract wherein it did “agree to sell and assign” certain leased premises to another, which in turn made contract with defendant whereby it did “agree to sell and assign” half interest and promised assignments were never made, there was no privity of estate between plaintiff and defendant, authorizing suit for breach of contract or lease, since agreement to assign is not assignment; doctrine of covenants running with land not availing plaintiff, since it is based on fact that some estate has been transferred. 4. Mines and minerals <§=>74 — “Agreement to assign” oil lease, is not “assignment” of “lease.” Agreement to assign oil lease is not “assignment” of lease itself, since no present transfer of estate is intended or involved, and lease must contain words importing present demise. [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Assignment.] In Error to the District Court of tbe United States for tbe Western District of Pennsylvania; Robert M. Gibson, Judge. Action by tbe Pen-O-Tex Oil & Leasehold’ Company against tbe Big Four Oil & Gas Company and another. Judgment for tbe named defendant, and plaintiff brings error. Affirmed. William T. Tredway, of Pittsburgh, Pa., for plaintiff in error. ' John W. Dunkle, of Pittsburgh, Pa., for defendant in error. Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges. WOOLLEY, Circuit Judge. Tbe Pen- , O-Tex Oil & Leasehold Company instituted this suit against the Pittsburgh Western Oil Company and the Big Four Oil & Gas Company, all corporations. The Big Four Oil & Gas Company filed an affidavit of defense in the nature of a demurrer and, on hearing, the court entered judgment for that company alone. The Pittsburgh Western Oil Company, though served with process, either did not appear or, because of an intimated lack of financial responsibility, was left out of the case. This writ of error, however, is directed to the judgment for the Big Four Oil & Gas Company. We shall, therefore, deal only with questions raised as to its liability. In the interest of brevity, we shall, in stating the facts of the case, abbreviate names and omit dates and many figures. Downie, owner, leased 140,000 acres of land in Texas to Kuykendall for oil and gas mining purposes under covenants (extending to their respective heirs and assigns) that the lessee should commence the drilling of a well within a year or, on default, the lease should terminate, unless continued by payment of a certain yearly rental. Kuykendall assigned thirty-three sections of the leased land to Cranston (his heirs, etc.) who, by separate contract with Kuykendall, undertook to drill a test well on the premises. Cranston assigned his leased thirty-three sections and also the drilling contract between himself and Kuykendall to the Pen-O-Tex, the plaintiff in this suit, which assumed Cranston’s contractual well-drilling obligations. Pen-O-Tex then entered into a contract with Fairchild (extending to their heirs, successors, etc.) whereby he engaged to drill the well. With the year expired and no well drilled, Pen-O-Tex entered into a contract with the Pittsburgh Western, one of the defendants, whereby it agreed to sell and assign eighteen of its leased thirty-three sections to the latter company with an undertaking by that company to assume all the obligations of the Pen-O-Tex in the drilling contracts. This contract between Pen-O-Tex and Pittsburgh Western did not extend to their successors and assigns. On the same day, the Pittsburgh Western, with the knowledge and consent of the Pen-O-Tex, entered into a contract with the Big Four, the other defendant, whereby it agreed to sell and assign to the latter company an undivided one-half interest in the same eighteen sections “now owned” by it, and sold and transferred to the Big Four an undivided one-half interest in personal property located on the leased premises consisting of a drilling outfit, under terms whereby the latter company assumed its proportion of the obligations of the Pittsburgh Western to the Pen-O-Tex for the drilling of a well and one-half the expense thereof. The Big Four controlled the Pittsburgh Western by stock ownership. No well was completed and no rental paid in accordance with the terms of the original lease and, as a result, the leasehold interests of the plaintiff, and of the defendants, if they had any, were lost. The Pen-O-Tex then brought this suit against the Pittsburgh Western and the Big Four on the contracts of the Big Four with the Pittsburgh Western and the Pittsburgh Western with the Pen-O-Tex to recover — what? The plaintiff’s pleading answers this question by a formal demand that it “recover * * * $500,000,” but it does not clearly state the legal character of the claim. Seemingly the action is in assumpsit, recovery is based on breaches of contracts and breaches of covenants in a lease, and in both cases the demand sounds in damages. We shall discuss the questions in that light. To maintain the present action there must be either privity of contract or privity of estate between Pen-O-Tex, the plaintiff, and the Big Four, the defendant in the judgment. Mallalieu’s Estate, 42 Pa. Super. Ct. 103. The Big Four and Pen-O-Tex were not parties to any contract put in evidence. The only contract in which the Big Four was a party was the one it made with the Pittsburgh Western. Although by that contract it assumed performance of a part of the Pittsburgh Western’s obligation to the Pen-O-Tex, and, conceivably, became liable to the former company, that undertaking does not make the Big Four a party to the Pen-O-Tex-Pittsburgh Western contract so that it may be sued by the Pen-O-Tex. Goodyear Shoe Machine Co. v. Dancel (C. C. A.) 119 F. 692. The Pen-O-Tex was a stranger to the only agreement in the record made by the Big Four, and hence there is no privity of contract between the two corporations and, accordingly, no right of action on that ground arising in the plaintiff, unless, indeed, the Pittsburgh Western and the Big Four may, because of the latter’s ownership of the stock of the former, bo. regarded a corporate entity under the law of Pennsylvania Canal Co. et al. v. Brown et al. and Brown et al. v. Pennsylvania Canal Co. et al. (C. C. A.) 235 F. 669; Brown et al. v. Pennsylvania R. Co. and Pennsylvania R. Co. v. Brown et al. (C. C. A.) 250 F. 513 and kindred eases. The facts as pleaded do not establish that status. The plaintiff, however, maintains more earnestly that, as to a part of the premises, the lease, beginning with Downie to Kuykendall, ran through mesne assignees to the Big Four; that the original covenant to drill a well ran with the land to the last assignee; that there is privity of estate between the Big Four, the last assignee, and the plaintiff, an intermediate assignee then still retaining an interest in the land with the original lessor; and that, in consequence, it may maintain this action under the accepted theory, when applicable, that every successive assignee of a lease, however remote in the devolution of the leasehold title, is liable to a preceding holder on an obligation of the lease breached during their joint interest and consequent privity of estate. Washington Natural Gas Co. v. Johnson, 123 Pa. 576, 16 A. 799, 10 Am. St. Rep. 553; Knupp v. Bright, 186 Pa. 181, 40 A. 414; Hale v. Gypsy Oil Co., 113 Kan. 176, 213 P. 824; Stone v. Marshall, 188 Pa. 602, 41 A. 748, 1119. But the doctrine of covenants running with the land is based on an essential legal fact that some estate to which the covenant may attach as its vehicle or conveyance has been transferred. 11 Cyc. 1081; Flanikin v. Neal, 67 Tex. 629, 4 S. W. 212. To apply this law to the instant ease it must appear that the leased land or some interest in it was assigned by Pen-O-Tex to the Big Four. We have found no evidence of such an assignment. There was the well-drilling contract between Pen-O-Tex and Pittsburgh Western wherein the former did “agree to sell and assign” to the latter portions of the leased premises “to be selected by the president” of the Pen-O-Tex. So far as the record shows the promised assignment was never made and the reserved right of selection never exercised. Then there was the contract between the Pittsburgh Western and the Big Pour, executed the same day, whereby the Pittsburgh Western in turn did “agree to sell and assignl’ to the Big Pour a one-half interest in the premises it then “owned”; but again the record fails to show that the Pen-O-Tex ever made the assignment it promised or that it owned the premises as recited. We construe these agreements not as assignments of the lease but as agreements to assign a portion of the leasehold. To render an instrument a lease as distinguished from an agreement to lease, it must contain words importing a present demise. 18 A. & E. Enc. of Law (2d Ed.) 598. A mere agreement for a lease does not create a tenancy or give to the party with whom it is made a right of possession. Billings v. Canney, 57 Mich. 425, 24 N. W. 159. And so, an agreement merely to assign a lease is not an assignment of the lease itself, for in such an agreement no present transfer of the estate or of a lesser interest in the estate is intended or involved. In consequence such an agreement does not establish privity of estate in the parties or cause covenants of the lease to run to either of them. As the District Court was right in finding no privity of contract and no privity of estate between the parties to the suit, its judgment must be Affirmed. Question: From which district in the state was this case appealed? A. Not applicable B. Eastern C. Western D. Central E. Middle F. Southern G. Northern H. Whole state is one judicial district I. Not ascertained Answer:
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. SQUIRE, COLLECTOR OF INTERNAL REVENUE, v. CAPOEMAN et ux. No. 134. Argued January 19, 1956. Decided April 23, 1956. Charles F. Barber argued the cause for petitioner. With him on the brief were Solicitor General Sobeloff, Assistant Attorney General Holland, Hilbert P. Zarky and Carolyn R. Just. John W. Cragun argued the cause for respondents. With him on the brief were Glen A. Wilkinson and Robert W. Barker. Briefs of amici curiae urging affirmance were filed by George W. Shoemaker for the Coeur d’Alene Tribe of Indians et al., and Houston Bus Hill, Wm. C. Leahy, Wm. J. Hughes, Jr., Roy St. Lewis and Carl L. Shipley for Taunah et al. Mr. Chief Justice Warren delivered the opinion of the Court. The question presented is whether the proceeds of the sale by the United States Government of standing timber on allotted lands on the Quinaielt Indian Reservation may be made subject to capital-gains tax, consistently with applicable treaty and statutory provisions and the Government’s role as respondents’ trustee and guardian. When white men first came to the Olympic Peninsula, in what is now the State of Washington, they found the Quinaielt Tribe of Indians and their neighboring allied tribes occupying a tract of country lying between the Coast Range and the Pacific Ocean. This vast tract, with the exception of a small portion reserved for their exclusive use, was ceded by the Quinaielts and their neighbors to the United States in exchange for protection and tutelage by the treaty of July 1, 1855, and January 25, 1856, 12 Stat. 971. According to this treaty, the Quinaielts were to have exclusive use of their reservation “and no white man shall be permitted to reside thereon without permission of the tribe . . . .” Article II. Years later, Congress passed the General Allotment Act of 1887. Thereunder, Indians were to be allotted lands on their reservations not to exceed 160 acres of grazing land or 80 acres of agricultural land, and 25 years after allotment the allottees were to receive the lands discharged of the trust under which the United States had theretofore held them, and to obtain a patent “in fee, discharged of said trust and free of all charge or incumbrance whatsoever,” though the President might extend the period. Respondents, husband and wife, were born on the reservation, and are described by the Government as full-blood, noncompetent Quinaielt Indians. They have lived on the reservation all their lives with the exception of the time served by respondent husband in the Armed Forces of the United States during World War II. Pursuant to the treaty and under the General Allotment Act of 1887, respondent husband was allotted from the treaty-guaranteed reservation 93.25 acres and received a trust patent therefor dated October 1, 1907. During the tax year here in question, the fee title to this land was still held by the United States in trust for him, and was not subject to alienation or encumbrance by him, except with the consent of the United States Government, which consent had never been given. The land was forest land, covered by coniferous trees from one hundred years to several hundred years old. It was not adaptable to agricultural purposes, and was of little value after the timber was cut. In the year 1943, the Bureau of Indian Affairs of the United States Department of the Interior entered into a contract of sale for the standing timber on respondent’s allotted land for the total price of $15,080.80. The Government received the sum of $8,418.28 on behalf of respondent in that year. Upon demand of petitioner, Collector of Internal Revenue for the District of Washington, respondents filed a joint income tax return on October 10, 1947, for the tax year 1943, reporting long-term capital gain from the sale of the timber in that year. Simultaneously, they paid the taxes shown due. Thereafter, they filed a timely claim for refund of the taxes paid and contended that the proceeds from the sale of timber from the allotted land were not subject to federal income taxation because such taxation would be in violation of the provisions of the Qui-naielt Treaty, the trust patent, and the General Allotment Act. The claim for refund was denied, and this action was instituted. The District Court found that the tax had been unlawfully collected and ordered the refund. 110 F. Supp. 924. The Court of Appeals, agreeing with the District Court but recognizing a conflict between this case and the decision of the Tenth Circuit in the case of Jones v. Taunah, 186 F. 2d 445, affirmed. 220 F. 2d 349. Because of the apparent conflict, we granted certiorari. 350 U. S. 816. The Government urges us to view this case as an ordinary tax case without regard to the treaty, relevant statutes, congressional policy concerning Indians, or the guardian-ward relationship between the United States and these particular Indians. It argues: “As citizens of the United States they are taxable under the broad provisions of Sections 11 and 22 (a) of the Internal Revenue Code of 1939, which imposes a tax on the net income of every individual, derived from any source whatever. There is no exemption from tax in the Quinaielt Treaty, the General Allotment Act, the taxing statute, or in any other legislation dealing with taxpayers’ affairs. . . . “Even if it be assumed that the United States would be prohibited from imposing a direct tax on the allotted land held in trust for the taxpayers, there would, nevertheless, be no prohibition against a federal tax on the income derived from the land, since a tax on such income is not the same as a tax on the source of the income, the land.” We agree with the Government that Indians are citizens and that in ordinary affairs of life, not governed by treaties or remedial legislation, they are subject to the payment of income taxes as are other citizens. We also agree that, to be valid, exemptions to tax laws should be clearly expressed. But we cannot agree that taxability of respondents in these circumstances is unaffected by the treaty, the trust patent or the Allotment Act. The courts below held that imposition of the tax here in question is inconsistent with the Government’s promise to transfer the fee “free of all charge or incumbrance whatsoever.” Although this statutory provision is not expressly couched in terms of nontaxability, this Court has said that “Doubtful expressions are to be resolved in favor of the weak and defenseless people who are the wards of the nation, dependent upon its protection and good faith. Hence, in the words of Chief Justice Marshall, 'The language used in treaties with the Indians should never be construed to their prejudice. If words be made use of, which are susceptible of a more extended meaning than their plain import, as connected with the tenor of the treaty, they should be considered as used only in the latter sense.’ Worcester v. The State of Georgia, 6 Pet. 515, 582.” Carpenter v. Shaw, 280 U. S. 363, 367. Thus, the general words “charge or incumbrance” might well be sufficient to include taxation. But Congress, in an amendment to the General Allotment Act, gave additional force to respondents’ position. Section 6 of that Act was amended to include a proviso— “That the Secretary of the Interior may, in his discretion, and he is authorized, whenever he shall be satisfied that any Indian allottee is competent and capable of managing his or her affairs at any time to cause to be issued to such allottee a patent in fee simple, and thereafter all restrictions as to sale, in-cumbrance, or taxation of said land shall be removed and said land shall not be liable to the satisfaction of any debt contracted prior to the issuing of such patent . ...” The Government argues that this amendment was directed solely at permitting state and local taxation after a transfer in fee, but there is no indication in the legislative history of the amendment that it was to be so limited. The fact that this amendment antedated the federal income tax by 10 years also seems irrelevant. The literal language of the proviso evinces a congressional intent to subject an Indian allotment to all taxes only-after a patent in fee is issued to the allottee. This, in turn, implies that, until such time as the patent is issued, the allotment shall be free from all taxes, both those in being and those which might in the future be enacted. The first opinion of an Attorney General touching on this question seemed to construe the language of the amendment to Section 6 as exempting from the income tax income derived from restricted allotments. And even without such a clear statutory basis for exemption, a later Attorney General advised that he was— “[U]liable, by implication, to impute to Congress under the broad language of our Internal Revenue Acts an intent to impose a tax for the benefit of the Federal Government on income derived from the restricted property of these wards of the nation; property the management and control of which rests largely in the hands of officers of the Government charged by law with the responsibility and duty of protecting the interests and welfare of these dependent people. In other words, it is not lightly to be assumed that Congress intended to tax the ward for the benefit of the guardian.” Two of these opinions were published as Treasury Decisions. On the basis of these opinions and decisions, and a series of district and circuit court decisions, it was said by Felix S. Cohen, an acknowledged expert in Indian law, that “It is clear that the exemption accorded tribal and restricted Indian lands extends to the income derived directly therefrom.” These relatively contemporaneous official and unofficial writings are entitled to consideration. The Government makes much of a subsequent Attorney General’s opinion, which expressly overruled an earlier opinion, on the authority of Superintendent of Five Civilized Tribes v. Commissioner, 295 U. S. 418. That case is distinguishable from the case at hand. It involved what the Court characterized as “income derived from investment of surplus income from land,” or income on income, which Cohen termed “reinvestment income.” The purpose of the allotment system was to protect the Indians’ interest and “to prepare the Indians to take their place as independent, qualified members of the modern body politic.” Board of Commissioners v. Seber, 318 U. S. 705, 715. To this end, it is necessary to preserve the trust and income derived directly therefrom, but it is not necessary to exempt reinvestment income from tax burdens. It is noteworthy that the Superintendent case did not involve an attempt to tax the land “surplus.” The wisdom of the congressional exemption from tax embodied in Section 6 of the General Allotment Act is manifested by the facts of the instant case. Respondent’s timber constitutes the major value of his allotted land. The Government determines the conditions under which the cutting is made. Once logged off, the land is of little value. The land no longer serves the purpose for which it was by treaty set aside to his ancestors, and for which it was allotted to him. It can no longer be adequate to his needs and serve the purpose of bringing him finally to a state of competency and independence. Unless the proceeds of the timber sale are preserved for respondent, he cannot go forward when declared competent with the necessary chance of economic survival in competition with others. This chance is guaranteed by the tax exemption afforded by the General Allotment Act, and the solemn undertaking in the patent. It is unreasonable to infer that, in enacting the income tax law, Congress intended to limit or undermine the Government’s undertaking. To tax respondent under these circumstances would, in the words of the court below, be "at the least, a sorry breach of faith with these Indians.” The judgment of the Court of Appeals is Affirmed. Mr. Justice Harlan took no part in the consideration or decision of this case. 24 Stat. 388, 25 U. S. C. § 331 et seq. 25 U.S.C. §331. Id., § 348. Ibid. The trust period here involved has regularly been extended by Executive Order. See note following 25 U. S. C. § 348, and see 25 U. S. C. §462, which provides: “The existing periods of trust placed upon any Indian lands and any restriction on alienation thereof are extended and continued until otherwise directed by Congress.” The term “patent” inadequately describes respondent’s interest. “Congress . . . was careful to avoid investing the allottee with the title in the first instance, and directed that there should be issued to him what ... is in reality an allotment certificate . . . .” Monson v. Simonson, 231 U. S. 341, 345. In pertinent part, the patent provides: “Now know ye, That the United States of America, in consideration of the premises, has allotted, and by these presents does allot, unto the said Horton Capoeman, the land above described, and hereby declares that it does and will hold the land thus allotted (subject to all statutory provisions and restrictions) for the period of twenty-five years, in trust for the sole use and benefit of the said Indian, and that at the expiration of said period the United States will convey the same by patent to said Indian, in fee, discharged of said trust and free of all charge or incumbrance whatsoever, . . . .” This sale seems to have followed a pattern generally adopted by the Government in selling timber from Indian allotments. Huge areas of forest are put up for competitive bids by lumber companies. These tracts include the tribal forest lands and individual allotments, with the consent of tribal councils and individual allottees. The successful bidder is required to make an immediate advance payment of a large proportion of the estimated value of the lumber in the tract. Since as much as 640 million board feet have been sold at one time, this requirement makes it economically infeasible for any but the largest companies to submit bids. The uncertainties of such large scale operations, which are to be carried on over 25- or 30-year periods, coupled with local quality and accessibility variables, has resulted in substantially lower than prevailing market bids. In some instances, the return to other sellers of comparable timber was two or three times that received by the Indians. See Transcript of November 28, 1955, Joint Hearing of Subcommittee on Legislative Oversight Function of the Senate Committee on Interior and Insular Affairs and of Subcommittee on Public Works and Resources of the House Committee on Government Operations, 2151-2217, and passim. Brief for Petitioner, pp. 7-8. 25 U. S. C. § 349. See S. Rep. No. 1998, 59th Cong., 1st Sess.; H. R. Rep. No. 1558, 59th Cong., 1st Sess. This provision was relied upon by Chief Judge Phillips, dissenting in Jones v. Taunah, 186 F. 2d 445, 449. 34 Op. Atty. Gen. 275, 281 (1924). And see id., 302 (1924). Id., 439, 445 (1925). This ruling was followed in 35 Op. Atty. Gen. 1 (1925). And cf. id., 107 (1926). T. D. 3570, III-1 Cum. Bull. 85 (1924); T. D. 3754, IV-2 Cum. Bull. 37 (1925). Cohen, Handbook of Federal Indian Law, 265. He distinguished cases permitting the imposition of income taxes upon income derived from unrestricted lands, and upon reinvestment income. Id., at 265-266. Mr. Cohen was Chairman of the Department of Interior Board of Appeals, and Assistant Solicitor of the Department. The Handbook has a foreword by Harold L. Ickes, then Secretary of the Interior, and was printed by the United States Government Printing Office. 39 Op. Atty. Gen. 107 (1937). 34 id., 439. 295 U. S., at 421. The Government also relies upon Choteau v. Burnet, 283 U. S. 691, but that case also is not controlling, since it held only that a competent Indian, who had unrestricted control over lands and income therefrom, was not exempt from income tax solely because of his status as an Indian. Such a tax is specifically authorized by Section 6 of the General Allotment Act. See United States v. Eastman, 118 F. 2d 421. See 220 F. 2d, at 350. In its answer filed in the District Court, the Government admitted that the lands "are generally unsuitable for agricultural purposes . . . .” R. 31. 220 F. 2d 350. Question: Was the case heard by a three-judge federal district court? A. Yes B. No Answer:
sc_respondentstate	17	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. JAMES v. ILLINOIS No. 88-6075. Argued October 3, 1989 Decided January 10, 1990 Brennan, J., delivered the opinion of the Court, in which White, Marshall, Blackmun, and Stevens, JJ., joined.- Stevens, J., filed a concurring opinion, post, p. 320. Kennedy, J., filed a dissenting opinion, in which Rehnquist, C. J., and O’Connor and Scalia, JJ., joined, post, p. 322. Martin S. Carlson argued the cause for petitioner. With him on the briefs were Theodore A. Gottfried, Michael J. Pelletier, and Patricia Unsinn. Terence M. Madsen, Assistant Attorney General of Illinois, argued the cause for respondent. With him on the brief were Neil F. Hartigan, Attorney General, Robert J. Ruiz, Solicitor General, Arleen C. Anderson, Nathan P. Maddox, and Michael J. Singer, Assistant Attorneys General, Cecil A. Partee, Inge Fryklund, and Sharon Johnson Coleman. Solicitor General Starr, Assistant Attorney General Dennis, Deputy Solicitor General Bryson, and Joel Gershowitz filed a brief for the United States as amicus curiae urging affirmance. Justice Brennan delivered the opinion of the Court. The impeachment exception to the exclusionary rule permits the prosecution in a criminal proceeding to introduce illegally obtained evidence to impeach the defendant’s own testimony. The Illinois Supreme Court extended this exception to permit the prosecution to impeach the testimony of all defense witnesses with illegally obtained evidence. 123 Ill. 2d 523, 528 N. E. 2d 723 (1988). Finding this extension inconsistent with the balance of values underlying our previous applications of the exclusionary rule, we reverse. H-l On the night of August 30, 1982, eight young boys returning home from a party were confronted by a trio of other boys who demanded money. When the eight boys refused to comply, one member of the trio produced a gun and fired into the larger group, killing one boy and seriously injuring another. When the police arrived, the remaining members of the larger group provided eyewitness accounts of the event and descriptions of the perpetrators. The next evening, two detectives of the Chicago Police Department took 15-year-old Darryl James into custody as a suspect in the shooting. James was found at his mother’s beauty parlor sitting under a hair dryer; when he emerged, his hair was black and curly. After placing James in their car, the detectives questioned him about his prior hair color. He responded that the previous day his hair had been reddish brown, long, and combed straight back. The detectives questioned James again later at the police station, and he further stated that he had gone to the beauty parlor in order to have his hair “dyed black and curled in order to change his appearance.” App. 11. The State subsequently indicted James for murder and attempted murder. Prior to trial, James moved to suppress the statements regarding his hair, contending that they were the fruit of a Fourth Amendment violation because the detectives lacked probable cause for his warrantless arrest. After an evidentiary hearing, the trial court sustained this motion and ruled that the statements would be inadmissible at trial. At trial, five members of the larger group of boys testified for the State, and each made an in-court identification of the defendant. Each testified that the person responsible for the shooting had “reddish” hair, worn shoulder length in a slicked-back “butter” style. Each also recalled having seen James several weeks earlier at a parade, at which time James had the aforementioned hair color and style. At trial, however, his hair was black and worn in a “natural” style. Despite the discrepancy between the witnesses’ description and his present appearance, the witnesses stood firm in their conviction that James had been present and had fired the shots. James did not testify in his own defense. He called as a witness Jewel Henderson, a friend of his family. Henderson testified that on the day of the shooting she had taken James to register for high school and that, at that time, his hair was black. The State then sought, over James’ objection, to introduce his illegally obtained statements as a means of impeaching the credibility of Henderson’s testimony. After determining that the suppressed statements had been made voluntarily, the trial court overruled James’ objection. One of the interrogating detectives then reported James’ prior admissions that he had reddish hair the night of the shooting and he dyed and curled his hair the next day in order to change his appearance. James ultimately was convicted of both murder and attempted murder and sentenced to 30 years’ imprisonment. On appeal, the Illinois Appellate Court reversed James’ convictions and ordered a new trial. 153 Ill. App. 3d 131, 505 N. E. 2d 1118 (1987). The appellate court held that the exclusionary rule barred admission of James’ illegally obtained statements for the purpose of impeaching a defense witness’ testimony and that the resulting constitutional error was not harmless. However, the Illinois Supreme Court reversed. The court reasoned that, in order to deter the defendant from engaging in perjury “by proxy,” the impeachment exception to the exclusionary rule ought to be expanded to allow the State to introduce illegally obtained evidence to impeach the testimony of defense witnesses other than the defendant himself. The court therefore ordered James’ convictions reinstated. We granted certiorari. 489 U. S. 1010 (1989). II “There is no gainsaying that arriving at the truth is a fundamental goal of our legal system.” United States v. Havens, 446 U. S. 620, 626 (1980). But various constitutional rules limit the means by which government may conduct this search for truth in order to promote other values embraced by the Framers and cherished throughout our Nation’s history. “Ever since its inception, the rule excluding evidence seized in violation of the Fourth Amendment has been recognized as a principal mode of discouraging lawless police conduct. . . . [WJithout it the constitutional guarantee against unreasonable searches and seizures would be a mere ‘form of words.’” Terry v. Ohio, 392 U. S. 1, 12 (1968), quoting Mapp v. Ohio, 367 U. S. 643, 655 (1961). The occasional suppression of illegally obtained yet probative evidence has long been considered a necessary cost of preserving overriding constitutional values: “[T]here is nothing new in the realization that the Constitution sometimes insulates the criminality of a few in order to protect the privacy of us all.” Arizona v. Hicks, 480 U. S. 321, 329 (1987). This Court has carved out exceptions to the exclusionary rule, however, where the introduction of reliable and probative evidence would significantly further the truth-seeking function of a criminal trial and the likelihood that admissibility of such evidence would encourage police misconduct is but a “speculative possibility.” Harris v. New York, 401 U. S. 222, 225 (1971). One exception to the rule permits prosecutors to introduce illegally obtained evidence for the limited purpose of impeaching the credibility of the defendant’s own testimony. This Court first recognized this exception in Walder v. United States, 347 U. S. 62 (1954), permitting the prosecutor to introduce into evidence heroin obtained through an illegal search to undermine the credibility of the defendant’s claim that he had never possessed narcotics. The Court explained that a defendant “must be free to deny all the elements of the case against him without thereby giving leave to the Government to introduce by way of rebuttal evidence illegally secured by it, and therefore not available for its case in chief. Beyond that, however, there is hardly justification for letting the defendant affirmatively resort to perjurious testimony in reliance on the Government’s disability to challenge his credibility.” Id., at 65. In Harris v. New York, supra, and Oregon v. Hass, 420 U. S. 714 (1975), the Court applied the exception to permit prosecutors to impeach defendants using incriminating yet voluntary and reliable statements elicited in violation of Miranda requirements. Finally, in United States v. Havens, supra, the Court expanded the exception to permit prosecutors to introduce illegally obtained evidence in order to impeach a defendant’s “answers to questions put to him on cross-examination that are plainly within the scope of the defendant’s direct examination.” Id., at 627. This Court insisted throughout this line of cases that “evidence that has been illegally obtained ... is inadmissible on the government’s direct case, or otherwise, as substantive evidence of guilt.” Id., at 628. However, because the Court believed that permitting the use of such evidence to impeach defendants’ testimony would further the goal of truthseeking by preventing defendants from perverting the exclusionary rule “ ‘into a license to use perjury by way of a defense,”’ id., at 626 (citation omitted), and because the Court further believed that permitting such use would create only a “speculative possibility that impermissible police conduct will be encouraged thereby,” Harris, supra, at 225, the Court concluded that the balance of values underlying the exclusionary rule justified an exception covering impeachment of defendants’ testimony. Ill In this case, the Illinois Supreme Court held that our balancing approach in Walder and its progeny justifies expanding the scope of the impeachment exception to permit prosecutors to use illegally obtained evidence to impeach the credibility of defense witnesses. We disagree. Expanding the class of impeachable witnesses from the defendant alone to all defense witnesses would create different incentives affecting the behavior of both defendants and law enforcement officers. As a result, this expansion would not promote the truth-seeking function to the same extent as did creation of the original exception, and yet it would significantly undermine the deterrent effect of the general exclusionary rule. Hence, we believe that this proposed expansion would frustrate rather than further the purposes underlying the exclusionary rule. The previously recognized exception penalizes defendants for committing perjury by allowing the prosecution to expose their perjury through impeachment using illegally obtained evidence. Thus defendants are discouraged in the first instance from “affirmatively resort[ing] to perjurious testimony.” Walder, supra, at 65. But the exception leaves defendants free to testify truthfully on their own behalf; they can offer probative and exculpatory evidence to the jury without opening the door to impeachment by carefully avoiding any statements that directly contradict the suppressed evidence. The exception thus generally discourages perjured testimony without discouraging truthful testimony. In contrast, expanding the impeachment exception to encompass the testimony of all defense witnesses would not have the same beneficial effects. First, the mere threat of a subsequent criminal prosecution for perjury is far more likely to deter a witness from intentionally lying on a defendant’s behalf than to deter a defendant, already facing conviction for the underlying offense, from lying on his own behalf. Hence the Illinois Supreme Court’s underlying premise that a defendant frustrated by our previous impeachment exception can easily find a witness to engage in “perjury by proxy” is suspect. More significantly, expanding the impeachment exception to encompass the testimony of all defense witnesses likely would chill some defendants from presenting their best defense — and sometimes any defense at all — through the testimony of others. Whenever police obtained evidence illegally, defendants would have to assess prior to trial the likelihood that the evidence would be admitted to impeach the otherwise favorable testimony of any witness they call. Defendants might reasonably fear that one or more of their witnesses, in a position to offer truthful and favorable testimony, would also make some statement in sufficient tension with the tainted evidence to allow the prosecutor to introduce that evidence for impeachment. First, defendants sometimes need to call “reluctant” or “hostile” witnesses to provide reliable and probative exculpatory testimony, and such witnesses likely will not share the defendants’ concern for avoiding statements that invite impeachment through contradictory evidence. Moreover, defendants often cannot trust even “friendly” witnesses to testify without subjecting themselves to impeachment, simply due to insufficient care or attentiveness. This concern is magnified in those occasional situations when defendants must call witnesses to testify despite having had only a limited opportunity to consult with or prepare them in advance. For these reasons, we have recognized in a variety of contexts that a party “cannot be absolutely certain that his witnesses will testify as expected.” Brooks v. Tennessee, 406 U. S. 605, 609 (1972). As a re-suit, an expanded impeachment exception likely would chill some defendants from calling witnesses who would otherwise offer probative evidence. This realization alters the balance of values underlying the current impeachment exception governing defendants’ testimony. Our prior cases make clear that defendants ought not be able to “pervert” the exclusion of illegally obtained evidence into a shield for perjury, but it seems no more appropriate for the State to brandish such evidence as a sword with which to dissuade defendants from presenting a meaningful defense through other witnesses. Given the potential chill created by expanding the impeachment exception, the conceded gains to the truth-seeking process from discouraging or disclosing perjured testimony would be offset to some extent by the concomitant loss of probative witness testimony. Thus, the truth-seeking rationale supporting the impeachment of defendants in Walder and its progeny does not apply to other witnesses with equal force. Moreover, the proposed expansion of the current impeachment exception would significantly weaken the exclusionary rule’s deterrent effect on police misconduct. This Court has characterized as a mere “speculative possibility,” Harris v. New York, 401 U. S., at 225, the likelihood that permitting prosecutors to impeach defendants with illegally obtained evidence would encourage police misconduct. Law enforcement officers will think it unlikely that the defendant will first decide to testify at trial and will also open the door inadvertently to admission of any illegally obtained evidence. Hence, the officers’ incentive to acquire evidence through illegal means is quite weak. In contrast, expanding the impeachment exception to all defense witnesses would significantly enhance the expected value to the prosecution of illegally obtained evidence. First, this expansion would vastly increase the number of occasions on which such evidence could be used. Defense witnesses easily outnumber testifying defendants, both because many defendants do not testify themselves and because many if not most defendants call multiple witnesses on their behalf. Moreover, due to the chilling effect identified above, see supra, at 315-316, illegally obtained evidence holds even greater value to the prosecution for each individual witness than for each defendant. The prosecutor’s access to impeachment evidence would not just deter perjury; it would also deter defendants from calling witnesses in the first place, thereby keeping from the jury much probative exculpatory evidence. For both of these reasons, police officers and their superiors would recognize that obtaining evidence through illegal means stacks the deck heavily in the prosecution’s favor. It is thus far more than a “speculative possibility” that police misconduct will be encouraged by permitting such use of illegally obtained evidence. The United States argues that this result is constitutionally acceptable because excluding illegally obtained evidence solely from the prosecution’s case in chief would still provide a quantum of deterrence sufficient to protect the privacy interests underlying the exclusionary rule. We disagree. Of course, a police officer might in certain situations believe that obtaining particular evidence through illegal means, re-suiting in,its suppression from the case in chief, would prevent the prosecution from establishing a prima facie case to take to a jury. In such situations, the officer likely would be deterred from obtaining the evidence illegally for fear of jeopardizing the entire case. But much if not most of the time, police officers confront opportunities to obtain evidence illegally after they have already legally obtained (or know that they have other means of legally obtaining) sufficient evidence to sustain a prima facie case. In these situations, a rule requiring exclusion of illegally obtained evidence from only the government’s case in chief would leave officers with little to lose and much to gain by overstepping constitutional limits on evidence gathering. Narrowing the exclusionary rule in this manner, therefore, would significantly undermine the rule’s ability “to compel respect for the constitutional guaranty in the only effectively available way — by removing the incentive to disregard it.” Elkins v. United States, 364 U. S. 206, 217 (1960). So long as we are committed to protecting the people from the disregard of their constitutional rights during the course of criminal investigations, inadmissibility of illegally obtained evidence must remain the rule, not the exception. IV The cost to the truth-seeking process of evidentiary exclusion invariably is perceived more tangibly in discrete prosecutions than is the protection of privacy values through deterrence of future police misconduct. When defining the precise scope of the exclusionary rule, however, we must focus on systemic effects of proposed exceptions to ensure that individual liberty from arbitrary or oppressive police conduct does not succumb to the inexorable pressure to introduce all incriminating evidence, no matter how obtained, in each and every criminal case. Our previous recognition of an impeachment exception limited to the testimony of defendants reflects a careful weighing of the competing values. Because expanding the exception to encompass the testimony of all defense witnesses would not further the truth-seeking value with equal force but would appreciably undermine the deterrent effect of the exclusionary rule, we adhere to the line drawn in our previous cases. Accordingly, we hold that the Illinois Supreme Court erred in affirming James’ convictions despite the prosecutor’s use of illegally obtained statements to impeach a defense witness’ testimony. The court’s judgment is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. See generally Illinois v. Krull, 480 U. S. 340, 347 (1987) (when evaluating proposed exceptions to the exclusionary rule, this Court “has examined whether the rule’s deterrent effect will be achieved, and has weighed the likelihood of such deterrence against the costs of withholding reliable information from the truth-seeking process”); United States v. Leon, 468 U. S. 897, 908-913 (1984) (discussing balancing approach). Certain Members of the Court have previously expressed their view that the exclusionary rule is designed not merely to deter police misconduct but also to prevent courts from becoming parties to the constitutional violation by admitting illegally obtained evidence at trial. See United States v. Leon, 468 U. S., at 931-938 (Brennan, J., joined by Marshall, J., dissenting); id., at 976-978 (Stevens, J., concurring in judgment in part and dissenting in part). See Miranda v. Arizona, 384 U. S. 436 (1966). See also Oregon v. Hass, 420 U. S. 714, 721 (1975) (“[TJrial court instructed the jury that the statements attributed to [defendant] could be used only in passing on his credibility and not as evidence of guilt”); Hands v. New York, 401 U. S. 222, 223 (1971) (same); Walder v. United States, 347 U. S. 62, 64 (1954) (same). The dissent concedes, as it must, that “of course, false testimony can result from faulty recollection” as opposed to intentional lying. Post, at 326. Even assuming that Henderson’s testimony in this case (as opposed to the detective’s contrary testimony) was indeed false, nothing in the record suggests that Henderson intentionally committed perjury rather than honestly provided her best (even if erroneous) perception and recollection of events. These reasons to doubt a party’s ability to control the testimony of his own witnesses led long ago to abandonment of the common-law rule that a party automatically “vouches for” and hence is inexorably bound by what the witnesses say. See, e. g., Fed. Rule Evid. 607 (“The credibility of a witness may be attacked by any party, including the party calling him”); see generally 3A J. Wigmore, Evidence § 899, p. 655 (J. Chadbourn rev. 1970) (“[E]very experienced lawyer knows that he is often required to call witnesses who happen to have some knowledge of the facts but whose trustworthiness he could not guarantee. There are also many occasions upon which a lawyer is surprised by the witness testifying in direct contradiction to a prior statement given to the attorney” (citation omitted)); cf. Chambers v. Mississippi, 410 U. S. 284 (1973) (state evidentiary rule precluding defendant from impeaching own witness after witness offered incriminating testimony violated due process). See also Imbler v. Pachtman, 424 U. S. 409, 426 (1976) (holding prosecutors absolutely immune from damages liability for having knowingly presented perjured witness testimony against criminal defendants, observing that the “veracity of witnesses in criminal cases frequently is subject to doubt before and after they testify .... If prosecutors were hampered in exercising their judgment as to the use of such witnesses by concern about resulting personal liability, [they often would refrain from calling such witnesses and hence] the triers of fact in criminal cases often would be denied relevant evidence”); id., at 446 (White, J., concurring in judgment) (“[0]ne of the effects of permitting suits for knowing use of perjured testimony will be detrimental to the [truth-seeking] process —prosecutors may withhold questionable but valuable testimony from the court”). Apparently to minimize this concern, the Illinois Supreme Court suggested that prosecutors could impeach witnesses only with respect to statements that are “purposely presented by the defendant.” 123 Ill. 2d 523, 537, 528 N. E. 2d 723, 729 (1988). However, the court did not even purport to determine whether James had “purposely presented” Henderson’s testimony that his hair had been black on the day of the shooting, an omission that clearly highlights “the difficulty of determining whether particular testimony elicited from a defense witness was ‘purposely presented’ by the defendant.” Brief for United States as Amicus Curiae 21, n. 5. Given the inherent subjectivity of this proposed test, a defendant could hardly be confident that all witness statements that are actually inadvertent or surprising to the defendant will be found to be such by the trial court so as not to open the door to impeachment. This proposed limitation thus would not meaningfully blunt the chill imposed on defendants’ presentation of witnesses. The Illinois Supreme Court also suggested that prosecutors could be allowed to impeach witnesses only with respect to statements offered on direct examination, perhaps recognizing that defendants likely would feel even more insecure about their witnesses’ ability to avoid statements triggering admissibility of suppressed evidence when responding to cross-examination by the prosecutor. We need not decide whether there is a salient distinction between direct and cross-examination in this context, cf. United States v. Havens, 446 U. S. 620 (1980) (rejecting such distinction with respect to defendants’ testimony), because even the more limited expansion of the impeachment exception would palpably inhibit defendants’ presentation of a defense. Finally, the dissent embraces the Illinois Supreme Court’s suggestion that prosecutors could be allowed to impeach witnesses only when their testimony is in “direct conflict” with the illegally seized evidence. Post, at 325. The dissent suggests that judicial inquiry as to the inconsistency of various statements is “commonplace” under various rules of evidence. Post, at 325, n. 1. But the result of such an inquiry distinguishing between “direct” and “indirect” evidentiary conflicts is far from predictable. Indeed, the authority upon which the dissent relies to define a direct evi-dentiary conflict observes that “[s]uch is the possible variety of statement that it is often difficult to determine whether this inconsistency exists.” 3A Wigmore § 1040, at 1048. The ex ante uncertainty whether a court might find a witness’ testimony to pose a “direct” conflict and therefore trigger the impeachment exception likely will chill defendants’ presentation of potential witnesses in many cases. Brief for United States as Amicus Curiae 18-22. Indeed, the detectives who unlawfully detained James and elicited his incriminating statements already knew that there were several eyewitnesses to the shooting. Because the detectives likely believed that the exclusion of any statement they obtained from James probably would not have precluded the prosecution from making a prima facie case, an exclusionary rule applicable only to the prosecution’s case in chief likely would have provided little deterrent effect in this case. Question: What state is associated with the respondent? 01. Alabama 02. Alaska 03. American Samoa 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. District of Columbia 11. Federated States of Micronesia 12. Florida 13. Georgia 14. Guam 15. Hawaii 16. Idaho 17. Illinois 18. Indiana 19. Iowa 20. Kansas 21. Kentucky 22. Louisiana 23. Maine 24. Marshall Islands 25. Maryland 26. Massachusetts 27. Michigan 28. Minnesota 29. Mississippi 30. Missouri 31. Montana 32. Nebraska 33. Nevada 34. New Hampshire 35. New Jersey 36. New Mexico 37. New York 38. North Carolina 39. North Dakota 40. Northern Mariana Islands 41. Ohio 42. Oklahoma 43. Oregon 44. Palau 45. Pennsylvania 46. Puerto Rico 47. Rhode Island 48. South Carolina 49. South Dakota 50. Tennessee 51. Texas 52. Utah 53. Vermont 54. Virgin Islands 55. Virginia 56. Washington 57. West Virginia 58. Wisconsin 59. Wyoming 60. United States 61. Interstate Compact 62. Philippines 63. Indian 64. Dakota Answer:
sc_decisiondirection	B	What follows is an opinion from the Supreme Court of the United States. Your task is to determine the ideological "direction" of the decision ("liberal", "conservative", or "unspecifiable"). Use "unspecifiable" if the issue does not lend itself to a liberal or conservative description (e.g., a boundary dispute between two states, real property, wills and estates), or because no convention exists as to which is the liberal side and which is the conservative side (e.g., the legislative veto). Specification of the ideological direction comports with conventional usage. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. In interstate relations and private law issues, consider unspecifiable in all cases. REWIS et al. v. UNITED STATES No. 5342. Argued January 19, 1971 Decided April 5, 1971 Marshall, J., delivered the opinion of the Court, in which all members joined except White, J., who took no part in the decision of the case. Albert J. Datz argued the cause and filed briefs for petitioners. Sidney M. Olazer argued the cause for the United States. With him on the brief were Solicitor General Griswold, Assistant Attorney General Wilson, Beatrice Rosenberg, and Michael G. Kelly. Mr. Justice Marshall delivered the opinion of the Court. In this case, petitioners challenge their convictions under the Travel Act, 18 U. S. C. § 1952, which prohibits interstate travel in furtherance of certain criminal activity. Although the United States Court of Appeals for the Fifth Circuit narrowed an expansive interpretation of the Act, the Court of Appeals affirmed petitioners’ convictions. For the reasons stated below, we reverse. Petitioners, James Rewis and Mary Lee Williams, were convicted along with two other defendants in the United States District Court for the Middle District of Florida. Their convictions arose from a lottery, or numbers operation, which petitioners admittedly ran in Yulee, Florida, a small community located a few miles south of the Georgia-Florida state line. Petitioners are Florida residents, and there is no evidence that they at any time crossed state lines in connection with the operation of their lottery. The other two convicted defendants are Georgia residents who traveled from their Georgia homes to place bets at petitioners’ establishment in Yulee. The District Court instructed the jury that mere bettors in a lottery violated Florida law, and that if the bettors traveled interstate for the purpose of gambling, they also violated the Travel Act. Presumably referring to petitioners, the District Court further charged that a defendant could be found guilty under the aiding and abetting statute, 18 U. S. C. § 2, without proof that he personally performed every act constituting the charged offense. On appeal, the Fifth Circuit held that § 1952 did not make it a federal crime merely to cross a state line for the purpose of placing a bet and reversed the convictions of the two Georgia residents because the evidence presented at trial was insufficient to show that they were anything other than customers of the gambling operation. However, the Court of Appeals upheld petitioners’ convictions on the ground that operators of gambling establishments are responsible for the interstate travel of their customers. 418 F. 2d 1218, 1222. We agree with the Court of Appeals that it cannot be said, with certainty sufficient to justify a criminal conviction, that Congress intended that interstate travel by mere customers of a gambling establishment should violate the Travel Act. But we are unable to conclude that conducting a gambling operation frequented by out-of-state bettors, by itself, violates the Act. Section 1952 prohibits interstate travel with the intent to “promote, manage, establish, carry on, or facilitate” certain kinds of illegal activity; and the ordinary meaning of this language suggests that the traveler’s purpose must involve more than the desire to patronize the illegal activity. Legislative history of the Act is limited, but does reveal that § 1952 was aimed primarily at organized crime and, more specifically, at persons who reside in one State while operating or managing illegal activities located in another. In addition, we are struck by what Congress did not say. Given the ease with which citizens of our Nation are able to travel and the existence of many multi-state metropolitan areas, substantial amounts of criminal activity, traditionally subject to state regulation, are patronized by out-of-state customers. In such a context, Congress would certainly recognize that an expansive Travel Act would alter sensitive federal-state relationships, could overextend limited federal police resources, and might well produce situations in which the geographic origin of customers, a matter of happenstance, would transform relatively minor state offenses into federal felonies. It is not for us to weigh the merits of these factors, but the fact that they are not even discussed in the legislative history of § 1952 strongly suggests that Congress did not intend that the Travel Act should apply to criminal activity solely because that activity is at times patronized by persons from another State. In short, neither statutory language nor legislative history supports such a broad-ranging interpretation of § 1952. And even if this lack of support were less apparent, ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity, Bell v. United States, 349 U. S. 81, 83 (1955). The Government concedes as much, but offers an alternative construction of the Travel Act — that the Act is violated whenever the operator of an illegal establishment can reasonably foresee that customers will cross state lines for the purpose of patronizing the illegal operation or whenever the operator actively seeks to attract business from another State. The first half of this proposed interpretation — reasonable foreseeability of interstate patronage — does not merit acceptance. Whenever individuals actually cross state fines for the purpose of patronizing a criminal establishment, it will almost always be reasonable to say that the operators of the establishment could have foreseen that some of their customers would come from out of State. So, for practical purposes, this alternative construction is almost as expansive as interpretations that we have already rejected. In addition, there is little, if any, evidence that Congress intended that foreseeability should govern criminal liability under § 1952. There may, however, be greater support for the second half of the Government’s proposed interpretation — that active encouragement of interstate patronage violates the Act. Of course, the conduct deemed to constitute active encouragement must be more than merely conducting the illegal operation; otherwise, this interpretation would only restate other constructions which we have rejected. Still, there are cases in which federal courts have correctly applied § 1952 to those individuals whose agents or employees cross state fines in furtherance of illegal activity, see, e. g., United States v. Chambers, 382 F. 2d 910, 913-914 (CA6 1967); United States v. Barrow, 363 F. 2d 62, 64-65 (CA3 1966), cert. denied, 385 U. S. 1001 (1967); United States v. Zizzo, 338 F. 2d 577, 580 (CA7 1964), cert. denied, 381 U. S. 915 (1965), and the Government argues that the principles of those decisions should be extended to cover persons who actively seek interstate patronage. Although we are cited to no cases that have gone so far and although much of what we have said casts substantial doubt on the Government’s broad argument, there may be occasional situations in which the conduct encouraging interstate patronage so closely approximates the conduct of a principal in a criminal agency relationship that the Travel Act is violated. But we need not rule on this part of the Government’s theory because it is not the interpretation of § 1952 under which petitioners were convicted. The jury was not charged that it must find that petitioners actively sought interstate patronage. And we are not informed of any action by petitioners, other than actually conducting their lottery, that was designed to attract out-of-state customers. As a result, the Government’s proposed interpretation. of the Travel Act cannot be employed to uphold these convictions. Reversed. Mr. Justice White took no part in the decision of this case. Title 18 U. S. C. § 1952 (1964 ed. and Supp. V) provides: “(a) Whoever travels in interstate or foreign commerce or uses any facility in interstate or foreign commerce, including the mail, with intent to— “(1) distribute the proceeds of any unlawful activity; or “(2) commit any crime of violence to further any unlawful activity; or “(3) otherwise promote, manage, establish, carry on, or facilitate the promotion, management, establishment, or carrying on, of any unlawful activity, “and thereafter performs or attempts to perform any of the acts specified in subparagraphs (1), (2), and (3), shall be fined not more than $10,000 or imprisoned for not more than five years, or both. “(b) As used in this section ‘unlawful activity’ means (1) any business enterprise involving gambling, liquor on which the Federal ■excise tax has not been paid, narcotics, or prostitution offenses in violation of the laws of the State in which they are committed or of the United States, or (2) extortion, bribery, or arson in violation of the laws of the State in which committed or of the United States.” Petitioners were convicted of eight substantive -violations under § 1952 and of conspiracy to violate the section. Petitioner Rewis was sentenced to five years’ imprisonment on each count, to run concurrently. Petitioner Williams was sentenced to three years’ imprisonment on each count, to run concurrently, subject to parole under 18 U. S. C. §4208 (a) (2). Petitioner Rewis was also convicted of two counts of having failed to purchase a wagering tax stamp. These latter two convictions were reversed by the Court of Appeals under the intervening decisions of this Court in Marchetti v. United States, 390 U. S. 39 (1968), and Grosso v. United States, 390 U. S. 62 (1968). 18 U. S. C. § 2 provides: “(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal. “(b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.” 418 F. 2d 1218. The Government has not sought review of that part of the Court of Appeals decision reversing the conviction of the two Georgia residents. Both parties correctly concede that the questions in this case are solely statutory. No issue of constitutional dimension is presented. Incorporated in the Senate report (S. Rep. No. 644, 87th Cong., 1st Sess., 2-3, dated July 27, 1961) the following appears: “The bill, S. 1653, was introduced by the chairman of the committee, Senator James O. Eastland, on April 18, 1961, on the recommendation of the Attorney General, Robert F. Kennedy, as a part of the Attorney General’s legislative program to combat organized crime and racketeering. “The Attorney General testified before the committee in support of the bill, S. 1653, on June 6, 1961, and commented: “ 'We are seeking to take effective action against the racketeer who conducts an unlawful business but lives far from the scene in comfort and safety, as well as against other hoodlums. “ ‘Let me say from the outset that we do not seek or intend to impede the travel of anyone except persons engaged in illegal businesses as spelled out in the bill. . . . “ ‘The target clearly is organized crime. The travel that would be banned is travel “in furtherance of a business enterprise” which involves gambling, liquor, narcotics, and prostitution offenses or extortion or bribery. Obviously, we are not trying to curtail the sporadic, casual involvement in these offenses, but rather a continuous course of conduct sufficient for it to be termed a business enterprise.’ “ ‘Our investigations also have made it quite clear that only the Federal Government can shut off the funds which permit the top men of organized crime to live far from the scene and, therefore, remain immune from the local officials.’ ” Question: What is the ideological direction of the decision? A. Conservative B. Liberal C. Unspeciﬁable Answer:
sc_casesource	021	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. TASHJIAN, SECRETARY OF STATE OF CONNECTICUT v. REPUBLICAN PARTY OF CONNECTICUT et al. No. 85-766. Argued October 8, 1986 Decided December 10, 1986 MARSHALL, J., delivered the opinion of the Court, in which BRENNAN, White, Blackmun, and Powell, JJ., joined. Stevens, J., filed a dissenting opinion, in which Scalia, J., joined, post, p. 230. Scalia, J., filed a dissenting opinion, in which Rehnquist, C. J., and O’Connoe, J., joined, post, p. 234. Elliot F. Gerson, Special Assistant Attorney General of Connecticut, argued the cause for appellant. With him on the briefs were Joseph I. Lieberman, Attorney General, and Barney Lapp, Daniel R. Schaefer, and Henry S. Cohn, Assistant Attorneys General. David S. Golub argued the cause and filed a brief for appellees. Briefs of amici curiae urging reversal were filed for the State of New York et al. by Robert Abrams, Attorney General of New York, Robert Hermann, Solicitor General, Patrick Barnett-Mulligan, Lisa Margaret Smith, and Betsy Broder, Assistant Attorneys General, Charles A. Graddick, Attorney General of Alabama, Robert K. Corbin, Attorney General of Arizona, and Anthony B. Ching, Solicitor General, Charles M. Oberly III, Attorney General of Delaware, Jim Smith, Attorney General of Florida, Neil F. Hartigan, Attorney General of Illinois, and Roma J. Stewart, Solicitor General, William J. Guste, Jr., Attorney General of Louisiana, James E. Tierney, Attorney General of Maine, and Cabanne Howard, Deputy Attorney General, Brian McKay, Attorney General of Nevada, Lacy H. Thornburg, Attorney General of North Carolina, Nicholas J. Spaeth, Attorney General of North Dakota, Anthony J. Celebrezze, Jr., Attorney General of Ohio, Michael Turpén, Attorney General of Oklahoma, LeRoy S. Zimmerman, Attorney General of Pennsylvania, W. J. Michael Cody, Attorney General of Tennessee, and A. G. McClintock, Attorney General of Wyoming; and for William J. Cibes, Jr., et al. by Timothy D. Bates. Stephen E. Gottlieb filed a brief for James MacGregor Burns et al. as amici curiae urging affirmance. Bruce A. Morrison, pro se, filed a brief for Senator Christopher J. Dodd et al. as amici curiae. Justice Marshall delivered the opinion of the Court. Appellee Republican Party of the State of Connecticut (Party) in 1984 adopted a Party rule which permits independent voters — registered voters not affiliated with any political party — to vote in Republican primaries for federal and statewide offices. Appellant Julia Tashjian, the Secretary of the State of Connecticut, is charged with the administration of the State’s election statutes, which include a provision requiring voters in any party primary to be registered members of that party. Conn. Gen. Stat. §9-431 (1985). Appellees, who in addition to the Party include the Party’s federal officeholders and the Party’s state chairman, challenged this eligibility provision on the ground that it deprives the Party of its First Amendment right to enter into political association with individuals of its own choosing. The District Court granted summary judgment in favor of appellees. 599 F. Supp. 1228 (Conn. 1984). The Court of Appeals affirmed. 770 F. 2d 265 (CA2 1985). We noted probable jurisdiction, 474 U. S. 1049 (1986), and now affirm. I — I In 1955, Connecticut adopted its present primary election system. For major parties, the process of candidate selection for federal and statewide offices requires a statewide convention of party delegates; district conventions are held to select candidates for seats in the state legislature. The party convention may certify as the party-endorsed candidate any person receiving more than 20% of the votes cast in a roll-call vote at the convention. Any candidate not endorsed by the party who received 20% of the vote may challenge the party-endorsed candidate in a primary election, in which the candidate receiving the plurality of votes becomes the party’s nominee. Conn. Gen. Stat. §§9-382, 9-400, 9-444 (1985). Candidates selected by the major parties, whether through convention or primary, are automatically accorded a place on the ballot at the general election. § 9-379. The costs of primary elections are paid out of public funds. See, e. g., §9-441. The statute challenged in these proceedings, §9-431, has remained substantially unchanged since the adoption of the State’s primary system. In 1976, the statute’s constitutionality was upheld by a three-judge District Court against a challenge by an independent voter who sought a declaration of his right to vote in the Republican primary. Nader v. Schaffer, 417 F. Supp. 837 (Conn.), summarily aff’d, 429 U. S. 989 (1976). In that action, the Party opposed the plaintiff’s efforts to participate in the Party primary. Subsequent to the decision in Nader, however, the Party changed its views with respect to participation by independent voters in Party primaries. Motivated in part by the demographic importance of independent voters in Connecticut politics, in September 1983 the Party’s Central Committee recommended calling a state convention to consider altering the Party’s rules to allow independents to vote in Party primaries. In January 1984 the state convention adopted the Party rule now at issue, which provides: “Any elector enrolled as a member of the Republican Party and any elector not enrolled as a member of a party shall be eligible to vote in primaries for nomination of candidates for the offices of United States Senator, United States Representative, Governor, Lieutenant Governor, Secretary of the State, Attorney General, Comptroller and Treasurer.” App. 20. During the 1984 session, the Republican leadership in the state legislature, in response to the conflict between the newly enacted Party rule and § 9-431, proposed to amend the statute to allow independents to vote in primaries when permitted by Party rules. The proposed legislation was defeated, substantially along party lines, in both houses of the legislature, which at that time were controlled by the Democratic Party. The Party and the individual appellees then commenced this action in the District Court, seeking a declaration that §9-431 infringes appellees’ right to freedom of association for the advancement of common political objectives guaranteed by the First and Fourteenth Amendments, and injunc-tive relief against its further enforcement. After discovery, the parties submitted extensive stipulations of fact to the District Court, which granted summary judgment for appel-lees. The District Court concluded that “[a]ny effort by the state to substitute its judgment for that of the party on... the question of who is and is not sufficiently allied in interest with the party to warrant inclusion in its candidate selection process... substantially impinges on First Amendment rights.” 599 F. Supp., at 1238. Rejecting the state interests proffered by appellant to justify the statute, the District Court held that “as applied to the Republican Party rule permitting unaffiliated voters to participate in certain Republican Party primaries, the statute abridges the right of association guaranteed by the First Amendment.” Id., at 1241. The Court of Appeals affirmed, holding that § 9-431 “substantially interferes with the Republican Party’s first amendment right to define its associational boundaries, determine the content of its message, and engage in effective political association.” 770 F. 2d, at 283. II We begin from the recognition that “ [constitutional challenges to specific provisions of a State’s election laws... cannot be resolved by any ‘litmus-paper test’ that will separate valid from invalid restrictions.” Anderson v. Cele brezze, 460 U. S. 780, 789 (1983) (quoting Storer v. Brown, 415 U. S. 724, 730 (1974)). “Instead, a court... must first consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate. It then must identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule. In passing judgment, the Court must not only determine the legitimacy and strength of each of those interests, it also must consider the extent to which those interests make it necessary to burden the plaintiff’s rights.” 460 U. S., at 789. The nature of appellees’ First Amendment interest is evident. “It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the ‘liberty’ assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech.” NAACP v. Alabama ex rel. Patterson, 357 U. S. 449, 460 (1958); see NAACP v. Button, 371 U. S. 415, 430 (1963); Bates v. Little Rock, 361 U. S. 516, 522-523 (1960). The freedom of association protected by the First and Fourteenth Amendments includes partisan political organization. Elrod v. Burns, 427 U. S. 347, 357 (1976) (plurality opinion); Buckley v. Valeo, 424 U. S. 1, 15 (1976). “The right to associate with the political party of one’s choice is an integral part of this basic constitutional freedom.” Kusper v. Pontikes, 414 U. S. 51, 57 (1973). The Party here contends that § 9-431 impermissibly burdens the right of its members to determine for themselves with whom they will associate, and whose support they will seek, in their quest for political success. The Party’s át-tempt to broaden the base of public participation in and support for its activities is conduct undeniably central to the exercise of the right of association. As we have said, the freedom to join together in furtherance of common political beliefs “necessarily presupposes the freedom to identify the people who constitute the association.” Democratic Party of United States v. Wisconsin ex rel. La Follette, 450 U. S. 107, 122 (1981). A major state political party necessarily includes individuals playing a broad spectrum of roles in the organization’s activities. Some of the Party’s members devote substantial portions of their lives to furthering its political and organizational goals, others provide substantial financial support, while still others limit their participation to casting their votes for some or all of the Party’s candidates. Considered from the standpoint of the Party itself, the act of formal enrollment or public affiliation with the Party is merely one element in the continuum of participation in Party affairs, and need not be in any sense the most important. Were the State to restrict by statute financial support of the Party’s candidates to Party members, or to provide that only Party members might be selected as the Party’s chosen nominees for public office, such a prohibition of potential association with nonmembers would clearly infringe upon the rights of the Party’s members under the First Amendment to organize with like-minded citizens in support of common political goals. As we have said, “‘[a]ny interference with the freedom of a party is simultaneously an interference with the freedom of its adherents.’ ” Democratic Party, supra, at 122 (quoting Sweezy v. New Hampshire, 354 U. S. 234, 250 (1957)). The statute here places limits upon the group of registered voters whom the Party may invite to participate in the “basic function” of selecting the Party’s candidates. Kusper v. Pontikes, supra, at 58. The State thus limits the Party’s associational opportunities at the crucial juncture at which the appeal to common principles may be translated into concerted action, and hence to political power in the community. It is, of course, fundamental to appellant’s defense of the State’s statute that this impingement upon the associational rights of the Party and its members occurs at the ballot box, for the Constitution grants to the States a broad power to prescribe the “Times, Places and Manner of holding Elections for Senators and Representatives,” Art. I, §4, cl. 1, which power is matched by state control over the election process for state offices. But this authority does not extinguish the State’s responsibility to observe the limits established by the First Amendment rights of the State’s citizens. The power to regulate the time, place, and manner of elections does not justify, without more, the abridgment of fundamental rights, such as the right to vote, see Wesberry v. Sanders, 376 U. S. 1, 6-7 (1964), or, as here, the freedom of political association. We turn then to an examination of the interests which appellant asserts to justify the burden cast by the statute upon the associational rights of the Party and its members. HH I — I 1 — 1 Appellant contends that §9-431 is a narrowly tailored regulation which advances the State’s compelling interests by ensuring the administrability of the primary system, preventing raiding, avoiding voter confusion, and protecting the responsibility of party government. A Although it was not presented to the Court of Appeals as a basis for the defense of the statute, appellant argues here that the administrative burden imposed by the Party rule is a sufficient ground on which to uphold the constitutionality of § 9-431. Appellant contends that the Party’s rule would require the purchase of additional voting machines, the training of additional poll workers, and potentially the printing of additional ballot materials specifically intended for independents voting in the Republican primary. In essence, appellant claims that the administration of the system contemplated by the Party rule would simply cost the State too much. Even assuming the factual accuracy of these contentions, which have not been subjected to any scrutiny by the District Court, the possibility of future increases in the cost of administering the election system is not a sufficient basis here for infringing appellees’ First Amendment rights. Costs of administration would likewise increase if a third major party should come into existence in Connecticut, thus requiring the State to fund a third major-party primary. Additional voting machines, poll workers, and ballot materials would all be necessary under these circumstances as well. But the State could not forever protect the two existing major parties from competition solely on the ground that two major parties are all the public can afford. Cf. Anderson v. Celebrezze, 460 U. S. 780 (1983); Williams v. Rhodes, 393 U. S. 23 (1968). While the State is of course entitled to take administrative and financial considerations into account in choosing whether or not to have a primary system at all, it can no more restrain the Republican Party’s freedom of association for reasons of its own administrative convenience than it could on the same ground limit the ballot access of a new major party. B Appellant argues that § 9-431 is justified as a measure to prevent raiding, a practice “whereby voters in sympathy with one party designate themselves as voters of another party so as to influence or determine the results of the other party’s primary.” Rosario v. Rockefeller, 410 U. S. 752, 760 (1973). While we have recognized that “a State may have a legitimate interest in seeking to curtail ‘raiding,’ since that practice may affect the integrity of the electoral process,” Kusper v. Pontikes, 414 U. S., at 59-60; Rosario v. Rockefeller, supra, at 761, that interest is not implicated here. The statute as applied to the Party’s rule prevents independents, who otherwise cannot vote in any primary, from participating in the Republican primary. Yet a raid on the Republican Party primary by independent voters, a curious concept only distantly related to the type of raiding discussed in Kusper and Rosario, is not impeded by § 9-431; the independent raiders need only register as Republicans and vote in the primary. Indeed, under Conn. Gen. Stat. § 9-56 (1985), which permits an independent to affiliate with the Party as late as noon on the business day preceding the primary, see n. 7, supra, the State’s election statutes actually assist a “raid” by independents, which could be organized and implemented at the 11th hour. The State’s asserted interest in the prevention of raiding provides no justification for the statute challenged here. c Appellant’s next argument in support of § 9-431 is that the closed primary system avoids voter confusion. Appellant contends that “[t]he legislature could properly And that it would be difficult for the general public to understand what a candidate stood for who was nominated in part by an unknown amorphous body outside the party, while nevertheless using the party name.” Brief for Appellant 59. Appellees respond that the State is attempting to act as the ideological guarantor of the Republican Party’s candidates, ensuring that voters are not misled by a “Republican” candidate who professes something other than what the State regards as true Republican principles. Brief for Appellees 28. As we have said, “[t]here can be no question about the legitimacy of the State’s interest in fostering informed and educated expressions of the popular will in a general election.” Anderson v. Celebrezze, 460 U. S., at 796. To the extent that party labels provide a shorthand designation of the views of party candidates on matters of public concern, the identification of candidates with particular parties plays a role in the process by which voters inform themselves for the exercise of the franchise. Appellant’s argument depends upon the belief that voters can be “misled” by party labels. But “[o]ur cases reflect a greater faith in the ability of individual voters to inform themselves about campaign issues.” Id., at 797. Moreover, appellant’s concern that candidates selected under the Party rule will be the nominees of an “amorphous” group using the Party’s name is inconsistent with the facts. The Party is not proposing that independents be allowed to choose the Party’s nominee without Party participation; on the contrary, to be listed on the Party’s primary ballot continues to require, under a statute not challenged here, that the primary candidate have obtained at least 20% of the vote at a Party convention, which only Party members may attend. Conn. Gen. Stat. § 9-400 (1985). If no such candidate seeks to challenge the convention’s nominee in a primary, then no primary is held, and the convention nominee becomes the Party’s nominee in the general election without any intervention by independent voters. Even assuming, however, that putative candidates defeated at the Party convention will have an increased incentive under the Party’s rule to make primary challenges, hoping to attract more substantial support from independents than from Party delegates, the requirement that such challengers garner substantial minority support at the convention greatly attenuates the State’s concern that the ultimate nominee will be wedded to the Party in nothing more than a marriage of convenience. In arguing that the Party rule interferes with educated decisions by voters, appellant also disregards the substantial benefit which the Party rule provides to the Party and its members in seeking to choose successful candidates. Given the numerical strength of independent voters in the State, one of the questions most likely to occur to Connecticut Republicans in selecting candidates for public office is how can the Party most effectively appeal to the independent voter? By inviting independents to assist in the choice at the polls between primary candidates selected at the Party convention, the Party rule is intended to produce the candidate and platform most likely to achieve that goal. The state statute is said to decrease voter confusion, yet it deprives the Party and its members of the opportunity to inform themselves as to the level of support for the Party’s candidates among a critical group of electors. “A State’s claim that it is enhancing the ability of its citizenry to make wise decisions by restricting the flow of information to them must be viewed with some skepticism.” Anderson v. Celebrezze, supra, at 798. The State’s legitimate interests in preventing voter confusion and providing for educated and responsible voter decisions in no respect “make it necessary to burden the [Party’s] rights.” 460 U. S., at 789. D Finally, appellant contends that § 9-431 furthers the State’s compelling interest in protecting the integrity of the two-party system and the responsibility of party government. Appellant argues vigorously and at length that the closed primary system chosen by the state legislature promotes responsiveness by elected officials and strengthens the effectiveness of the political parties. The relative merits of closed and open primaries have been the subject of substantial debate since the beginning of this century, and no consensus has as yet emerged. Appellant invokes a long and distinguished line of political scientists and public officials who have been supporters of the closed primary. But our role is not to decide whether the state legislature was acting wisely in enacting the closed primary system in 1955, or whether the Republican Party makes a mistake in seeking to depart from the practice of the past 30 years. We have previously recognized the danger that “splintered parties and unrestrained factionalism may do significant damage to the fabric of government.” Storer v. Brown, 415 U. S., at 736. We upheld a California statute which denied access to the ballot to any independent candidate who had voted in a party primary or been registered as a member of a political party within one year prior to the immediately preceding primary election. We said: “[T]he one-year disaffiliation provision furthers the State’s interest in the stability of its political system. We also consider that interest as not only permissible, but compelling and as outweighing the interest the candidate and his supporters may have in making a late rather than an early decision to seek independent ballot status.” Ibid. The statute in Storer was designed to protect the parties and the party system against the disorganizing effect of independent candidacies launched by unsuccessful putative party nominees. This protection, like that accorded to parties threatened by raiding in Rosario v. Rockefeller, 410 U. S. 752 (1973), is undertaken to prevent the disruption of the political parties from without, and not, as in this case, to prevent the parties from taking internal steps affecting their own process for the selection of candidates. The forms of regulation upheld in Storer and Rosario imposed certain burdens upon the protected First and Fourteenth Amendment interests of some individuals, both voters and potential candidates, in order to protect the interests of others. In the present case, the state statute is defended on the ground that it protects the integrity of the Party against the Party itself. Under these circumstances, the views of the State, which to some extent represent the views of the one political party transiently enjoying majority power, as to the optimum methods for preserving party integrity lose much of their force. The State argues that its statute is well designed to save the Republican Party from undertaking a course of conduct destructive of its own interests. But on this point “even if the State were correct, a State, or a court, may not constitutionally substitute its own judgment for that of the Party.” Democratic Party of United States v. Wisconsin ex rel. La Follette, 450 U. S., at 123-124 (footnote omitted). The Party’s determination of the boundaries of its own association, and of the structure which best allows it to pursue its political goals, is protected by the Constitution. “And as is true of all expressions of First Amendment freedoms, the courts may not interfere on the ground that they view a particular expression as unwise or irrational.” Id., at 124. We conclude that the State’s enforcement, under these circumstances, of its closed primary system burdens the First Amendment rights of the Party. The interests which the appellant adduces in support of the statute are insubstantial, and accordingly the statute, as applied to the Party in this case, is unconstitutional. IV Appellant argues here, as in the courts below, that implementation of the Party rule would violate the Qualifications Clause of the Constitution, Art. I, §2, cl. 1, and the Seventeenth Amendment because it would establish qualifications for voting in congressional elections which differ from the voting qualifications in elections for the more numerous house of the state legislature. The Party rule as adopted permits independent voters to vote in Party primaries for the offices of United States Senator and Member of the House of Representatives, and for statewide offices, but is silent as regards primaries held to contest nominations for seats in the state legislature. See swpra, at 212. Appellant contends that the Qualifications Clause and the Seventeenth Amendment require an absolute symmetry of qualifications to vote in elections for Congress and the lower house of the state legislature, and that the Party rule, if implemented according to its terms, would require lesser qualifications for voting in Party primaries for federal office than for state legislative office. The Court of Appeals rejected appellant’s argument, holding that the Qualifications Clause and the parallel provision of the Seventeenth Amendment do not apply to primary elections. 770 F. 2d, at 274. The concurring opinion took a different view, reaching the conclusion that these provisions require only that “anyone who is permitted to vote for the most numerous branch of the state legislature has to be permitted to vote” in federal legislative elections. Id., at 286 (Oakes, J., concurring). We agree. We recognize that the Federal Convention, in adopting the Qualifications Clause of Article I, § 2, was not contemplating the effects of that provision upon the modern system of party primaries. As we have said: “We may assume that the framers of the Constitution in adopting that section, did not have specifically in mind the selection and elimination of candidates for Congress by the direct primary any more than they contemplated the application of the commerce clause to interstate telephone, telegraph and wireless communication, which are concededly within it. But in determining whether a provision of the Constitution applies to a new subject matter, it is of little significance that it is one with which the framers were not familiar. For in setting up an enduring framework of government they undertook to carry out for the indefinite future and in all the vicissitudes of the changing affairs of men, those fundamental purposes which the instrument itself discloses.” United States v. Classic, 313 U. S. 299, 315-316 (1941). The fundamental purpose underlying Article I, § 2, cl. 1, that “[t]he House of Representatives shall be composed of Members chosen... by the People of the several States,” like the parallel provision of the Seventeenth Amendment, 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. 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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_applfrom	J	What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court). Charles D. LONG and Gertrude G. Long, Petitioners, v. COMMISSIONER OF INTERNAL REVENUE, Respondent. No. 16335. United States Court of Appeals Eighth Circuit. April 13, 1960. Milton Yawitz, St. Louis, Mo., for petitioner. Chas. B. E. Freeman, Atty., Tax Division, Dept. of Justice, Washington, D. C., for respondent. Before GARDNER, VOGEL and VAN OOSTERHOUT, Circuit Judges. GARDNER, Circuit Judge. This matter is before us on petition to review a decision of the Tax Court which disallowed certain expenditures claimed by taxpayers as ordinary and necessary business expenses. The wife has been joined solely by reason of her being a party to the joint return and hereinafter Charles D. Long will be referred to as petitioner or taxpayer. The income tax transaction involved is for the year 1953. At all times pertinent to the issues here involved taxpayer was a practicing lawyer. During the year 1953 he practiced law in the State of Missouri and elsewhere as a senior partner in the law firm of Rassieur, Long & Yawitz, St. Louis, Missouri. During this same period he was a member of the Missouri Athletic Club, a business-social club in St. Louis, Missouri, and he was also a member of the Algonquin Golf Club of Webster Groves, Missouri. During the tax year he paid as dues to these two clubs the aggregate amount of $565.94 and in his income tax return claimed this amount as a business expense deduction. During the tax year he was nominated to the Board of Governors of the Missouri Athletic Club and expended in his campaign for election the sum of $1,487.42, which amount he also claimed as a business expense deduction. The Commissioner disallowed one-third of the club dues paid by the taxpayer and disallowed the entire amount expended in his campaign for election to the Board of Governors of the Missouri Athletic Club. From the decision of the Commissioner disallowing his claimed deductions on account of club dues and campaign expenses and redetermining the amount of his tax due, petitioner appealed to the Tax Court. On trial, the court found the issues in favor of the Commissioner and entered decision upholding the deficiency of taxpayer’s income tax as redetermined by the Commissioner. ' It was the contention of the taxpayer in the Tax Court that the expenditures for club dues and campaign expenses were deductible from his income for the tax year and were allowable as ordinary and necessary business expense under Section 23(a) (1) (A), Internal Revenue Code of 1939, 26 U.S.C.A. § 23(a) (1) (A), and he renews that contention here. The courts are in accord that deductions from gross income are a matter of legislative grace and do not turn on general equitable considerations and the burden of clearly showing the right to the claimed deduction is on the taxpayer. F. Strauss & Son, Inc. v. Commissioner of Internal Revenue, 8 Cir., 251 F.2d 724; Deputy v. Dupont, 308 U.S. 488, 60 S.Ct. 363, 84 L.Ed. 416; New Colonial Ice Co. v. Helvering, 292 U.S. 435, 54 S.Ct. 788, 78 L.Ed. 1348; Omaha Nat. Bank v. Commissioner of Internal Revenue, 8 Cir., 183 F.2d 899, 25 A.L.R.2d 628; O’Malley v. Yost, 8 Cir., 186 F.2d 603; Wetterau Grocer Co. v. Commissioner of Internal Revenue, 8 Cir., 179 F.2d 158; Montana Power Co. v. United States, 3 Cir., 232 F.2d 541. Whether or not the expenditures are. ordinary and necessary business expenses is a question of fact to be determined from all the evidence and circumstances of each case. Commissioner of Internal Revenue v. Heininger, 320 U.S. 467, 64 S.Ct. 249, 88 L.Ed. 171. It is argued by taxpayer that the testimony in support of his contention was uncontradicted and reasonable and hence should have been accepted by the Tax Court as controlling. The testimony was in conflict with the Commissioner’s finding, which was prima facie correct, and in its nature consisted largely of estimates and opinions which the court was not bound to believe, and it was also in conflict to some extent with the testimony of taxpayer’s witness Patten. It was, of course, a function of the Tax Court as the trier of issues of fact to weigh the evidence and to determine the credibility of the witnesses. Gloyd v. Commissioner of Internal Revenue, 8 Cir., 63 F.2d 649. In the instant case, as observed, the court had before it the determination of the Commissioner, which is prima facie correct, and the testimony of witnesses. There is little conflict in the evidence. Taxpayer was a member of the Missouri Athletic Club, which had a membership of 4,500, as were many of the clients of his firm. He was solicited to become a candidate for membership on the Board of Governors of this club and after consulting with his law partners and certain of his associates he became a candidate and was elected. His own testimony indicates that his relations to the club were both for business and social purposes. One of his witnesses testified that the taxpayer’s election to the Board of Governors of the Athletic Club did not affect or benefit the witness’s business firm. The Tax Court in the course of its findings on this point said: “Even assuming, but not deciding, that petitioner’s original purpose for joining was business in nature, such original business motive does not control the status of all subsequent club expenditures. In light of petitioner's own testimony that he used both clubs for both business and personal purposes, respondent’s allowance of only two-thirds of the entire amount paid for club dues is reasonable and proper. By not introducing any contrary evidence, petitioner has failed to meet his burden of proving respondent’s determination incorrect.” This finding is presumptively correct and should not be set aside unless clearly erroneous. We agree with the Tax Court that the taxpayer has failed to produce convincing evidence that the determination of the Commissioner was erroneous and hence the Commissioner’s finding that only two-thirds of the club dues should be allowed as an ordinary and necessary business expense must be sustained. It remains to consider the contention that the campaign expense incurred by taxpayer was allowable as a business expense. The statute does not define nor determine what is or is not an “ordinary and necessary” business expense. Taxpayer was a lawyer, a professional man as distinguished from a business man. The Missouri Athletic Club was not an association of lawyers, nor is it conceivable that an election to its Board of Governors would enhance either his skill, usefulness, or reputation as a lawyer. In referring to the value of a membership on the Board of Governors of the Missouri Athletic Club, the Tax Court in its decision said: “Apparently most of the members who lunched together at the ‘Round Table’ and who favored petitioner’s election to the Board of Governors, were already clients of his firm. It was the acquaintanceship gained from their previous attorney-client relationship which caused them to nominate and support him for membership on the Board of Governors, rather than his being a member of the Board of Governors that caused them to become his clients.” Taxpayer in his testimony estimated that during the tax year 35% of his law firm’s income came from members of the Athletic Club. As observed by the Tax Court, he produced no specific evidence of any amounts received as attorney fees from members but simply gave his estimate, although evidence of such alleged payments was manifestly available in the account books of his law firm. What is said by this Court in F. Strauss & Son, Inc. v. Commissioner of Internal Revenue, supra, is, we think, peculiarly apposite. In that case taxpayer was a wholesale liquor dealer. It was interested in defeating an initiated measure in the nature of a prohibition act and for that purpose it contributed to a campaign fund, which contributions it sought to deduct as a business expense. In the course of the opinion it is, among other things, said: “It cannot, we think, be reasonably contended that expenditure in conducting a campaign for the defeat of a proposed prohibition enactment was an ordinary and necessary expense of ‘carrying on’ a wholesale liquor business. The corporation was empowered by its charter to conduct a wholesale liquor business and it was not empowered by its charter or articles of incorporation to conduct political campaigns. In McDonald v. Commissioner, supra [323 U.S. 57, 65 S. Ct. 97], petitioner made very substantial expenditures in his campaign to be reelected a judge and he sought to deduct these expenditures as ordinary and necessary business expenses. In denying the right to make these deductions, the court among other things said: “ ‘He could, that is, deduct all expenses that related to the discharge of his functions as a judge. But his campaign contributions were not expenses incurred in being a judge but in trying to be a judge for the next ten years.’ “In that case, as in the instant case, it was urged that the expenditure was necessary as his defeat in the election would ruin his business. Quite aside from the Treasury Regulation, we think it cannot be said that this statute, Section 23(a) (1) (A) of the Internal Revenue Code of 1939, is a clear provision for such allowance.” [251 F.2d 726.] We are not persuaded that the expenditure made by him in his campaign for election to membership on the Board of Governors of the Athletic Club was an ordinary and necessary business expense of taxpayer’s law practice. The decision of the Tax Court is therefore affirmed. Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)? A. Trial (either jury or bench trial) B. Injunction or denial of injunction or stay of injunction C. Summary judgment or denial of summary judgment D. Guilty plea or denial of motion to withdraw plea E. Dismissal (include dismissal of petition for habeas corpus) F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict) G. Appeal of post settlement orders H. Not a final judgment: interlocutory appeal I. Not a final judgment: mandamus J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment K. Does not fit any of the above categories, but opinion mentions a "trial judge" L. Not applicable (e.g., decision below was by a federal administrative agency, tax court) Answer:
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. CAMPBELL et al. v. UNITED STATES. No. 53. Argued December 6, 1960. Decided January 23, 1961. Melvin S. Louison and Lawrence F. O’Donnell argued the cause for petitioners. With them on the brief was Leonard Louison. Roger G. Connor argued the cause for the United States. On the brief were Solicitor General Rankin, Assistant Attorney General Wilkey, Beatrice Rosenberg and Kirby W. Patterson. Mr. Justice Brennan delivered the opinion of the Court. After a government witness testifies on direct examination in a federal criminal prosecution the trial court is required, under the so-called Jencks Act, on motion of the defendant, to order the United States to produce, for impeachment purposes, defined pretrial statements of the witness, or parts of such statements as determined under subsection (c), which relate to the subject matter of his trial testimony and are in the possession of the United States. The conviction of the petitioners in the District Court for the District of Massachusetts for bank robbery in violation of 18 U. S. C. § 2113 was sustained by the Court of Appeals for the First Circuit. 269 F. 2d 688. During the trial the court ordered the Government to produce a document described on cross-examination by one of its witnesses in terms which satisfy the definition of a “statement” under the Act. The Government denied having possession of such a document. It did, however, admit possession of an Interview Report of an interview by an FBI agent with that witness, but contended that this report fell outside the statute. The trial judge held an inquiry without the jury present, at the conclusion of which he refused to order the United States to deliver the Interview Report to the petitioners, and also denied their motion to strike the testimony of the witness. The procedure at that inquiry raises questions important in the administration of the Jencks Act, and we granted certio-rari limited to the review of those questions. 362 U. S. 909. The government witness was Dominic Staula, a depositor who was in the bank at the time of the robbery. On direct examination he identified the petitioner Lester as one of the robbers. When asked on cross-examination whether he made any statements to government agents before the trial, he said that an agent of the Federal Bureau of Investigation who interviewed him during the week following the robbery wrote down such a statement. His recollection of what occurred at the interview was not entirely clear, but the trial judge ruled that he had made a statement satisfying the requirements of the Jencks Act and ordered the United States to produce it. The Assistant United States Attorney presenting the Government’s case stated that he had no such paper as the witness described. He stated further that the only document in the possession of the prosecution was not a "statement” within the statute, but a typed Interview Report of FBI Special Agent Toomey prepared and transcribed after the interview at a time unknown to the Assistant. The Assistant refused to deliver the report to petitioners’ counsel but delivered it to the judge for his inspection. To the court’s question whether the Government possessed “any statement that was copied by an FBI Agent which in any way would reflect a statement that this witness made and which he substantially adopted as the statement,” the Assistant replied “No, your Honor, we don’t.” To the further question whether “the United States [has] in its possession any notes that were taken down by the FBI Agent at the time this witness was interviewed,” the Assistant answered, “I do not have them in my possession and I do not know whether they ever existed.” The Jencks Act limits access by defendants to such government papers as fit the Act’s definition of “statements” which relate to the subject matter as to which the witness has testified, Palermo v. United States, 360 U. S. 343. However, the statute requires that the judge shall, on motion of the defendant, after a witness called by the United States has testified on direct examination, order the United States, for impeachment purposes, to produce any such “statements.” To that extent, as the legislative history makes clear, the Jencks Act “reaffirms” our holding in Jencks v. United States, 353 U. S. 657, that the defendant on trial in a federal criminal prosecution is entitled, for impeachment purposes, to relevant and competent statements of a government witness in possession of the Government touching the events or activities as to which the witness has testified at the trial.. S. Rep. No. 981, 85th Cong., 1st Sess., p. 3. And see H. R. Rep. No. 700, 85th Cong., 1st Sess., pp. 3-4. The command of the statute is thus designed to further the fair and just administration of criminal justice, a goal of which the judiciary is the special guardian. After an overnight recess the trial judge conducted an inquiry without the jury present to take testimony and hear argument of counsel. Plainly enough this was a proper, even a required, proceeding in the circumstances. Determination of the question whether the Government should be ordered to produce government papers could not be made from a mere inspection of the Interview Report, but only with the help of extrinsic evidence. The situation was different from that governed by subsection (c), in which the Government admits that a document in its possession is a “statement” but submits the paper for the judge’s in camera inspection to delete matter which the Government contends does not relate to the subject matter of the testimony of the witness. The situation was similar to that in Palermo, where the Government also contended that a paper in its possession was not a “statement.” We there approved the procedure of taking extrinsic testimony out of the presence of the jury to assist the judge in reaching his determination whether to order production of the paper. We said, at 354-355, “It is also the function of the trial judge to decide, in light of the circumstances of each case, what, if any, evidence extrinsic to the statement itself may or must be offered to prove the nature of the statement.” In this case the aid of extrinsic evidence was required to answer the following questions bearing on the petitioners’ motions: Did Toomey write down what Staula told him at the interview? If so, did Toomey give Staula the paper “to read over, to make sure that it was right,” and did Staula sign it? Was the Interview Report the paper Staula described, or a copy of that paper? In either case, as the trial judge ruled, the Interview Report would be a producible “statement” under subsection (e) (1). “Statements” under that subsection are not limited to such as the witness has himself set down on paper. They include also a statement written down by another which the witness • “signed or otherwise adopted or approved” as a statement “made by said witness.” True, the report does not bear Staula’s signature and the witness testified “I think I had to sign” the original paper. Hbwever, if the paper was otherwise adopted or approved by the witness, his signature was not essential. See Bergman v. United States, 253 F. 2d 933, 935, note 1; United States v. Tomaiolo, 280 F. 2d 411, 413. If the Interview Report was not the original or a copy of the paper Staula described, what became of the paper? In any event, even if the Interview Report was not the original or a copy of the paper Staula described, had Staula read over and approved the Interview Report? In such case the report would be producible under subsection (e)(1) although not related to the paper Staula described. Or was the Interview Report a substantially verbatim recital of an oral statement which the agent had recorded contemporaneously? If extrinsic evidence established this, the report would be producible under subsection (e)(2). Palermo v. United States, at 351-352. The obvious witness to call was Special Agent Toomey who, the parties agreed, was readily available. Defense counsel suggested that the agent be called “to explain where he got the . . . [Interview Report],” and also because “Mr. Toomey could easily say what he has done with the original writing.” Defense counsel were not in a position also to appreciate the significance of Toomey’s testimony to the possible producibility of the Interview Report itself. Consistent with our admonition in Palermo, 360 U. S., at 354, that “It would indeed defeat this design [to limit defense access to government papers] to hold that the defense may see statements in order to argue whether it should be allowed to see them,” neither the Government nor the judge permitted them to inspect it. From his own inspection, however, the judge was aware of the significance which Toomey’s evidence might have on the judge’s determination whether he should order the Government to turn over the Interview Report to the defense. The Interview Report resembles the statement Staula described and the judge indicated that he would order its production if it was that statement or a copy of it, or although not the original or a copy, if Staula had read and approved it, or if it was a contemporaneously recorded substantially verbatim recital of Staula’s oral statement. Nevertheless, the judge ruled that it was for the petitioners to subpoena Toomey as “their witness” if they believed his testimony would support their motions, and that he would not of his own motion summon Toomey to testify, or require the Government to produce him. We think that this ruling was erroneous. The inquiry being conducted by the judge was not an adversary proceeding in the nature of a trial controlled by rules governing the allocation between the parties of the burdens of proof or persuasion. The inquiry was simply a proceeding necessary to aid the judge to discharge the responsibility laid upon him to enforce the statute. The function of prosecution and defense at the inquiry was not so much a function of their adversary positions in the trial proper, as it was a function of their duty to come forward with relevant evidence which might assist the judge in the making of his determination. These considerations standing alone suggest that the emphasis on the petitioners' burden to produce the evidence was misplaced. The statute says nothing of burdens of producing evidence. Rather it implies the duty in the trial judge affirmatively to administer the statute in such way as can best secure relevant and available evidence necessary to decide between the directly opposed interests protected by the statute — the interest of the Government in safeguarding government papers from disclosure, and the interest of the accused in having the Government produce “statements” which the statute requires to be produced. The circumstances of this case clearly required that the judge call Toomey of his own motion or require the Government to produce him. Not only did the Government have the advantage over the defense of knowing the contents of the Interview Report but it also had the advantage of having Toomey in its employ and presumably knew, or could readily ascertain from him, the facts about the interview. In addition to the consideration that the interest of the United States in a criminal prosecution “. . . is not that it shall win a case, but that justice shall be done, . . .” Berger v. United States, 295 U. S. 78, 88, the ordinary rule, based on considerations of fairness, does not place the burden upon a litigant of establishing facts peculiarly within the knowledge of his adversary. United States v. New York, N. H. & H. R. Co., 355 U. S. 253, 256, note 5. Moreover, the petitioners’ cross-examination of Staula had shown a prima jade case of their entitlement to a statement, and, at the least, the judge should have required the Government to come forward with evidence to answer that case. Cf. United States v. Costello, 145 F. Supp. 892, 894-895, note 13. Since the Interview Report was not, and under Palermo could not be, made available to the petitioners, and they thus had no way of knowing the significance of its contents to the question the judge was to determine, it saddled an unfairly severe burden on them to require them to subpoena Toomey as “their witness.” In the role of petitioners’ witness, they would be groping in the dark in questioning him, and they might be bound by his answers. As a witness called by the Government or even as the court’s witness, they would have a latitude in cross-examination to which the circumstances entitled them. Instead of calling Toomey or having the Government call him, the trial judge fell into further error by relying upon Staula to supply the information he sought. Over the objection of government counsel that the Interview Report had not been “recorded contemporaneously with the making of such oral statement,” and over the objection of the petitioners that “If this man now reads that statement it loses its effect for purposes of impeachment,” the judge directed Staula to read the Interview Report and say whether he was familiar with it. The witness said that he had never seen the report. The judge then asked Staula “. . . is that a substantially verbatim recital of what you told Agent Toomey?” The witness replied, “That’s not written up just the way the story is.” “There are things in there turned around.” It was after this testimony was elicited from Staula that the judge ruled he would not order the delivery of the Interview Report to the petitioners, and denied their motion to strike the witness’ testimony. Reliance upon the testimony of the witness based upon his inspection of the controverted document must be improper in almost any circumstances. The very question being determined was whether the defense should have the document for use in cross-examining the witness. Under Palermo, the trial judge was not to allow the defense to inspect the Interview Report “in order to argue whether it should be allowed to see” it, since to do so would be inconsistent with the congressional purpose to limit access to government papers. Similarly, Staula should not have been allowed to inspect the Interview Report, since there necessarily inhered in the witness’ inspection of the paper the obvious hazard that his self-interest might defeat the statutory design of requiring the Government to produce papers which are “statements” within the statute. For example, the Interview Report states that Staula was unable to give any description of one of the robbers. This is in sharp contrast to his positive identification of Lester made on direct examination. Experienced trial judges and lawyers will readily understand the value of the use of the report on cross-examination of the witness. But the petitioners were deprived of the opportunity to make use of the report by the obviously self-serving declarations of the witness that it did not accurately record what he told the agent. Moreover, failure of the judge to call for Toomey’s testimony foreclosed a proper determination of the petitioners’ motion to strike the witness’ testimony. If the Interview Report was not the original or a copy of the paper Staula described, and that paper was destroyed, the petitioners might have been denied a statement to which they were entitled under the statute. Thus, even if the Interview Report itself were producible, a situation might have arisen calling for decision whether subsection (d) of the statute required the striking of the testimony of the witness. The parties argue whether destruction may be regarded as the equivalent of noncompliance with an order to produce under that subsection. The Government contends that only destruction for improper motives or in bad faith should be so regarded. The petitioners contend that destruction without regard to the circumstances should be so regarded. However, this record affords us no opportunity to decide this important question of the construction of subsection (d). We do not yet know that such a paper existed, and was destroyed, or the circumstances of its destruction, nor can we know without the benefit at least of Toomey’s testimony. We conclude that because of these errors in the conduct of the inquiry the petitioners are entitled to a redeter-mination of their motion for the production of Staula’s pretrial statements, and of their motion to strike his testimony. However, we do not think that this Court should vacate their conviction and order a new trial. The petitioners’ rights can be fully protected by a remand to the trial court with direction to hold a new inquiry consistent with this opinion. See United States v. Shotwell Mfg. Co., 355 U. S. 233. The District Court will supplement the record with new findings and enter a new final judgment of conviction if the court concludes upon the new inquiry to reaffirm its former rulings. This will preserve to the petitioners the right to seek further appellate review on the augmented record. On the other hand, if the court concludes that the Government should have been required to deliver the Interview Report or other statement to the petitioners, or that it should have granted their motion to strike Staula’s testimony, the court will vacate the judgment of conviction and accord the petitioners a new trial. The judgment of the Court of Appeals is therefore vacated and the case is remanded to the District Court for further proceedings consistent with this opinion. It is so ordered. 18 U. S. C. § 3500. Demands for production of statements and reports of witnesses. “(a) In any criminal prosecution brought by the United States, no statement or report in the possession of the United States which was made by a Government witness or prospective Government witness (other than the defendant) to an agent of the Government shall be the subject of subpena, discovery, or inspection until said witness has testified on direct examination in the trial of the case. “(b) After a witness called by the United 'States has testified on direct examination, the court shall, on motion of the defendant, order the United States to produce any statement (as hereinafter defined) of the witness in the possession of the United States which relates to the subject matter as to which the witness has testified. If the entire contents of any such statement relate to the subject matter of the testimony of the witness, the court shall order it to be delivered directly to the defendant for his examination and use. “(c) If the United States claims that any statement ordered to be produced under this section contains matter which does not relate to the subject matter of the testimony of the witness, the court shall order the United States to deliver such statement for the inspection of the court in camera. Upon such delivery the court shall excise the portions of such statement which do not relate to the subject matter of the testimony of the witness. With such material excised, the court shall then direct delivery of such statement to the defendant for his use. If, pursuant to such procedure, any portion of such statement is withheld from the defendant and the defendant objects to such withholding, and the trial is continued to an adjudication of the guilt of the defendant, the entire text of such statement shall be preserved by the United States and, in the event the defendant appeals, shall be made available to the appellate court for the purpose of determining the correctness of the ruling of the trial judge. Whenever any statement is delivered to a defendant pursuant to this section, the court in its discretion, upon application of said defendant, may recess proceedings in the trial for such time as it may determine to be reasonably required for the examination of such statement by said defendant and his preparation for its use in the trial. “ (d) If the United States elects not to comply with an order of the court under paragraph (b) or (c) hereof to deliver to the defendant any such statement, or such portion thereof as the court may direct, the court shall strike from the record the testimony of the witness, and the trial shall proceed unless the court in its discretion shall determine that the interests of justice require that a mistrial be declared. “(e) The term ‘statement,’ as used in subsections (b), (c), and (d) of this section in relation to any witness called by the United States, means— “(1) a written statement made by said witness and signed or otherwise adopted or approved by him; or “(2) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by said witness to an agent of the Government and recorded contemporaneously with the making of such oral statement.” Added by Pub. L. 85-269, Sept. 2, 1957, 71 Stat. 595. The pertinent parts of his testimony are as follows: “XQ. Now, Mr. Witness, when you said you had a conversation with the FBI some time less than a week after July 18, 1957, did they write down what you had to say to them? “The Court: If you know. “The Witness: Yes. “XQ. And did they read it back to you, sir? A. Yes. “XQ. And did they ask you if that was essentially what you had just related to them? A. Yes. “XQ. And did you tell them yes? A. Yes. “The Court: I will order it produced. There is a foundation laid for it. “The Witness: ... He didn’t actually ask me questions. I mean, at first I told him the story, and then when I got through he asked me a few questions. “The Court: Well, did he read it back to you? “The Witness: I believe he did. “The Court: What is your best memory of it? “The Witness: I am pretty sure he did. “The Court: Is your memory such as to enable you to say that what was read back to you was an accurate statement of what you told him? “The Witness: Yes. “The Witness: If you will excuse me, I am trying to rack my brain to think about what happened. I think they wrote down what I said, and then I think they gave it back to me to read over, to make sure that it was right. And I think I had to sign it. Now, I am not Sure. I couldn’t remember before — ” The District Court sealed the Interview Report for the Court of Appeals. The Court of Appeals released it and it is in the record here. The full text is as follows: “Federal Bureau of Investigation Interview Report “Mr. Dominic Staula, home address 259 Island Street, Stoughton, Massachusetts, a customer at the victim bank, advised that he arrived at the Norfolk County Trust Company in Canton, Massachusetts, to' transact some business at approximately 10:15 A. M., July 18, 1957. Mr. Staula stated that he was driving a truck and parked it beside the Canton Depot in the parking area located between the railroad depot and the bank. He stated that he noted nothing unusual when he entered this parking area nor did he notice anything unusual in walking from where he parked his vehicle to the bank. “It was stated by Mr. Staula that he went to the teller’s window which is served by Mr. Kennedy and while standing in line at this window, but before being waited upon by Mr. Kennedy, he heard somebody state from behind him ‘Over against the wall.’ “Mr. Staula stated that he looked around and observed a man whom he described as being a negro, wearing gray chino pants, standing in the center of the lobby and holding a gun. Staula stated that he immediately realized that the bank was being held up and at once took his deposits which consisted of cash and slid them into his side trouser pocket. “Mr. Staula went on to state that he only observed the man standing in the center of the lobby for an instant and could give no further description of him because he turned toward the front of the bank and observed another man standing there holding a gun. Staula stated that he looked at this man for a short period of time and described him as follows: [Footnote 3 continued on p. 91.1 “Property of FBI. — This report is loaned to you by the FBI, and neither it nor its contents are to be distributed outside the agency to which loaned. Sex . Male. Race . Negro. Age . Approximately 30 years. Height . 5' 10". Weight . 165 pounds. Complexion . Very dark. Build . Slender. Face . Round. Clothing . Dark blue suit. Blue snap brim hat. White shirt. “Mr. Staula stated that he did not observe a third man in the bank— “It was stated by Mr. Staula that he did not know what type of gun was carried by these two individuals whom he observed but believed that they could have been 45 caliber automatics. “Mr. Staula stated that after taking a look at the individual wearing the blue suit he faced the wall as previously ordered and observed these individuals no further. “He stated that after he stood with his face to the wall for approximately 10 minutes one of the robbers ordered him and the other people who were standing on either side of him to walk into the vault. He stated that he does not recall which of the robbers issued this order but that he did enter the vault as directed and observed these individuals no further. “Mr. Staula stated that one of the robbers, closed the door of the vault he issued some order to the effect that the people locked inside should not leave and that they stayed there for 5 or 10 minutes until the vault door was opened by Sergeant Ruane of the Canton, Massachusetts, Police Department.” “Interview with Dominic Staula, File # 91-952, on July 19, 1957, at Canton, Massachusetts, by Special Agent John F. Toomey, Jr., bjp.” 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_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. The OHIO CASUALTY INSURANCE CO., Plaintiff-Appellant, v. FORD MOTOR COMPANY, Defendant-Appellee. No. 73-1435. United States Court of Appeals, Sixth Circuit. Submitted Dec. 7, 1974. Decided Aug. 23, 1974. Paul C. Weick, Circuit Judge, dissented and filed opinion. Charles N. Myers, Jr., Hamilton, Kramer, Myers & Summers, Columbus, Ohio, on brief, for plaintiff-appellant. Vorys, Sater, Seymour & Pease, Edgar A. Strause, Columbus, Ohio, on brief, for defendant-appellee. Before WEICK, McCREE, and MILLER, Circuit Judges. McCREE, Circuit Judge. This appeal requires us to decide whether, under Ohio law, the six-year statute of limitations, governing actions upon contracts, express or implied, or the two-year statute of limitations, governing actions for bodily injury or injury to personal property, applies in an action for indemnification against an automobile manufacturer brought by an insurance company, subrogated to the rights of its insured, who was compelled to respond to third persons for personal injury and property damage allegedly caused by a defect in one of the manufacturer’s vehicles. The district court held that the two-year statute of limitations applied and dismissed the complaint on defendant’s motion. We determine that the six-year statute of limitations is applicable and reverse. Under Ohio decisional law, which is applicable in this diversity case, “The period of limitation within which an action must be commenced is determined from the nature of the demand and the ground of the action as set out in the pleadings.” State ex rel. Lien v. House, 144 Ohio St. 238, 58 N. E.2d 675 (1944). See also Ohio Casualty Insurance Co. v. Capolino, 44 O.L. Abs. 564, 65 N.E.2d 287, 289 (1945). The complaint alleged that the brakes on the insured’s truck failed ■ because of a defect, and that the truck went out of control and caused extensive personal injury and property damage to third persons; that Ford Motor Company, the manufacturer, was “primarily liable” for all damages; and that appellant is entitled to indemnification for payments it made in settlement of damage claims when Ford failed to act after having been given notice and an opportunity to defend. All the settlement payments were made more than two years before the complaint was filed, but, with one exception, all were made within six years of the commencement of the action. Although the parties disagree about which statute of limitations applies, they agree that the applicable statute began to run when each payment was made. Appellant’s Brief at 6; Appellee’s Brief at 24. See 28 O.Jur.2d, Indemnity § 2. See generally 20 A.L.R. 2d 925. Of course, the insurance company, as subrogee, has no greater rights against Ford — no longer time in which to commence an action — than the insured would have had if he, instead of the insurance company, had paid the claims and sued appellee for indemnification. 50 O.Jur.2d, Subrogation § 26. The “ground of the action pleaded,” see State ex rel. Lien v. House, supra, is “[if] one secondarily liable for a wrongful injury is compelled to respond in damages to the injured person, he may recoup his loss, upon an implied contract of indemnity, from the one who actually created the danger or perpetrated the wrong.” 28 O.Jur.2d Indemnity § 12 (emphasis added). This rule applies not only when a formal judgment is rendered, Maryland Casualty Co. v. Frederick, 142 Ohio St. 605, 53 N.E.2d 795 (1944), but also when the party vicariously or secondarily liable is compelled to settle a claim, after giving notice and an opportunity to defend to the party primarily liable. Globe Indemnity v. Schmitt, 142 Ohio St. 595, 53 N.E.2d 790 (1944). And an action for indemnification based upon primary and secondary liability may be brought in Ohio whether or not there exists in fact a contractual relationship between the parties. Burns v. Pennsylvania Rubber & Supply Co., 117 Ohio App. 12, 189 N. E.2d 645, 22 Ohio Op.2d 451 (1961). See also Aetna Casualty & Surety Co. v. Buckeye Union Casualty Co., 157 Ohio St. 385, 105 N.E.2d 568 (1952). The cause of action for indemnification based on primary and secondary liability is considered to be an action arising under an “implied contract.” Maryland Casualty Co. v. Frederick, supra; 28 O.Jur.2d Indemnity § 12. And the Ohio courts have held that an action arising under an “implied contract” for indemnification is governed by the six-year statute of limitations. Poe v. Dixon, 60 Ohio St. 124, 54 N.E. 86 (1899); Ohio Casualty Insurance Co. v. Capolino, 44 O.L.Abs. 564, 65 N.E.2d 287 (1945); 28 O.Jur.2d Indemnity § 19, p. 326. We conclude that these authorities require reversal of the district court’s decision. We are not persuaded by appellee’s argument that this action is governed by the two-year statute of limitations because the “real purpose” of the action is to recover for personal injury and property damage. See, e. g., Andrianos v. Community Traction Co., 155 Ohio St. 47, 97 N.E.2d 549 (1951); Mahalsky v. The Salem Tool Company, 461 F.2d 581 (6th Cir. 1972); Tomle v. New York Central Railroad, 234 F.Supp. 101 (N. D.Ohio 1964). These cases were actions to gain compensation for personal injury or property damage. Here, the “real purpose” of the action is not to recover compensation for damage incurred in the automobile accident but, instead, to obtain indemnification for monies paid to the injured third persons who suffered the damage. This difference is dispositive. In Ohio Casualty Insurance Co. v. Capolino, supra, for example, the plaintiff insurer agreed to indemnify an employer for any loss caused by the negligence of his employees acting in the scope of their employment. Following a motor vehicle accident involving the negligence of employee Capolino, the insurance company paid a damage claim to an injured third person and then proceeded to bring an action against Capolino for indemnification on the theory that he was primarily liable. The court held the action was governed by the six-year statute of limitations for implied contracts and was not barred by the two-year limitations period governing actions for personal injury or property damage. See also Schulz v. Allstate Ins. Co., 17 Ohio Misc. 83, 244 N.E.2d 546 (1968). As in this case, the underlying basis for the implied contract of indemnification was the payment of a tort claim for personal injury and property damage arising from an automobile accident. We reject appellee’s argument that the six-year statute of limitations governs an action for indemnification only when there is contractual privity between the parties. Although the court in Capolino mentioned the contractual relations between the negligent employee and the insured employer as one basis for the “implied contract” of indemnification, the court also relied upon the broader rule that “A person who, without fault, has become subject to tort liability for the unauthorized act and wrongful conduct of another, is entitled to indemnity from the other for expenditures properly made in the discharge of such liability.” Ohio Casualty Insurance Co. v. Capolino, supra 65 N.E.2d at 289 ,quoting Restatement of Restitution, p. 418. We have found nothing in Ohio law indicating that, for purposes of determining the applicable statute of limitations in indemnification actions based on primary and secondary liability, a distinction should be drawn between eases involving parties in privity of contract and those where the parties in fact have no contractual relationship. In either case, the reason for recognizing an “implied contract” of indemnification is not that an agreement to indemnify is implied in fact but, instead, that equitable principles of fairness require the party primarily liable to compensate a party only secondarily or vicariously liable who has been compelled to pay damages that the former should in equity bear. In either case, the existence or non-existence of privity of contract is immaterial in determining the applicable statute of limitations. Cf. Perry County v. Newark S. & R. Co., 43 Ohio St. 451, 2 N.E. 854 (1885); Hansen v. City of New York, 43 Misc.2d 1048, 252 N.Y.S.2d 695 (1964). Accordingly, we hold that under Ohio law, the six-year statute of limitations applies to an action for indemnification arising where a party secondarily liable has been compelled to pay damages that should have been borne by a party primarily liable, even if the parties are not in fact in privity of contract. Reversed and remanded for proceedings not inconsistent with this opinion. . Ohio Revised Code § 2305.07. . Ohio Revised Code § 2305.10. 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_usc2sect	151	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 second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 29. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA". GOLAY & CO., Inc., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. No. 18666. United States Court of Appeals, Seventh Circuit. July 28, 1971. D. Reed Seism, William E. Roberts, Indianapolis, Ind., for Golay & Co., Inc., petitioner; Roberts & Ryder, Indianapolis, Ind., of counsel. Marcel Mallet-Prevost, Asst. Gen. Counsel, Marvin Roth, Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Allison W. Brown, Jr., Attys., National Labor Relations Board, Washington, D. C., for respondent. Before HASTINGS, Senior Circuit Judge, and KILEY and FAIRCHILD, Circuit Judges. KILEY, Circuit Judge. This is the second time this proceeding has been before the court. In Nos. 15540 and 15656, Golay & Co. v. NLRB, 371 F.2d 259 (7th Cir. 1966), cert. denied, 387 U.S. 944, 87 S.Ct. 2079, 18 L.Ed.2d 1332, we enforced the Board’s order with respect to Section 8(a) (3) and (1) violations of the National Labor Relations Act, 29 U.S.C. § 151, et seq., by respondent (Company) covering 19 of 42 employees. We did not adopt the Board’s opinion or enforce its order with respect to 23 other employees whom the Board found, contrary to the Examiner’s finding, were also discharged in violation of 8(a) (3) and (1), but we did approve the reinstatement of these employees under NLRB v. Thayer Co., 213 F.2d 748 (1st Cir. 1954), cert. denied, 348 U.S. 883, 75 S.Ct. 123, 99 L.Ed. 694. We enforced the order as modified and remanded for further proceedings. The Supplemental Decision and Order now before us followed, awarding to the reinstated employees $158,700.74 back pay. The Company has petitioned for review and the Board has cross-petitioned for enforcement. The Supplemental Decision and Order will be enforced. During the lunch period on November 19, 1962, a group of employees agreed to, and did, punch in and refuse to work until a fellow employee Paris, unlawfully discharged that morning, was reinstated. Thereafter, 34 employees were discharged by the Company for refusing to work. The next morning, November 20, a picket line formed. As a result of alleged “misconduct” involving the picket line, the Company refused to rehire 8 other strikers when they offered to return to work. The unfair labor practice complaint followed. The Trial Examiner’s original decision was that 19 of the 34 discharges on November 19 violated Sections 8(a) (3) and (1) since the protest strike was protected activity, but that the remaining 15 were lawfully discharged for in-plant misconduct prior to their discharge that afternoon. He also found that 11 of the 19 unlawfully discharged employees were guilty of post-discharge misconduct on the same day and that these 11 were not entitled to reinstatement. The Trial Examiner further found that 8 other employees who were discharged for picketing on the morning of November 20 were entitled to reinstatement, since either they were not involved in any misconduct on the picket line or their misconduct was condoned. The Board, however, found that all 42 employees were wrongfully discharged or refused reinstatement in violation of 8(a) (3) (1) and were entitled to back pay. The Board alternatively concluded that, assuming the strikers’ conduct to be unprotected, it “was not of such serious nature in the total circumstances of this case to warrant denial of their reinstatement” when measured against the Company’s “massive unfair labor practices.” Our earlier opinion followed. We decided that 19 employees did not participate in the in-plant misconduct November 19 until after they were discharged and that this fact justifies the Board order finding an 8(a) (3) and (1) violation. As to the remaining 23 employees, we applied the balancing rule of NLRB v. Thayer Co., 213 F.2d 748 (1st Cir. 1954), cert. denied, 348 U.S. 883, 75 S.Ct. 123, 99 L.Ed. 694, and found in agreement with the Board that their misconduct, measured against the “massive” Company unfair labor practices, was no bar to reinstatement. Our enforcement of the order as “modified” and the Supplemental Order now before us followed. I. The main issue presented to us is whether back pay should have been tolled from the time of the Trial Examiner’s decision to the Board’s decision for the 23 employees whom the Examiner had found were not entitled to reinstatement and whose discharge was not found unlawful by this court. The Company relies for its argument that back pay should have been tolled upon the Board’s supplemental decision and order in Kohler Co., 148 N.L.R.B. 1434 (1964), enf’d, 120 U.S.App.D.C. 259, 345 F.2d 748 (1965), and Ferrell-Hicks Chevrolet, Inc., 160 N.L.R.B. 1692 (1966). The Company does not now challenge the reinstatement of the 42 employees. They have long since been reinstated. It challenges only the failure of the Board on remand to apply the tolling principle in awarding back pay. We deem it necessary to discuss only the decision in Ferrell-Hicks in rejecting the challenge. There the Company claimed error in the Board’s failure to toll employee Burinskas’ back pay between the Board’s decision favoring the Company and the court of appeals’ (sub nom Burinskas v. NLRB, 123 U.S. App.D.C. 143, 357 F.2d 822 (1966)) eventual enforcement of the Board’s supplemental decision adverse to the Company. The court of appeals in enforcing the Board’s supplemental decision discussed at length the Board’s varying practices and the lack of clarity in its decisions with respect to the tolling question : Before A. P. W. Products Co., Inc., 137 N.L.R.B. 25 (1962), enf’d, 316 F.2d 899 (2nd Cir. 1963), back pay was tolled for the period from the issuance of the Examiner’s decision favorable to the Company to the Board’s decision reversing that determination; not tolled at all thereafter until Walls Mfg. Co., Inc., 137 N.L.R.B. 1317 (1962), enf’d, 116 U.S. App.D.C. 140, 321 F.2d 753 (1963); and finally tolled only in “unique” or “unusual” cases under Kohler Co., supra. The court remanded to the Board for development of “at least minimal” standards for the Board’s exercise of discretion. The standards the Board set on remand are: (1) In 8(a) (3) cases, after determination of fact by the final reviewing authority that an employer has discharged an employee with the unlawful intent of discouraging union activities, there are no equitable considerations available to the employer “wrongdoer” — even if he has relied on an earlier favorable decision to refuse reinstatement — to justify withholding the diseriminatee’s pay and there is no tolling of back pay. (2) In cases of other unlawful labor practices of an employer, where there is no unlawful intent which “so compellingly fixes the equity” in favor of the discriminatee as in 8(a) (3) cases, the Board will consider “any special factors” which render full back pay inappropriate to effectuate the policies of the Act. Ferrell-Hicks Chevrolet, Inc., supra at 1694 ff. The fact that in our earlier decision we did not expressly adopt the Board’s order that the discharges of the 23 employees were Section 8(a) (3) and (1) violations does not per se compel tolling their back pay under the Ferrell-Hicks guidelines. The misconduct for which they were discharged and denied reinstatement was “triggered” by “massive” unfair labor practices. Even if their discharges were without an unlawful intent, the Board has, under Section 10(c) of the Act, “broad discretion” in fashioning the remedy for an employer’s unfair labor practices, NLRB v. Thayer Co., supra, 213 F.2d at 753; see Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203, 215-216, 85 S.Ct. 398, 13 L.Ed.2d 233 (1964), and no “special factors” are urged by the Company as to why it would be inequitable to burden it with the financial consequences of its unlawful practices in order to restore the status quo ante, see NLRB v. Rutter-Rex Mfg. Co., 396 U.S. 258, 90 S.Ct. 417, 24 L.Ed.2d 405 (1969). In Kohler the Board initially denied reinstatement of the strikers because of unprotected acts of misconduct on their part and because there was no unlawful intent on the part of the employer. The court of appeals set aside the Board’s denial of reinstatement because of its failure to apply the Thayer doctrine. On remand the Board reinstated all of the strikers, but decided in its discretion, under the special circumstances of the case, Kohler should not be burdened with the back pay liability for the period before the court of appeals decision. The special factor in Kohler was that the employer was not fully advised of the law concerning his refusal to reinstate the strikers until the court of appeals decision, since the Board had not accepted the Thayer principle as applicable to the case. Under its discretionary power the Board justified tolling the Kohler strikers’ back pay. But the Company here has not shown that it could reasonably have expected the Board would approve the Examiner’s findings and conclusions as to the 23 by “adhering to a particular view of the law,” since the Examiner, Board and the court applied Thayer throughout this proceeding. And the equities between the Company and the employees did not “draw close * * * to equilibrium” since the employees’ misconduct was triggered by the employer’s “massive” unfair labor practices. II. There is no merit in the Company’s contention that the Board erroneously used the “quarterly computation method” in determining net back pay due to the 42 employees. The quarterly computation method was established in F. W. Woolworth, 90 N.L.R.B. 289 (1950), for that case and future cases and was approved by the Supreme Court in NLRB v. Seven-Up Bottling Co., 344 U.S. 344, 73 S.Ct. 287, 97 L.Ed. 377 (1953); it is the “usual formula” for the computation of net back pay. NLRB v. Rutter-Rex Mfg. Co., 396 U.S. 258, 261, 90 S.Ct. 417, 24 L.Ed.2d 405 (1969). Use of the formula in this case is not “oppressive” nor “not calculated to affect the policy of the Act.” NLRB v. Seven-Up Bottling Co., swpra., 344 U.S. at 349, 73 S.Ct. at 290. The Company has shown no special circumstances, such as operation of a business where earnings fluctuate according to season, to justify a different method of computation. During the back pay period the Company gave three wage increases to employees in the 500 Department where the 42 employees before us had worked. The Company argues — but has not persuaded us — that the awards erroneously included these increases. Evidence was introduced as to the general requirements for receipt of the pay increase, but no evidence was introduced as to which of the 42 employees who were discharged would have received the increase had they been working at the time. The Board held that the General Counsel having included the wage increase in the back pay allegation, the Company was obligated to plead with specificity, and prove, that the individual claimants would not have merited the increase. Since no evidence was introduced on this point, the Board held for the General Counsel and ordered that the wage increases be included in the back pay award. We think the Board properly decided — ■ contrary to the ruling of the Examiner— that the General Counsel did not have the burden of proof to establish these facts mitigating the employer’s liability. See Marlene Industries Corp. v. NLRB, 440 F.2d 673, 674 (6th Cir. 1971). The information upon which qualifications for the raises were made was peculiarly in the possession of the Company, and the Company was responsible for the 42 employees losing the opportunity to qualify for the increase. See NLRB v. Miami Coca-Cola Bottling Co., 360 F.2d 569, 572-573 (5th Cir. 1966). The Board decided — contrary to the Examiner — that employees Frady, Harrison and Jamieson made reasonably diligent searches for employment in the back pay period. We are not persuaded that this decision was erroneous. The test is not whether an employee worked in the period or what he earned, per se, but whether in mitigation of his loss of earnings he made an “honest good faith effort.” NLRB v. Cashman Auto Co., 223 F.2d 832, 836 (1st Cir. 1955). The record furnishes a substantial basis for the Board’s conclusions that each of the three made a reasonably diligent effort to obtain employment on his own and by registration at Indiana State Employment Security Division. Frady was told that the agency could not refer him because the Company discharged him for misconduct. Jamieson and Harrison also registered, without success. We think the Board could find that the employees’ discharges for misconduct were substantial barriers to their success in mitigating their loss of pay. Furthermore, these employees, each of whom was in his fifties when the Trial Examiner made his decision and lacked a high school education, applied for jobs at various businesses in the area. Two of them — Frady and Jamie-son — eventually obtained full-time employment, and the third, Harrison, held various part-time jobs throughout the period. We see no abuse of discretion in finding that they were reasonably diligent in seeking employment in the back pay period. See Marlene Industries Corp. v. NLRB, supra, at 674. We also think the Board’s treatment of employee Tyree is justified by the record. Before his discharge Tyree worked evenings as part-time employee of an oil company for a seven-week period. In the back pay period he became a full-time oil company employee, left that oil company for another as a full-time employee, returned to work full-time for the first company, left again to operate a gas station under a franchise, later formed a partnership in a service station — a venture which failed —and resumed operation of a service station until reinstated under the Board’s order. The Board excluded from earnings, in determining his net back pay award, one-fourth of his full-time employment with the first oil company, as a continuation of his pre-discharge part-time employment. We think that the Board’s determination was not unreasonable under the circumstances. Finally, the Board could properly decline to deduct from back pay benefits employees received from their union in the relevant period, since the employees furnished no services, such as picketing, in exchange for the union payments. Florence Printing Co. v. NLRB, 376 F.2d 216, 219-220 (4th Cir. 1967), cert. denied, 389 U.S. 840, 88 S.Ct. 68, 19 L.Ed2d 104; NLRB v. Rice Lake Creamery Co., 124 U.S.App.D.C. 355, 365 F.2d 888, 893 (1966). The Supplemental Decision and Order will be enforced. . “Thayer holds that where an employer who has committed unfair labor practices discharges employees for unprotected acts of misconduct, the Board must consider both the seriousness of the employer’s unlawful acts and the seriousness of the employees’ misconduct in determining whether reinstatement would effectuate the policies of the Act.” Local 833, UAW-AFL-CIO v. NLRB, 112 U.S.App.D.C. 107, 300 F.2d 699, 702-703 (1962), cert. denied, Kohler Co. v. Local 833, UAW-AFL-CIO, 370 U.S. 911, 82 S.Ct. 1258, 8 L.Ed. 2d 405. . The Company argues that the back pay of the 23 employees whose reinstatement we ordered — without considering whether their discharge (or failure to be rehired) was an 8(a) (3) and (1) violation — should be tolled from the time of the favorable decision by the Trial Examiner and the overruling of that decision by the Board. However, the Examiner ordered the reinstatement of the 8 employees who were not rehired because of their November 20 conduct, and therefore there was no decision favorable to the Company with respect to these employees. . The Board was also directed to determine whether Burinskas’ back pay should be tolled. Upon remand the Board did not toll Burinskas’ back pay because it had been “ultimately found” that Ferrell-Hicks had unlawfully discharged him and had discouraged union activity among its employees. . Ferrell-Hicks Chevrolet, Inc., 160 N.L.R.B. 1692, 1698 (1966). . The quarterly periods begin the first day of January, April, July and August. The net loss of pay is determined for each quarter or portion thereof and the earnings for one quarter are to have no effect on the liability for any other quarter. NLRB v. Seven-Up Bottling Co., 344 U.S. 344, 345, 73 S.Ct. 287, 97 L.Ed. 377 (1953). . The mere fact of the two and a half year delay between the Examiner’s decision and that of the Board does not per se justify blaming the delay on the Board. This court has, absent a showing otherwise, placed the blame on the “unfortunate but inevitable” delay in the procedures under the Act. NLRB v. Kostel Corp., 440 F.2d 347, 353 (7th Cir. 1971). See also New Alaska Development Corp. v. NLRB, 441 F.2d 491 (7th Cir. 1971). . One increase was given to 80 of 100 employees, the second to 51 of 146 employees, and the third to 52 of 105 employees, all without limitation to classification or grade. Question: What is the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 29? Answer with a number. Answer:
songer_casetyp1_7-2	E	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation". JEFFERSON RADIO COMPANY, Inc., Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Appellee, W. D. Frink, t/a Jefferson Radio Company, Permittee of Station WIXI, Irondale, Alabama, Intervenor. JEFFERSON RADIO COMPANY, Inc., Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, W. D. Frink, t/a Jefferson Radio Company, Permittee of Station WIXI, Irondale, Alabama, Intervenor. Nos. 18296, 18297. United States Court of Appeals District of Columbia Circuit. Argued June 19, 1964. Decided July 30, 1964. Mr. Russell Rowell, Washington, D. C., with whom Mr. Henry R. Goldstein, Washington, D. C., was on the brief, for appellant-petitioner. Mr. Marvin Rosenberg, Washington, D. C., also entered an appearance for appellant-petitioner. Mr. Michael Finkelstein, Counsel, Federal Communications Commission, with whom Mr. Max D. Paglin, Gen. Counsel, Federal Communications Commission at the time the brief was filed, and Mr. Daniel R. Ohlbaum, Associate Gen. Counsel, Federal Communications Commission, were on the brief, for appelleerespondents. Mr. Henry Geller, Gen. Counsel, and Mrs. Ruth V. Reel, Atty., Federal Communications Commission, also entered appearances for appellee-respondents. Mr. Maurice R. Barnes, Washington, D. C., entered an appearance for intervenor W. D. Frink, t/a Jefferson Radio Co., Permittee of Station WIXI, Iron-dale, Alabama. Before Wilbur K. Miller, Fahy and Bastían, Circuit Judges. BASTIAN, Circuit Judge: This appeal and petition for review involve a dismissal by the Federal Communications Commission of an application for assignment of a construction permit filed by the appellant-assignee. In 1956, mutually exclusive proposals for a construction permit for a standard broadcast station were submitted by W. D. Frink, t/a Jefferson Radio Company, intervenor, and Bessemer Broadcasting Company, Inc., controlled by one Dorsey E. Newman. Following extensive hearings and proceedings before the Commission and a remand to the hearing examiner for further hearing, the applicants agreed to resolve their differences and merge their interests. On December 19, 1959, an agreement was entered into by the two parties, providing in pertinent part that in return for an option to secure a one-half interest in Frink’s proposed station at Iron-dale, Alabama (WIXI), Bessemer would dismiss its conflicting application. The agreement further provided for the disposal by Bessemer of its interest in its station at Bessemer, Alabama (WEZB). The merger agreement was duly filed with the Commission, and the subsequent sale of WEZB by Bessemer was approved. On October 12, 1960, the Commission granted Frink’s application for a construction permit and dismissed Bessemer’s application, observing that “there is nothing about the arrangements and contemplated transactions between the parties which would reflect adversely upon either Bessemer or Jefferson.” Jefferson Radio Co., 299 F.C.C. 873, 877 (1960). In November 1960, Frink filed an application for license to cover his construction permit. In January 1961, an application was filed requesting the Commission’s consent to the assignment of Frink’s construction permit to Jefferson Radio Company, Inc. (appellant), a newly formed corporation jointly owned by Frink and Newman, and seeking to effectuate the merger agreement between Frink and Bessemer. Before any action was taken by the Commission on the assignment application, however, certain questions arose regarding Frink’s activities and his qualifications to be a licensee. A hearing was held on Frink’s license application and, on September 13, 1963, the Commission adopted the hearing examiner’s initial decision that the application should be denied. The Commission further ordered Station WIXI to cease operations on December 11, 1963 (which deadline subsequently was extended to January 1, 1964). Frink’s petition for reconsideration was denied on December 2, 1963. Thereupon, appellant, together with Frink, filed a “Petition for Extension of Authorization” on December 5, 1963. As relates to the problem here, that petition called attention to the still pending assignment application, noting that, in view of the Commission’s decision regardingFrink’s license qualifications, Frink’s interest in the appellant corporation would be eliminated. It was requested that Frink be permitted to operate his station until an appropriate amendment to> the assignment application was prepared and submitted to the Commission. On December 9, 1963, the Commission denied the petition, observing that “the application for assignment of construction permit [has] been rendered moot by our denial of the application for license.” Subsequently, the Commission (1) on December 19, 1963, denied appellant’s petition for reconsideration of the denial of Frink’s license application and request for stay of that decision; and (2) on December 30, 1963, denied appellant’s second petitions for stay and for reconsideration and dismissed appellant’s application for assignment of the construetion permit. This appeal and petition for review followed. Appellant argues that the Commission ■erred (1) in terminating the instrument ■of authorization of Station WIXI without first considering appellant’s assignment application on its merits; and (2) by refusing to permit appellant to amend its assignment application. We are of the opinion, however, that the Commission’s decisions were fully warranted. It is the recognized policy of the Commission that assignment of broadcast authorization will not be considered until the Commission has determined that the assignor has not forfeited the authorization. We feel that the Commission’s deferral of consideration of appellant’s assignment application was entirely consistent with this policy. While it is true that the assignment application here had been filed prior to the Commission’s setting a date for the hearing on Frink’s license application, we do not think the Commission was required to consider the assignment application first. Subsequently, when Frink’s authority to operate Station WIXI was terminated by the Commission’s denial of his license application, Frink had no authorization susceptible of transfer by him; the authorization had, in effect, “reverted” to the Commission. As a result, no hearing on the assignment application was necessary since the basis of the application had disappeared. We do not feel that appellant’s posture as potential assignee of Frink’s authority to operate Station WIXI is such as to require the Commission to permit the filing of, and to consider, an amended assignment application in this case. On the basis' of the record before us, we are of the opinion that, in No. 18296, the orders of the Commission should be affirmed. The issues raised by Jefferson being appropriate to an appeal under 47 U.S.C. § 402(b) (3), the petition for review under 47 U.S.C. § 402(a) in No. 18297 is dismissed. Rhode Island Television Corp. v. F.C.C., 116 U.S.App.D.C. 40, 44, 320 F.2d 762, 766 (1963); Functional Music, Inc. v. F.C.C., 107 U.S.App.D.C. 34, 38, 274 F.2d 543, 547 (1958), cert. denied 361 U.S. 813, 80 S.Ct. 50, 4 L.Ed.2d 81 (1959). No. 18296 is affirmed. No. 18297 is dismissed. . Cf., e.g., Broadcasting Service Organization, 11 F.C.C. 1057, 1073, adopted en banc, 12 F.C.C. 260 (1947), aff’d, 337 U.S. 901, 69 S.Ct. 1047, 93 L.Ed. 1715 (1949), reversing 84 U.S.App.D.C. 152, 171 F.2d 1007; G. A. Richards, 14 F.C.C. 429, 430-431 (1950); Tidewater Teleradio, 24 Pike & Fischer, R.R. 653, 657 (1962). . Appellant does not challenge the Commission's denial of Frink’s license application, and no appeal from that decision has been taken. . Cf. Bendix Aviation Corp., Bendix Radio Division v. F. C. C., 106 U.S.App.D.C. 304, 272 F.2d 533, cert. denied sub nom. Aeronautical Radio, Inc. v. United States, 361 U.S. 965, 80 S.Ct. 593, 4 L.Ed.2d 545 (1960). See also Transcontinent Television Corp. v. F. C. C., 113 U.S.App.D.C. 384, 308 F.2d 339 (1962). . Appellants urge that Churchill Tabernacle v. F. C. C., 81 U.S.App.D.C. 411, 160 F.2d 244 (1947), requires the Commission to permit appellant to file, and to consider, an amended assignment application here. That case, however, is readily distinguishable from the one before us. There the Commission, after having approved a contract provision for more than ten years between a broadcast licensee and Churchill Tabernacle, reversed itself and ordered the contract provision cancelled. As a consequence, the Tabernacle, which had made substantial non-reeoverable investments during the time the contract had been in effect, was threatened with serious economic in-injury. In reversing the Commission, this court observed “that valuable rights and investments made in reliance on a license of the. Federal Communications Commission should not be destroyed except for the most compelling reasons.” 81 U.S.App.D.C. at 414, 160 F.2d at 247. In this case, however, (1) no reversal of an earlier determination by the Commission vis-a-vis appellant is involved; (2) appellant cannot assert a “reliance” on its existing interests in an already issued license since the assignment agreement with Frink was wholly contingent on the Commission’s approval; and (3) it seems that appellant is not foreclosed from applying directly for the authorization earlier held by Frink. 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_r_stid	01	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Your task is to identify the state of the first listed state or local government agency that is a respondent. The NATIONAL ASSOCIATION OF BROADCASTERS, Petitioner, v. COPYRIGHT ROYALTY TRIBUNAL, Respondent, Multimedia Entertainment, Inc., Old-Time Gospel Hour, Motion Picture Association of America, Inc., et al., Su-perstation, Inc., Intervenors. The CHRISTIAN BROADCASTING NETWORK, INC., Petitioner, v. COPYRIGHT ROYALTY TRIBUNAL, Respondent, Turner Broadcasting System, Inc., Multimedia Entertainment, Inc., Old-Time Gospel Hour, Inc., Canadian Broadcasting Corporation, et al., Motion Picture Association of America, Inc., et al., National Association of Broadcasters, In-tervenors. Nos. 84-1230, 84-1232 to 84-1234, 84-1238, 84-1396, 84-1398 to 84-1401, 84-1519, 84-1525, 84-1526, 84-1529 to 84-1531 and 84-1535. United States Court of Appeals, District of Columbia Circuit. Argued May 6, 1985. Decided Aug. 30, 1985. Victor E. Ferrall, Jr., Washington, D.C., with whom John I. Stewart, Jr., David H. Solomon, Henry L. Baumann and Michael D. Berg, Washington, D.C., were on brief for petitioner/intervenor, Nat. Ass’n of Broadcasters, in Nos. 84-1230, et al. W. Thad Adams, III, Charlotte, N.C., with whom John H. Midlen, Jr., Washington, D.C., was on joint brief for petitioners/intervenors, PTL Television Network and Old Time Gospel Hour, in Nos. 84-1230, et al. Arthur Schemer, Washington, D.C., with whom Dennis Lane and Richard H. Ways-dorf, Washington, D.C., were on brief for petitioners/intervenors, Motion Picture Ass’n of America, Inc., et al., in Nos. 84-1230, et al. I. Fred Koenigsberg, New York City, with whom Bernard Korman, New York City, for American Soc. of Composers, Authors and Publishers, et al. and Charles T. Duncan, Michael W. Faber, Lisa Holland Powell, Washington, D.C., for Broadcast Music, Inc., were on joint brief, for petitioners/intervenors, music claimants, in Nos. 84-1230, et al. Grover C. Cooper, Clifford M. Harrington and Barry Gottfried, Washington, D.C., were on brief for petitioner/intervenor, The Christian Broadcasting Network, Inc., in Nos. 84-1230, et al. David H. Lloyd, Robert Alan Garrett, Washington, D.C., for Major League Baseball; Philip R. Hochberg, Washington, D.C., for Nat. Basketball Ass’n, et al. and Judith Jurin Semo, Washington, D.C., for Nat. Collegiate Athletic Ass’n were on joint brief for petitioners/intervenors, joint sports claimants, in Nos. 84-1230, et al. Gene A. Bechtel, Lawrence A. Horn and Jacqueline Weiss, Washington, D.C., were on brief for petitioner/intervenor, Public Broadcasting Service, in Nos. 84-1230, et al. and Nos. 84-1519, et al. Clifford M. Harrington, Washington, D.C., with whom Grover C. Cooper and Barry H. Gottfried, Washington, D.C., for The Christian Broadcasting Network, Inc. and W. Thad Adams, III, Charlotte, N.C., and John H. Midlen, Washington, D.C., for PTL Television Network and Old-Time Gospel Hour were on the joint brief for petitioners/intervenors in Nos. 84-1519, et al. Arnold P. Lutzker, Washington, D.C., with whom Carolyn A. Wimbly, Washington, D.C., were on briefs for intervenor, Multimedia Entertainment, Inc., in Nos. 84-1230, et al. and Nos. 84-1519, et al. Dennis Lane, Washington, D.C., with whom Arthur Schemer, Robert A. Garrett, Jamie S. Gorelick, Charles T. Duncan, Michael W. Faber, Washington, D.C., and Bernard Korman, New York City, were on joint brief for petitioners/intervenors, Motion Picture Ass’n, Inc., et al. Douglas G. Thompson, Jr., Washington, D.C., was on brief for petitioners/inter-venors, Canadian Broadcasting Corp., et al., in Nos. 84-1519, et al. and Nos. 84-1230, et al. William G. Cole, Atty., Dept, of Justice, Washington, D.C., with whom Richard K. Willard, Acting Asst. Atty. Gen., and John F. Cordes, Atty., Dept, of Justice, Washington, D.C., were on brief for respondent, Copyright Royalty Tribunal, in Nos. 84-1230, et al. Mark W. Pennak and William Kanter, Attys., Dept, of Justice, Washington, D.C., also entered appearances for respondent, Copyright Royalty Tribunal, in Nos. 84-1230, et al. Marilyn S.G. Urwitz, Atty., Dept, of Justice, Washington, D.C., with whom Richard K. Willard, Acting Asst. Atty. Gen., and William Kanter, Atty., Dept, of Justice, Washington, D.C., were on brief for respondent, Copyright Royalty Tribunal, in Nos. 84-1519, et al. Jamie S. Gorelick, Washington, D.C., was on brief for intervenor/petitioner, Nat. Public Radio, in Nos. 84-1230, et al. Peter H. Feinberg, Washington, D.C., entered an appearance for intervenor, Supers-tation, Inc., in Nos. 84-1230, et al. and intervenor, Turner Broadcasting System, Inc., in Nos. 84-1519, et al. Victor E. Ferrall, Jr., John I. Stewart, David H. Solomon, Henry L. Baumann and Michael D. Berg, Washington, D.C., entered appearances for intervenor, Nat. Ass’n of Broadcasters, in Nos. 84-1519, et al. Meredith S. Senter, Jr., and Edwina E. Dowell, Washington, D.C., entered appearances for intervenor, SIN, Inc., in Nos. 84-1519, et al. Before EDWARDS, SCALIA and STARR, Circuit Judges. Opinion for the Court filed by Circuit Judge STARR. STARR, Circuit Judge: These two cases — one consisting of ten consolidated petitions for review, National Ass’n of Broadcasters v. Copyright Royalty Tribunal, C.A. Nos. 84-1230 et al., the other of seven consolidated petitions, Christian Broadcasting Network, Inc. v. Copyright Royalty Tribunal, C.A. Nos. 84-1519 et al. — return us once again to the increasingly familiar terrain of copyright royalty awards made by the Copyright Royalty Tribunal (“CRT” or “Tribunal”), a government entity established by the 1976 Copyright Act, 17 U.S.C. §§ 101-810 (1982). These cases represent the court’s third foray in as many years into this hotly contested territory, characterized by lively competition for the ever increasing annual cache of royalty dollars for cable retransmission of copyrighted programs. For the reasons that follow, we uphold the decisions under challenge and accordingly deny the petitions for review. I. Background In view of our two prior decisions in appeals from royalty-distribution determinations by the Tribunal, see National Ass’n of Broadcasters (NAB) v. CRT, 675 F.2d 367 (D.C.Cir.1982) (reviewing the Tribunal’s first distribution determination, for calendar year 1978); Christian Broadcasting Network, Inc. (CBN) v. CRT, 720 F.2d 1295 (D.C.Cir.1983) (reviewing the CRT’s second annual distribution, for calendar year 1979), it would serve little purpose to rehearse in detail the history of the establishment and operation of the Tribunal and the Royalty Fund. Suffice it to say that in determining the manner in which owners of copyrighted programs would be compensated for cable retransmission of their programming, Congress elected to require cable operators periodically to pay royalties into a central fund, from which the Tribunal distributes the allocated amounts to copyright owners-claimants in annual proceedings. The Copyright Act contemplates that claimants may settle their respective claims, but in each of the first five distributions to date a controversy has emerged requiring CRT resolution. With these consolidated cases, four of those five distributions have been appealed to this court. At the outset, we observe what is common ground among the parties, namely that the nature of our review of CRT decisions is quite limited. A royalty determination is scarcely a typical agency adjudication. When claimants cannot agree among themselves on the appropriate distribution of the fund, they present their cases to the CRT, which resolves the dispute. Any particular royalty percentage established by the Tribunal is, moreover, doomed to be somewhat artificial; that is, it may well appear that it would have been as reasonable for the Tribunal to have fixed the percentage a little higher or a little lower. As we have previously suggested, mathematical exactitude in these matters appears well nigh impossible, NAB v. CRT, supra, 675 F.2d at 373; rough justice in dividing up the royalty pie seems to be the inevitable result of the process that Congress ordained. In reviewing the Tribunal’s determinations, the judicial task is not to weigh the evidence and fix what in our view would constitute appropriate percentages, for that would be to intrude into the function entrusted to the Tribunal. Our job, rather, is to determine whether the royalty awards are within a “zone of reasonablenesss”— not unreasonably high or unreasonably low — and that the CRT’s decision is neither arbitrary nor capricious, and is supported by substantial evidence. NAB v. CRT, supra, 675 F.2d at 371, 374-75. II. Appeals From 1979 Proceedings As with the Tribunal’s first allocation (for calendar year 1978), much of the Tribunal’s 1979 allocation was appealed to this court in CBN v. CRT, supra, 720 F.2d 1295. The CRT’s allocation was upheld in all but three respects, namely, the Tribunal’s decision to award no portion of the Royalty Fund to three separate groups of claimants: (1) the Devotional Claimants, (2) commercial radio broadcasters, and (3) television broadcasters for their contribution to the quality of sports telecasts. On remand, the CRT reconsidered those three non-awards. The Tribunal reaffirmed its decision to award nothing to commercial radio broadcasters and to television broadcasters for the latter’s contribution to sports telecasts; however, the Tribunal altered the Devotionals’ zero award so as to grant them 0.35% of the total Royalty Fund. The award to the Devotionals and the reaffirmed non-award to commercial radio are now before us. A. The Devotional Claimants’Award The Devotionals contend that the record evidence demonstrates that their award should have been much higher than a measly 0.35%; in contrast, several petitioners, including the Motion Picture Association of America (“MPAA”) and the Public Broadcasting Service (“PBS”), claim that the Tribunal did not have before it evidence to support any award to this group of claimants. In the view of these challengers, the Tribunal was correct the first time around in awarding nothing to the Devotionals. Next, moving beyond the debate over zero versus something, both the Devotionals and their opponents join, albeit from quite different perspectives, in the claim that the Tribunal gave no indication as to how it arrived at the figure of 0.35%. Hence, the Tribunal is attacked from all sides for having, in effect, pulled a number out of the air. In CBN v. CRT, supra, we identified several specific arguments and pieces of evidence that the CRT failed to address in making its non-award to the Devotional Claimants, thus rendering its decision arbitrary. 720 F.2d at 1309-12. On remand, the Tribunal addressed each of these points, and, as we will demonstrate, adequately responded to them. (D First, we criticized the Tribunal for having failed to analyze the possible benefits that cable operators might enjoy by carrying the Devotionals’ programs. In establishing appropriate royalty percentages, the CRT considered as a major criterion the benefit of the programming to cable systems, yet the Tribunal had not even discussed this criterion in reaching its 1979 decision on the Devotionals. We stated that evidence of record did exist, that the CRT was obliged to address, of benefit to cable systems. Id. at 1310. On remand, the Tribunal stated that “some evidence” supported the proposition that devotional programming was of benefit to cable systems, but that “none of this evidence, in our view, significantly bolsters the devotional claims on the benefit standard, or can remotely be deemed similar to that which we have found to be supportive of the case of sports claimants.” 49 Fed. Reg. 20,049, J.A. at 2210 (footnote omitted). The CRT thus concluded that the record did not support a finding that cable operators welcomed the inclusion of devotional programs on distant signals to balance the carriage of non-religious programs. Id. The Devotionals now claim that CRT’s decision in this respect is conclusory, totally devoid of analysis as to why the Devotionals’ evidence did not prove benefit. We disagree. In support of its conclusion, the CRT relied upon the analysis of the Devotional Claimants’ evidence set forth in the Settling Parties’ Proposed Findings at 28-29, J.A. at 2289-90. That analysis constituted a responsive critique to the evidence this court had identified as meriting the CRT’s consideration and discussion on remand, see 720 F.2d at 1310. The Settling Parties’ analysis concluded that, for various reasons, the Devotionals’ evidence was, in the first instance, weak and in any event was directly contradicted by evidence introduced by other parties. While one could reasonably disagree with the Settling Parties’ analysis, as the Devotionals fervently do, the Tribunal could reasonably invoke that analysis of the evidence adduced by the Devotional Claimants. (2) We also indicated in our prior decision that the Tribunal had failed to provide an adequate justification for treating the Devotionals’ claims in a manner different from that accorded the claim of PBS. Id. On remand, the CRT elaborated on its reasons for this difference in treatment: The Devotional Claimants present only a single program while public broadcasting offers a range of programs, that in its diversity attracts a broad range of audience. The carriage of the public broadcasting signals indicates the appeal of their programing [sic]. Devotional pro-grammming [sic] is but a small portion of a distant signal. Therefore, the carriage of that signal does not establish the appeal of devotional programming. 49 Fed.Reg. 20,050, J.A. at 2211. That is to say, inasmuch as a PBS station carries only PBS programming, the Tribunal concluded that a cable operator’s decision to carry a PBS station reflects a judgment that PBS programming is of value. On the other hand, the decision to carry a station that carries one or more programs of the Devotional Claimants does not necessarily represent a determination by the cable operator that it was the devotional portion of that station’s programming which was deemed valuable. Since the vast majority of that station’s programming would be non-devotional, the Tribunal could reasonably conclude that it is more likely that the station was being carried by the cable operator because of its other, nondevotional shows. (3) In the 1979 proceeding, the Devotionals had claimed that because of the retransmission of local stations carrying their programming, cable operators were less likely to carry the satellite networks of CBN and PTL. The upshot of this, the Devotionals contended, was less viewing of Devotional programming and fewer contributions to the Devotional Claimants than would otherwise obtain. The CRT had initially ruled that such a loss was not compensable; on review, however, this court held that if the Devotional Claimants could prove “that cable retransmission has measurably diminished their ability to exploit the contribution potential of their particular works, whether by satellite or otherwise,” they could be compensated for such losses. 720 F.2d at 1312. At the same time, however, we noted that “proving such an attenuated loss would be extremely difficult.” Id. Because the Tribunal had not even considered the Devotionals’ evidence on this claim, we remanded the issue. On remand, the Tribunal concluded that no evidence in the 1979 record supported an award for harm to CBN’s and PTL’s satellite networks. 49 Fed.Reg. 20,-050, J.A. at 2211. The Devotionals attack this finding, arguing that they did in fact come forward with evidence to support their claim, and that the CRT was obliged — but failed — to address this evidence in detail. A review of the Devotionals’ evidence, J.A. at 2242-46, however, demonstrates that it does not mandate the Tribunal’s grant of an award on this ground. The evidence consists entirely of anecdotes and theories about how contributions from viewers might be diminished by cable retransmission. There was no attempt by the Devotionals to provide any estimate as to the amount of losses they were experiencing. Our prior opinion made it clear, as we have seen, that the Devotional Claimants had to prove that their contributions had “measurably diminished,” and that this would be “extremely difficult” to demonstrate, 720 F.2d at 1312. Our examination of the Devotionals’ evidence on remand persuades us that the Tribunal was justified in concluding that the Devotionals lacked probative evidence to support their claim. (4) Finally, we remanded to the CRT on two other issues. First, the Tribunal had initially held that a “fundamental distinction” existed between the Devotional Claimants and all other claimants, in that the Devotional Claimants purchase air time to carry their programs. This commercial fact of life was deemed of some considerable significance; indeed, the CRT had previously deduced from this “distinction” that devotional programming enjoyed no market value. Second, the Tribunal had previously held that the Devotional Claimants may well benefit (receive a “negative harm”) from cable retransmission by increasing financial contributions from an expanded universe of viewers. This fact was considered highly important since gifts and contributions from viewers constituted the paramount source of the Devotional Claimants’ funds. We remanded these two issues inasmuch as the Tribunal had failed to take into account possible weaknesses in its conclusions and had failed to respond to the Devotional Claimants’ arguments on these issues. 720 F.2d at 1309-11. On remand, the Tribunal stated that it remained wedded to the view that the evidence adduced was consistent with its original conclusions with respect to the “fundamental distinction” and “negative harm” factors, but that the Tribunal had, in essence, decided not to rely upon those factors in making an award. MPAA and the other claimants opposing the Devotionals’ award (and, curiously, the Devotional Claimants themselves) now contend that this decision was irrational; they argue that if the Tribunal concluded that the evidence supported findings of a “fundamental distinction” and “negative harm,” then the CRT had to weigh those factors against any possible award to the Devotionals. We disagree. It was clear from our prior decision remanding the Devotionals’ non-award that we did not find convincing the evidence supporting the “fundamental distinction” or “negative harm” theories. We now read the CRT’s decision on remand as stating that, while the Tribunal still deemed the theories of a “fundamental distinction” and “negative harm” to be plausible, the evidence of record was not strong enough to overcome this court’s criticism of those theories and thus could not justify the total denial of an award to the Devotional Claimants. The CRT on remand did not rely upon those theories, but merely stated that the evidence was “consistent with” a “fundamental distinction,” and that under a “negative harm” theory, the Devotional Claimants “may not sustain a net loss.” 49 Fed.Reg. at 20,050, J.A. at 2211. The Tribunal also stated that if evidentiary hearings were conducted in subsequent distribution proceedings, the Tribunal expected the parties to make a fuller record on those issues, id., again indicating that the evidence in the 1979 proceeding was deemed insufficient. Given this court’s clearly articulated wariness of the “fundamental distinction” and “negative harm” theories in the prior proceedings, we will not at this late date replough old ground and fault the Tribunal’s decision in this respect. (5) In sum, we are persuaded that the Tribunal adequately addressed the issues on which we remanded its prior decisions denying any award to the Devotional Claimants. Nonetheless, both the Devotional Claimants and their opponents argue that the actual award of 0.35% was arbitrary and capricious. The Devotional Claimants contend that since Nielsen viewing data indicated that devotional programming comprised 5% of all distant signal programming in 1979, and enjoyed a 1% viewing rating, the Devotionals’ award should have been somewhere between 1% and 5%. On the other hand, MPAA and its allies argue that the Tribunal did not have before it evidence supporting any award, and thus that no award should have been made to the Devotional Claimants. In addition, both the Devotionals and their opponents contend that the Tribunal gave no indication as to how it arrived at 0.35%. While we agree that the Tribunal’s decision does not expressly articulate the precise manner in which it arrived at the figure of 0.35%, the CRT's past practices and the mandate of our remand in CBN v. CRT adequately indicate that manner, and satisfactorily demonstrate that the Tribunal’s award was squarely within the zone of reasonableness. When this court remanded the 1979 proceedings, we stated that a complete non-award to a copyright holder would be “scrutinize[d] carefully,” 720 F.2d at 1305, and that a non-award for programming that received a 1% viewing rating needed more explanation, in view of the Tribunal’s position that Nielsen viewing data constituted the single most important genre of evidence. Id. at 1311. The implication of our opinion was clear: a complete non-award to the Devotional Claimants would have to be strongly justified. On remand, when considering for the first time the question whether Devotional programming benefited cable operators, the CRT stated that there was “some evidence” of benefit. 49 Fed.Reg. 20,049, J.A. at 2210. Even though it found this evidence to be weak, the Tribunal obviously concluded that it would be difficult, in the face of this courts prior decision, to grant no award at all under those circumstances. When this over-arching constraint emanating from our prior opinion is coupled with the CRT’s general methodology of fixing awards by starting with Nielsen viewing ratings for the programming in question, and then reducing the Nielsen figure for weakness in evidence, see, e.g., 47 Fed.Reg. 9892, J.A. at 38, the Tribunal’s method for determining the Devotional Claimants’ award becomes clear. Given the CRT’s general approach, an award falling somewhere below 1% (due to weakness of evidence) but above 0 (due to the presence of some evidence) was suggested by the evidence of record. Given this analysis, the zone of reasonableness for the Devotionals’ award was between 0% and 1%. The Tribunal’s award of 0.35% fell comfortably within that zone. B. Commercial Radio Cable systems retransmit the signals of radio stations, in addition to television station signals. Thus, among the hearty band of claimants for the Royalty Fund distributions were and are commercial radio broadcasters. In its original 1979 proceeding, however, the Tribunal held that it could find no significant marketplace value for or benefit from cable retransmission of distant commercial radio stations; in consequence, no award was made to commercial radio broadcasters. 49 Fed.Reg. 9894, J.A. at 40. We remanded this decision because, although we concluded that ample evidence buttressed the Tribunal’s conclusion that retransmission of radio broadcasts have little value, the CRT’s decision to grant no award to commercial radio broadcasters appeared inconsistent with the Tribunal’s decision to give some unspecified award to the Music Claimants for the use of copyrighted music on retransmitted radio signals. 720 F.2d at 1317-18. We directed the Tribunal either to provide an explanation for this difference in treatment between broadcasters and music claimants or to alter its awards. On remand, the Tribunal adhered to its original decision, but explained why it deemed different awards to be warranted. The Tribunal reaffirmed its substantive conclusion that the broadcasters’' contributions to radio retransmissions were, in essence, commercially worthless to the cable market, and that any value in the retransmission of commercial radio stations is attributable to the music played on those stations. The broadcasters’ contention that their programming formats deserved compensation was, in the CRT’s view, a claim for “compilation” applied to radio, 49 Fed. Reg. 20,051, J.A. at 2212, yet the Tribunal had already held in the context of television broadcasts (with this court’s approval) that the value of compilations was de minimis. See NAB v. CRT, supra, 675 F.2d at 379; see also part III. B., infra. We find this conclusion — that people listen to retransmitted stations for the music, and thus any award for retransmitted radio broadcasters should go to the Music Claimants— to be reasonable. III. 1980 Proceedings The Tribunal granted the same awards to all claimants for 1980 as it had in 1979. Several issues decided by the Tribunal in the 1980 Distribution Determination have now been appealed: (1) the National Association of Broadcasters and the Canadian Claimants argue that the CRT refused to evaluate their improved evidentiary showing in the 1980 proceedings, and instead changed an award only if evidence demonstrated that circumstances had changed between 1979 and 1980; (2) the NAB, as it has previously, claims that the CRT acted arbitrarily and capriciously when it determined that NAB’s “broadcast day compilations” were commercially worthless and deserved no award; (3) the NAB claims that its programs deserve more than the 4.5% awarded by the Tribunal, while MPAA claims that NAB’s 4.5% award is too high; and (4) the Devotionals, Commercial Radio, and the Canadian Claimants, each of which received the same award in 1980 as in 1979 (0.35%, 0, and 0.75%, respectively), argue that their awards are unjustifiably low (or non-existent, in Commercial Radio’s case). A. “Changed Circumstances” In the 1980 Distribution Determination, the NAB and the Canadian Claimants presented evidence that, in their view, demonstrated, first, that certain conclusions in the 1979 Determination were incorrect, and second, that these claimants deserved higher awards in the 1980 Determination. In the face of that evidence, NAB and the Canadian Claimants (indeed, as we already observed, all claimants) received the same awards in the 1980 Determination as in the prior year. NAB and the Canadian Claimants argue that the reason the CRT reached precisely the same result is that the Tribunal decided to make a different award for 1980 than for 1979 if and only if a claimant could show that circumstances had changed between 1979 and 1980. NAB and the Canadian Claimants maintain that it was arbitrary and capricious for the Tribunal to lock itself into its past judgments and thereby ignore new evidence that might show past decisions to have been infected with error. (D We agree that, as the parties themselves recognize, it would be improper, as a matter of law, for the Tribunal to rely solely upon a standard of “changed circumstances.” The invalidity of this rigid approach is strongly suggested by our two prior opinions, which expressly contemplated that in the annual determination process the claimants would improve upon the quality and sophistication of their eviden-tiary submissions. At the same time, it is entirely appropriate for the Tribunal to employ, as one of its analytical factors, the determination whether circumstances have changed in the course of the ensuing twelve months, inasmuch as that conclusion will obviously be relevant to the question whether an award should differ from the prior year’s award. But if a claimant presents evidence tending to show that past conclusions were incorrect, the Tribunal should either conclude, after evaluation, that the new evidence is unpersuasive or, if the evidence is persuasive and stands unrebutted, adjust the award in accordance with that evidence. The CRT, however, denies having employed an exclusive, “changed circumstances” standard. Upon examining the Tribunal’s 1980 Determination, we agree that it did not in fact do so. The Tribunal clearly discussed the new evidence proffered by NAB and the Canadian Claimants. For example, the CRT determined, after analysis, that a new survey submitted by NAB and testimony by two cable operators did not justify a higher award. 48 Fed. Reg. 9565, J.A. at 2203. The Tribunal also analyzed new evidence put on by the Canadian Claimants, but found that evidence unpersuasive. Id. at 9567, J.A. at 2205. The CRT, in addition, discussed and analyzed attempts by other claimants, such as MPAA and associated program suppliers and Multimedia, to improve the quality of their evidence, see 49 Fed.Reg. 9564, 9568, J.A. at 2202, 2206, and criticized the Devotional Claimants for failing even to attempt to adduce better evidence, see id. at 9568, J.A. at 2206 (“Most claimants in the 1980 proceeding sought to improve their presentation in areas where the Tribunal has found gaps or deficiencies. No such undertaking was made by the devotional claimants.”). (2) In seeking to demonstrate that the CRT relied solely upon “changed circumstances,” NAB and the Canadian Claimants essentially glide over the actual decision of the Tribunal; instead, they rely heavily upon a dissent from the 1980 Determination by Commissioner Burg. In her dissent, Commissioner Burg stated that the basis for the allocations reached by the majority in Phase I was predicated... on the assumption that the Tribunal was bound by the precedents of its previous decisions, and could not alter those previous allocations unless the facts had materially changed. All evidence therefore had to be viewed through the prism of “changed circumstances.” 49 Fed.Reg. 9569, J.A. at 2207 (footnote omitted). NAB also points to a letter from Commissioner Brennan, cited by Commissioner Burg in her dissent. There, Commissioner Brennan expressed dissatisfaction with a Phase II award of 1.6% to Multimedia, stating that such an award was inconsistent with the rationale of the Phase I awards. This statement does not mention “changed circumstances” at all, and NAB does not explain why it should be read to support its position. Nonetheless, NAB appears to be saying the following: since all agree that the Multimedia award was not based solely on “changed circumstances,” see supra note 13, Commissioner Brennan’s statement that the rationale for the Multimedia award was different from the rationale for other awards must mean that, as to the other awards, only a “changed circumstances” standard was applied. Finally, NAB argues that statements made by Commissioner Coulter during the evidentiary presentations in the 1980 proceedings demonstrated that yet another Commissioner believed the Tribunal would be acting arbitrarily and capriciously if, in the absence of “changed circumstances,” it granted an award in 1980 differing from that conferred in 1979. See, e.g., J.A. at 2690. We find these arguments unpersuasive. Commissioner Burg’s dissent, which was joined by no other Commissioner, obviously did not purport to reflect the Tribunal’s views. Her statement simply cannot override the Tribunal’s own discussion and analysis of new evidence, see supra pages 932-933. As for Commissioner Brennan’s letter, the excerpts cited by Commissioner Burg nowhere mentioned the use, or lack of use, of a “changed circumstances” standard. Commissioner Brennan merely spoke of “the rationale” used in the Phase I determination. He did not describe what he believed that rationale to be or how the rationale for Multimedia was different. Because of this lack of clarity, we cannot conclude that Commissioner Brennan’s letter demonstrated that the CRT relied exclusively upon “changed circumstances.” Finally, the Tribunal maintains that Commissioner Coulter’s comments were in fact questions to the parties before the CRT and did not reflect his personal views. CRT Brief at 39 n. 4. We need not march into that thicket of subjectivity, however, because even if Commissioner Coulter was erroneously of the view at the time evidence was being presented that the Tribunal must look only to “changed circumstances” from the previous year, nothing in the record indicates that Commissioner Coulter adhered to that notion when he participated and concurred in the actual Distribution Determination. Indeed, Commissioner Coulter expressed no disagreement with the CRT’s decision as to Multimedia, even though (as we noted above) that decision did not rely solely upon “changed circumstances.” B. Broadcast Day Compilations In the 1980 proceedings, the NAB renewed its royalty claim based upon the efforts of broadcasters in compiling “broadcast days,” that is, “the process by which broadcasters select programs from among diverse alternatives and assemble them with other program elements into a broadcast schedule that is usable by and attractive to viewers.” NAB Brief at 18. In the 1978 and 1979 proceedings Question: What is the state of the first listed state or local government agency that is a respondent? 01. not 02. Alabama 03. Alaska 04. Arizona 05. Arkansas 06. California 07. Colorado 08. Connecticut 09. Delaware 10. Florida 11. Georgia 12. Hawaii 13. Idaho 14. Illinois 15. Indiana 16. Iowa 17. Kansas 18. Kentucky 19. Louisiana 20. Maine 21. Maryland 22. Massachussets 23. Michigan 24. Minnesota 25. Mississippi 26. Missouri 27. Montana 28. Nebraska 29. Nevada 30. New 31. New 32. New 33. New 34. North 35. North 36. Ohio 37. Oklahoma 38. Oregon 39. Pennsylvania 40. Rhode 41. South 42. South 43. Tennessee 44. Texas 45. Utah 46. Vermont 47. Virginia 48. Washington 49. West 50. Wisconsin 51. Wyoming 52. Virgin 53. Puerto 54. District 55. Guam 56. not 57. Panama Answer:
songer_usc1	0	What follows is an opinion from a United States Court of Appeals. Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title. 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: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number. Answer:
songer_subevid	B	What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in civil law issues involving government actors. The issue is: "Did the court'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". Howard D. LEVINE, Appellant, v. COMMITTEE ON ADMISSIONS AND GRIEVANCES OF the U. S. DISTRICT COURT FOR the DISTRICT OF COLUMBIA, Appellee. No. 17654. United States Court of Appeals District of Columbia Circuit. Argued Oct. 18, 1963. Decided Jan. 16, 1964. Fred C. Sacks, Washington, D. C., for appellant. Roger Robb, Washington, D. C., for appellee. Before Bazelon, Chief Judge, and Fahy and McGowan, Circuit Judges. FAHY, Circuit Judge. This is an appeal from a judgment of the District Court disbarring appellant from the further practice of law before the Bar of the District Court, directing the Clerk of the District Court to strike his name from the role of attorneys admitted to practice before the court, and prohibiting him thenceforth from holding himself out to be an attorney-at-law in the District of Columbia. The judgment was entered by three members of the District Court after a hearing upon charges which had been filed by the Committee on Admissions and Grievances of the court, to which charges appellant had filed an answer. The court made Findings of Fact and Conclusions of Law which are a part of the record. The charges were that on or about October 11, 1960, and on specified dates thereafter, appellant, through the agency or use of two men who were not lawyers solicited named persons who had been involved in personal injury accidents to employ appellant as their attorney to seek damages. It was also charged that appellant agreed to compensate the men who did the soliciting on his behalf. Six separate instances of such solicitation were set forth by the Committee. Upon the basis of substantial evidence the court found that unethical solicitation was proved as to four of the charges, and not proved as to two, which were dismissed. The court concluded that appellant had been guilty of professional misconduct and conduct prejudicial to the administration of justice. The court accordingly entered the judgment now on appeal. Appellant contends the evidence lacked the clarity and convincing character necessary to sustain the judgment of disbarment. We have considered the evidence, and though in substantial part it is that of a former convict and person of ill repute his testimony is corroborated. It does not stand alone. The evidence as a whole is convincing that the conduct charged and found did indeed occur. It is urged that disbarment in the circumstances is too harsh. It is severe, but the violation by appellant of his professional responsibilities as a member of the Bar was not an isolated incident, or inadvertent; he engaged in a deliberate course of unprofessional conduct of a serious character. It is true the Committee itself does not appear to have pressed the District Court to disbar appellant. It prayed for either suspension or disbarment; and in summation at the trial the Committee made no recommendation as to the discipline the court should impose. Nevertheless, we are constrained to leave undisturbed the conclusion reached by the District Court as to the action it felt called upon to take. We would not be justified, in view of the conduct of appellant, in superimposing a different judgment of our own as to the remedy. A few words now as to the composition of the court that decided the case. Sections 11-1301 and 11-1302, D.C. Code, 1961, empower the United States District Court for the District of Columbia “in general term” to suspend from practice or expel a member of its bar for professional misconduct. Section 63 of the Act of March 3,1901, which governed the jurisdiction and procedure of the Supreme Court of the District of Columbia, the predecessor of the present United States District Court for the District of Columbia, provided that a general term of the court “shall be held by at least three justices.” In the legislative transformation of the Supreme Court of the District of Columbia into the United States District Court for the District of Columbia, Section 63 of the Act of March 3, 1901, was repealed, but for no purpose revolving around the meaning of ■“general term” as used in Sections 1301 and 1302 of our Code. It had become established that a court in “general term” was a court composed of not less than three members, and this meaning adheres to the language of Sections 1301 and 1302. The history of the legislation requires this conclusion as a matter of statutory construction, and it is fortified by long practice and tradition. Affirmed. . Chief Judge McGuire, Judge McGarraghy and Judge Kart. . Ch. 854, 31 Stat. 1200. . See Act of June 25, 1936, ch. 804, 49 Stat. 1921, as amended, Act of May 24, 1949, ch. 139, \| 32(b), 63 Stat. 107. Question: Did the court's interpretation of the substantial evidence rule support the government? For example, "such evidence as a reasonable mind might accept as adequate to support a conclusion" or "more than a mere scintilla". This issue is present only when the court indicates that it is using this doctrine, rather than when the court is merely discussing the evidence to determine whether the evidence supports the position of the appellant or respondent. A. No B. Yes C. Mixed answer D. Issue not discussed Answer:
songer_respond1_5_2	G	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the 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. Robert O. GILMORE, Jr., Appellant, v. The PEOPLE OF the STATE OF CALIFORNIA and Warden Lawrence E. Wilson et al., Appellees. No. 20466. United States Court of Appeals Ninth Circuit. Aug. 4, 1966. Robert O. Gilmore, Jr., Tamal, Cal., in pro. per. Thomas C. Lynch, Atty. Gen., Robert R. Granucci, Jay S. Linderman, Deputy Attys. Gen., San Francisco, Cal., for appellee. Before BROWNING, DUNIWAY and ELY, Circuit Judges. DUNIWAY, Circuit Judge: Appeal from an order denying a writ of habeas corpus. Gilmore pleaded guilty in California Superior Court to two counts of a seven-count information. The offenses are rape (Calif.Pen.Code § 261, subd. 3), for which the penalty is imprisonment for not less than 3 years, (Calif.Pen.Code § 264) and robbery (Calif.Pen.Code § 211) for which the penalty is not less than 5 years (Calif. Pen.Code § 213, subd. 1). Sentences were concurrent. The other 5 counts, which included kidnapping (Calif.Pen. Code § 207), for which the punishment may be death or life imprisonment without possibility of parole (Calif.Pen.Code § 209), were dismissed. Gilmore claims that a “confession” was obtained from him unlawfully in that he was not at the time represented by counsel and was “brow-beaten” and “inflicted with brutality” by the police. This contention is not available to him. The evidence was not used to convict him. His conviction rests solely upon his guilty plea. Hardee v. Wilson, 9 Cir., 1966, 363 F.2d 848 (June 29, 1966); Fleming v. Klinger, 9 Cir., 1966 363 F.2d 378 (June 28, 1966); Spry v. Oberhauser, 9 Cir., 1966, 361 F.2d 391 (May 20, 1966); Wallace v. Heinze, 9 Cir., 1965, 351 F.2d 39; Davis v. United States, 9 Cir., 1965, 347 F.2d 374; Harris v. United States, 9 Cir., 1964, 338 F.2d 75; Hoffman v. United States, 9 Cir., 1964, 327 F.2d 489; Thomas v. United States, 9 Cir., 1961, 290 F.2d 696; Berg v. United States, 9 Cir., 1949, 176 F.2d 122. The only question open to Gilmore is whether his guilty plea was freely and voluntarily entered. Nowhere in his petition, in what he designates as an “application” attached thereto, in his traverse to appellee’s return, or in his “supplement” to the traverse, does he assert that the claimed violation of the Escobedo rule [Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977], or the claimed brow-beating, or any of numerous non jurisdictional and non-constitutional matters that he discusses, brought about his guilty plea. A careful reading of these lengthy documents reveals that the guilty plea itself is attacked on only three grounds. The first is that Gilmore was afraid that if he went to trial he might get the death penalty. This was a real possibility. He was charged with an offense carrying that penalty. The fact that he was confronted with a hard choice, and that he chose what he thought was the lesser of two evils, would not make his plea involuntary. The second is that his retained counsel made a deal with the prosecutor whereby the latter agreed to and did dismiss five counts — at least one of which was for kidnapping and carried a possible death penalty — in exchange for the plea. This, as we have previously held, is not improper, and, standing alone, does not render the plea of guilty invalid. Cortez v. United States, 9 Cir., 1964, 337 F.2d 699. The third assertion is that Gilmore was deceived by his retained counsel into believing that he would receive, in exchange for his plea, a one year jail sentence instead of being sentenced, as he actually was, to state prison for the term prescribed by law. He does not directly charge that either the judge or the prosecutor was a party to any such understanding. At most he says that his attorney told him that the judge had promised such leniency, and that the prosecutor had agreed to the same deal. It is also implicit in the allegations that Gilmore did not agree to the deal, at least if the claimed promise of leniency were not a part of it. It has been held, and we agree, that mere disappointment at the severity of the sentence received upon a plea of guilty is no ground for habeas corpus or other similar relief, even where defendant’s counsel has expressed an opinion that leniency will be granted. Pinedo v. United States, 9 Cir., 1965, 347 F.2d 142; United States v. Parrino, 2 Cir., 1954, 212 F.2d 919; Monroe v. Huff, 1944, 79 U.S.App.D.C. 246, 145 F. 2d 249. But here, allowing for Gilmore’s lack of skill in drafting his allegations it is at least arguable that more than mere disappointment is involved. A flat misrepresentation by his attorney is asserted. Participation in a promise of leniency, and breach of that promise, by both judge and prosecutor are at least implied. We would feel more comfortable about the case if the court had held a hearing on these charges. If the judge or the prosecutor made a promise, and if this were a federal conviction, the case would fall within the rule in Machibroda v. United States, 1962, 368 U.S. 487, 489, 493, 82 S.Ct. 510, 7 L.Ed.2d 473. We entertain some doubt, as the trial judge did, that Gilmore’s charges are true. But the trial court did not and we do not have the record of what took place at Gilmore’s sentencing, and in any event, it probably would not fully answer the charge, which appears to allege matters occurring outside the record. We conclude that the trial judge should have held a hearing limited to those allegations that relate to the voluntary character of Gilmore’s plea. See Zaffarano v. United States, 9 Cir., 1962, 306 F.2d 707; ibid, 1964, 9 Cir., 330 F.2d 114. We do not now decide whether all the rules developed by the federal courts to determine the validity of a plea of guilty by one charged with a federal offense are equally applicable to a plea by one charged in a state court with a state offense, either under the due process clause of the fourteenth amendment or under other provisions of the federal constitution made applicable to the states by that amendment. It will be time enough to decide such questions if, after a hearing, they are presented by the facts found. Certainly, if Gilmore’s plea was voluntary under federal constitutional standards, we can ask no more of the state. Gilmore has also filed two applications, ex parte, for bail. We do not ordinarily grant bail to state prisoners seeking habeas corpus; we do not think that we should in this case, assuming that we have the power. Nothing in the Bail Reform Act of 1966, P.L. 89-465, 80 Stat. 214, requires us to grant bail in such cases. Both applications are denied. The order is reversed, with directions that further proceedings, consistent with this opinion, be held. . He did not, in fact, confess. Some of his statements, however, were incriminating, others were exculpatory. As to future cases, these distinctions no longer have meaning. Miranda v. Arizona, 1966, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. We do not consider them material here. . The petition itself is upon a form prescribed by the rules of the District Court, and is duly verified. The “Application” is a 26 page document, a mixture of factual assertions and argument. We treat it as part of the petition because it, too, is verified. . The traverse is similar to the “application.” It is 58 pages long, and is likewise verified. . The “supplement” is like the traverse, and is 14 pages long. It, too, is verified. . Like many prisoners who proceed in pro. per. Gilmore has filled his papers with factual assertions and legal citations that present no issue cognizable in habeas corpus, such as the sufficiency, credibility, and admissibility of testimony given at the preliminary hearing, and other matters. We do not discuss them, as. it would serve no useful purpose to do so. Some of his contentions might have been available to him had he gone to trial; he did not do so. Others would not. None is available here. The trial court did not hold a hearing. We therefore assume the truth, for the purpose of this decision, of such allegations as are relevant and material. 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_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 Gayle CAPSTICK, Plaintiff-Appellee, v. ALLSTATE INSURANCE COMPANY, Defendant-Appellant. No. 91-7088. United States Court of Appeals, Tenth Circuit. July 7, 1993. Stephen R. McAllister (Larry L. Simms with him, on the Briefs), Gibson, Dunn & Crutcher, Washington, DC, for appellant Allstate Ins. Co. Richard D. Gibbon, Richard D. Gibbon & Associates, Tulsa, OK (Aaron C. Peterson, Law Offices of Aaron C. Peterson, with him on the Brief), for appellee Gayle Capstick. Before LOGAN and SEYMOUR, Circuit Judges, and BROWN, Senior District Judge. Hon. Wesley E. Brown, Senior District Judge, District of Kansas, sitting by designation. ' WESLEY E. BROWN, Senior District Judge. The Plaintiff-Appellee Gayle Capstick filed this case against his automobile insurer, Defendant-Appellant Allstate Insurance Company, for damages for breach of contract, and bad faith refusal to pay an insurance claim after his auto was totally destroyed in a fire on January 11,1990. By letter dated February 16, 1990, Allstate refused to pay the claim, telling Capstick that the “fire appears to be of incendiary origin for which you are responsible.” A jury awarded Capstick compensatory damages of $1,500 on his contract claim, and $3,000 consequential damages and $2 million in punitive damages on the bad faith claim. The district court denied Allstate’s post-trial motions for relief from the judgment and amended the judgment to allow prejudgment interest. Capstick has moved to dismiss this appeal for lack of jurisdiction because defendant Allstate failed to file its notice of appeal within thirty days of the entry of the original judgment in this matter dated February 8, 1991. The record discloses that separate judgments on the jury verdicts were filed on February 8 without any reference to prejudgment interest. On February 19, Allstate filed its substantive post-trial motions and sought a stay of judgment and approval of a supersedeas bond. On February 20, Cap-stick filed an application under Fed.R.Civ.P. 59 claiming a right to such interest. Since an award of prejudgment interest was mandatory under state law, Allstate did not oppose that aspect of Capstick’s post-trial motion. On March 26, a stay was granted; but the district court denied all of Allstate’s post-trial motions. On May 9, Capstick filed a “Motion to Require Surety to Satisfy Judgment,” claiming that the judgment should be satisfied because Allstate had not filed a notice of appeal within thirty days after its post-trial motions had been denied. On June 11, the district court entered an order granting prejudgment interest, but denying the motion to require surety since the motion for interest delayed the time for filing a notice of appeal.. The district court correctly construed the motion for prejudgment interest as a Rule 59(e) motion to amend the judgment, a motion which postponed the commencement of the time for filing a notice of appeal. Osterneck v. Ernst & Whinney, 489 U.S. 169, 109 S.Ct. 987, 103 L.Ed.2d 146 (1989). Citing Osterneck, this circuit has ruled that “(t)he award of prejudgment interest, whether discretionary or mandatory, by a federal court, is an act which serves to remedy the injury giving rise to the underlying action and in that sense is part of the merits of the court’s decision.” The motion should be brought under Rule 59(e), and not Rule 60(a), since a Rule 60 motion “may not be used to alter the rate of prejudgment interest because that would call into question the substantive correctness of the judgment rather than remedy a clerical error or omission.” McNickle v. Bankers Life and Cas. Co., 888 F.2d 678 at 682 (10th Cir.1989). See also Adams-Arapahoe School D. 28-J v. Continental Ins., 891 F.2d 772, 780 (10th Cir.1989). Because the notice of appeal was timely, Capstiek’s motion to dismiss this appeal will be denied. Allstate’s motion for sanctions in connection with the motion to dismiss will be denied. We now turn to the merits of the appeal. Allstate claims that under Oklahoma law, the district court erred in denying its motions for partial summary judgment and for directed verdict and for judgment not withstanding the verdicVremittitur, or for new trial, on the issues of bad faith and punitive damages. Allstate also contends that the court erred as a matter of law in. permitting the jury to impose punitive damages in excess of the actual damages awarded, that the punitive damages awarded are excessive and unsupported by the evidence, and that the punitive damage award in this case was imposed in violation of federal constitutional due process. Following our review of the record and the law, we find that the judgment should be affirmed. The conflicting evidence which was presented by the parties presented a classic case for jury determination. Viewing the evidence in the light most favorable to the plaintiff, it appears that the jury could find that Capstick was a sixty-eight-year-old retired dean of a junior college in Pensacola, Florida, with a doctorate, who had held this position for twelve years before retiring. On January 11, 1990, he owned a 1982 Chevrolet Celebrity, purchased about two years before, which was insured by Allstate. Prior to this time, Capstick had been insured by Allstate for over 28 years, paying his premiums and making only a few claims for windshield and hail damage during all of those years. At the time of the fire, Capstick’s vehicle was worth about $1,500; he did not owe any money on it or any other vehicle; there were no judgments against him; and he did not owe any debts to.any one of any kind. Capstick maintained his own car, and on January 11, 1990, he drove the Chevrolet to his son’s home where it was more convenient to make repairs. The vehicle was parked next to a metal storage building, which contained a race ear engine and other parts, valued at $20,000. Neither the building nor the contents were insured. Capstick and his son put the car upon ramps and began to remove the head in order to change the head gasket. They disconnected the air conditioner, loosened the intake manifold from the head and the exhaust manifold in front of the head, disconnected the water hose, loosened the bolts, removed the solenoid and disconnected the gas line. Capstick then got in the car and “bumped” the ignition in order to raise the pistons to the top so his son could inspect them. When the two decided to stop work for the day, they noticed gas flowing under the vehicle and, when Capstick tried to stop the gas flow, it spewed out of the gas line all over the engine and firewall of the vehicle. Capstick tried to disconnect the battery in order to prevent a fire; but a fire exploded in the engine compartment, and additional gas flowed out of the fuel line fueling the fire. With chains and another car, Capstick and his son did succeed in dragging the Chevrolet away from the building and its uninsured contents, but by that time the interior of the car was burning, and the car was entirely consumed. Capstick had four quarts of transmission fluid and five quarts-of oil in the back of the car and these added fuel for the fire. A grass fire was started under the building, but this fire was put out without any damage to the contents of the metal building. Capstick’s neighbors helped plaintiff and his son put out the fire, and these neighbors were of eourse available to Allstate as witnesses to the occurrence. Capstick reported the loss to Allstate the next day and, from the very beginning without any investigation, Allstate treated the claim as a “suspicious loss.” The initial entry in plaintiffs claim file was made at 11:31 а.m. upon receipt of plaintiffs telephoned report: Insured vehicle burned up as he was doing repair work on the vehicle it is a total loss Pete... Possible suspicious loss- Allstate presented evidence that this was merely a clerical entry into its computer system because Capstick’s policy number could not immediately be found, and it was mistakenly assumed that his was a “new” policy. By noon on that date, it had been determined that Capstick had active coverage and had been Allstate insured since 1972. The jury was entitled to consider the significance of this entry in the light of other evidence tending to show that Allstate continued to pursue Capstick’s' claim on the assumption that it was a “suspicious loss.” Both before and after his claim was rejected, Capstick requested that an Allstate agent come out to the scene of the fire, which he had preserved by covering the area with plastic. Instead of doing so, Allstate had the vehicle removed to a salvage yard in Sapulpa, Oklahoma. Allstate’s adjuster, Peter'D’Ales-sandro, who had previously handled six to ten fire loss claims for the company, visited the salvage yard and determined that the auto “looked burned up.” He reported “I have only seen them this burned up when they were stolen and had gas poured all over them.” D’Alessandro called in Jack Yates to perform a “cause-and-origin” examination of the car. Yates asked if there was an explanation for a heavy petroleum product that would be in the front floor pan areh of the vehicle, but he was told only that the car caught fire while Capstick was working on it; and Yates was never informed of Capstick’s explanation that the vehicle burned when gasoline sprayed all over the engine firewall and below the vehicle. Yates verbally reported that he had smelled diesel fuel in the vehicle, and a lab analysis found a heavy petroleum product on the floor of the vehicle. At this point, Capstick was called into the Allstate office and voluntarily gave an affidavit concerning the origin of the file. D’Alessandro filled out the affidavit, leaving out much of the detailed information which was furnished by Capstick at this time. Particularly, the agent failed to note that there were witnesses to the fire who would have confirmed Capstick’s statement of the events. D’Alessandro and his supervisor both decided not even to interview plaintiffs son, who was present at the fire, because he would only “back up his father as to what had happened.” The jury heard evidence from Michael Bruun, a mechanic retained by Allstate to evaluate Capstick’s description of events. While Bruun believed that a faulty computer and fuel pump relay were possible sources of the fire, D’Alessandro chose to record that while a “messed up fuel pump relay” could have caused the fire, “Everything is possible. But not likely.” Capstick was again called in to give a deposition under oath before Mark Hanson, in-house counsel for Allstate. Capstick was required to bring in his tax returns for the past several years, his decree of divorce, copies of all other insurance policies covering the loss, including dwelling and contents insurance, copies of his monthly bank statements, canceled cheeks and financial records for 1985-1989; account books and statements for all of his business interests, copies of all promissory notes, leases, mortgages and liens on any real or personal property he owned, and “any and all other documentation of whatever kind or nature including any receipts which you have in your possession... in order to buttress and verify the claim” which he filed. When Capstick came in with all of his documents, Allstate agents spent only two to three minutes looking them over, and none were kept by Allstate for review. While Allstate argued that there were material discrepancies between the sworn statement and Capstick’s earlier account of the loss, the jury was entitled to find that these differences did not exist. . In the first instance, Allstate contends that it was entitled to summary judgment and/or directed verdict upon the bad faith claim because its denial of the claim was based upon a good faith arson defense which “demonstrated the existence of a legitimate dispute over coverage, precluding a finding of bad faith or an award of punitive damages under Oklahoma law.” In support of this argument, Allstate cites Manis v. Hartford Fire Ins. Co., 681 P.2d 760 (Okla.1984), and Conti v. Republic Underwriters Ins. Co., 782 P.2d 1357 (Okla.1989). In Manis the court found that the insurer reasonably contested coverage because there was evidence that the fire was incendiary in origin; a state fire marshal testified that the fire was deliberately set, the plaintiff had operated his bar at a loss for four years, that he had increased his mortgage debt on the building after he purchased it, and that he had a questionable alibi at the time of the fire. In Conti, the court found that there was a legitimate dispute and that the insurer acted in good faith since there was physical evidence of arson, and plaintiff failed to pass three polygraph tests which he himself requested. While Allstate contends that there was “undisputed scientific evidence” of arson present in this case and that it had legitimately disputed coverage, the trial court in overruling the motion for directed verdict specifically found, under the evidence described above, that the company had simply picked an “expert” who was not given any information concerning the true circumstances of the fire, and that Allstate had denied coverage without making any other bona fide investigation of plaintiffs claim. Appellee Appendix pp. 858-359. After the Capstick trial, the Supreme Court of Oklahoma in McCoy v. Okla. Farm Bur. Mut. Ins. Co., 841 P.2d 568 (Okla.1992), determined on similar facts that a jury was entitled to evaluate a bad faith claim, when the legitimacy of the insurer’s “good faith” claim was suspect. After the McCoy decision, Mí-state filed a motion to certify questions of law to the Oklahoma Supreme Court as to whether or not it was entitled to a judgment as a matter of law on the bad faith claim since, in its view, McCoy “potentially unsettles the applicable state law...” In making its argument, Allstate erroneously contends that its arson evidence was based upon “undisputed scientific evidence,” thereby overlooking all other evidence tending to prove that it failed entirely to conduct any legitimate investigation of plaintiffs claim. We find the McCoy case to be entirely clear on its face, and the motion to certify any issue to the state court will be denied. Under the evidence discussed above, we find that the issue of bad faith was properly submitted to the jury. The instruction which was given on bad faith was appropriate under Oklahoma law and clearly set out for jury evaluation Allstate’s position regarding the presence of a legitimate dispute over coverage. The jury was instructed that: The law provides that persons who contract with each other have an implied covenant or promise to deal with each other in good faith. One of those implied covenants in an insurance contract ig that the insurer will not act in bad faith with- an intent to wrongfully and unreasonably withhold payment of an insured’s valid claim. The term “in bad faith with a wrongful intent” means “without good cause or without a legitimate business purpose.” Upon receipt of a valid claim, an insurance company has an obligation and a duty to pay such claim immediately or promptly without any unreasonable delay. However, an insurance company has the right to make a reasonable investigation of claims and to withhold payment of claims when such an investigation shows that a claim is not valid. In that regard, the defendant Insurance Company does not breach its duty to deal in good faith with an insured such as plaintiff Capstick, if you find from all the evidence there is a legitimate dispute as to whether or not there is coverage under the insurance policy, and the defendant Insurance Company’s acts and position are reasonable and legitimate.” (Appellee Appendix pp. 105-106). The jury’s verdict on the bad faith claim is supported by the evidence and will not be disturbed. Allstate next contends that other than some slight “mental anguish,” Capstick failed to prove any consequential damages which resulted from the refusal to pay his claim, therefore he was not entitled to an award of punitive damages. Under the law of Oklahoma, recovery of damages for mental suffering “does not require either ‘severe’ mental distress or ‘outrageous’ conduct to be actionable...” Timmons v. Royal Globe Ins. Co., 653 P.2d 907, 916 (Okl.1982). But under the evidence in this case, the jury was entitled to find that Capstick, who cooperated fully with Allstate in the investigation of his claim, sustained considerable mental distress, inconvenience, annoyance, and expense while producing all of the information required to support his claim. He testified that the investigation “bore greatly” on his life, and he spent much time “thinking about how I could convince Allstate that I was not an arsonist,” that “(e)very night I would go to sleep thinking about this situation, what could I do, and would run over in my mind, well, I could do this; I could do that. And it did put a turmoil in my life for this period of time.” He was also concerned that Allstate was inquiring about his divorce, and worried that, at his age, denial of his claim would affect his insurability in the future. (Applt. Appendix pp. 178-179). Under these circumstances, it is clear that Capstick did sustain consequential damages as a result of Allstate’s tortious conduct. Under Oklahoma law, Capstick was entitled to recover punitive damages in addition to consequential damages. Timmons v. Royal Globe Ins. Co., supra, 653 P.2d 907; Spaeth v. Union Oil Co. of California, 762 F.2d 865 (10th Cir.1985), cert. den. 476 U.S. 1104, 106 S.Ct. 1946, 90 L.Ed.2d 356 and he was entitled to an award in excess of his actual damages if the trial court determined that there was evidence that defendant acted with wanton or reckless disregard of plaintiffs rights. The Oklahoma punitive damage statute, effective November 1, 1986, limits the amount of punitive damages to the amount of actual damages, in the absence of certain evidence which would raise the cap on damages. Thus Section 9, Okla.Stat.Tit. 23 (1986), as amended, provides that: A. In any action for the breach of an obligation not arising from contract, where the defendant has been guilty of conduct evincing a wanton or reckless disregard for the rights of another, oppression, fraud or malice, actual or presumed, the jury, in addition to the actual damages, may give damages for the sake of example, and by way of punishing the defendant, in an amount not exceeding the amount of actual damages awarded. Provided, however, if at the conclusion of the evidence and ‘prior to the submission of the case to the jury, the court shall find, on the record and out of the presence of the jury, that there is clear and convincing evidence that the defendant is guilty of conduct evincing a wanton or reckless disregard for the rights of another, oppression, fraud or malice, actual or presumed, then the jury may give damages for the sake of example, and by way of punishing the defendant, and the percentage limitation on such damages set forth in this section shall not apply. (Emphasis supplied) In a case of first impression, this circuit reviewed the amended statute in Marshall v. El Paso Natural Gas, 874 F.2d 1373 (10th Cir.1989), where the trial judge made a finding that there was clear and convincing evidence of the prohibited conduct and submitted the case to the jury without requiring the jury to make a finding of “clear and convincing evidence” prior to its award of punitive damages. Prior to the amendment, punitive damages were submitted to the jury upon a “preponderance of the evidence” standard; and the Marshall panel, in applying the amended statute, found that the state legislature did not modify the burden of proof from a preponderance of the evidence to “clear and convincing evidence.” In this respect, the panel construed the amendment in this manner: The amended statute also added a new second sentence requiring the court to make a finding, before the case is submitted to the jury, whether there is clear and convincing evidence to allow an award of punitive damages in excess of the actual damages awarded. Our reading of this change does not support the conclusion that the issue of “enhanced” punitive damages may only be submitted to the jury under the standard of clear and convincing evidence. * * * * * * A plain reading of the statute creates a threshold test for the plaintiff to meet in order for the issue of punitive damages to be submitted to the jury without limitation to the amount of actual damages. Once the threshold is met, the punitive damages issue is submitted to the jury under the standard of preponderance of the evidence to determine the amount of punitive damages regardless of whether it equals or exceeds the’actual damages awarded. (874 F.2d at 1383-1384) In the instant ease, the trial court made the required finding under Title 23, Section 9: I find that there is clear and convincing evidence that the defendant is guilty of conduct evidencing a wanton or reckless disregard for the rights of the plaintiff, oppression, malice could be actual or presumed, and I’m going to leave it open for the jury to determine the punitive damages. (Appellee Appendix, p. 357) The issue of whether there was sufficient evidence to support such a finding is a question of law, and, on review, the question is whether the plaintiff “presented evidence sufficient that a reasonable person might conclude the (defendant) acted in a punitive manner.” We find such conclusion to- be supported by the record. Marshall v. El Paso Natural Gas Co., supra, at p. 1384. The trial court did not err in presenting the issue of punitive damages to the jury, under appropriate instructions, without restriction of the amount to the sum of actual damages. Allstate next contends that Oklahojna law, “which permits juries to impose punitive damages without meaningful guidance” violates Fourteenth Amendment due process under the standards recently set forth by the Supreme Court in Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 111 S.Ct. 1032, 113 L.Ed.2d 1 (1991), and that the amount of the award is excessive. These issues present questions of federal law. In the Haslip case the jury, finding under Aabáma law that an insurance agent fraudulently failed to remit health insurance premiums to his company, returned a verdict awarding plaintiffs approximately $200,000 in compensatory damages, $4,000 in out-of-pocket expenses, and $840,000 in punitive damages. The Supreme Court found Aa-bama’s procedures for assessing and reviewing the award of punitive damages imposed sufficient restraints on the jury’s discretion in terms of constitutional due process and further found that, under the circumstances of the case, the amount of the punitive damage award was reasonable. Here, the district court was required to instruct the jury under the substantive Oklahoma law which governs punitive damage awards. As noted, the Oklahoma legislature has addressed the problem of punitive awards and has by statute set a “cap” on awards, to be removed only upon a specific finding by the trial court that there is “clear and convincing evidence that the defendant is guilty of conduct evincing a wanton or reckless disregard for the rights of another, oppression, fraud or malice, actual or presumed.” In this instance, the district court made such a finding, and that finding of fact and law is supported by the evidence. The district court thereafter instructed the jury according to the provisions of Title 23, Section 9, Okla.Stat., that it might give damages “for the sake of example, and by way of punishing the defendant,” “if, and only if’ it found that Capstick was entitled to recover actual damages on account of Alstate’s bad faith. The jury was also instructed that the jury must further find that the conduct of the defendant “amounted to oppression, gross negligence, malice, or reckless and wanton disregard of plaintiffs rights.” The jury was additionally told that these terms meant “such willful acts or conduct that would cause harm or injury to another, committed either intentionally or by indifference to, or conscious disregard of, the rights of others.” In all respects the Capstick jury was given specific guidelines to follow in determining whether or not punitive damages were appropriate in the circumstances of this case. It was not allowed to “run wild,” and its discretion to impose punitive damages was confined to deterrence and retribution, the' specific policies to be advanced under the state statute. The procedures followed by the trial court in removing the punitive damage cap are identical to that approved by this circuit in Marshall v. El Paso Natural Gas Co., supra, 874 F.2d 1373, and in full accord with the guidelines provided by the Supreme Court in Haslip, supra. See Glasscock v. Armstrong Cork Co., 946 F.2d 1085 (5th Cir.1991), cert. den. - U.S. -, 112 S.Ct. 1778, 118 L.Ed.2d 435; and Eichenseer v. Reserve Life Ins. Co., 934 F.2d 1377 (5th Cir.1991). In Harrell v. Old American Ins. Co., 829 P.2d 75 (Okl.App.1991), a medical insurer failed to seek medical advice on a claim, failed to consult counsel about relevant law, and failed to ask the insured about additional facts pertaining to her hospitalization. In affirming an award of $1,800 compensatory damages oh a breach of contract claim, $40,000 on a bad faith claim, and $250,-000 in punitive damages, the court found the insurer had shown a wanton or reckless disregard for the rights of its insured, and that the trial court had properly removed the restriction on the amount of punitive damages which the jury could award. 829 P.2d at 79. In post-trial motions, Allstate alleged that the amount of the punitive award was unsupported by evidence and was excessive, and sought a remittitur or new trial. These motions were denied by the trial court. In the federal court system, the trial judge has broad discretion in deciding whether to grant a new trial, and the court’s ruling on such a motion will not be disturbed on appeal unless there is “a gross abuse of discretion.” Whiteley v. OKC Corp., 719 F.2d 1051, 1058 (10th Cir.1983). The court there described the scope of review in this manner: “When reviewing the district court’s use of its discretion regarding excessive verdict claims, we must determine whether the award was “so excessive... as to shock the judicial conscience and to raise an irresistible inference that passion, prejudice, corruption or other improper cause invaded the trial_” Although we can reverse the verdict if it is too far out of line, there must be a strong showing of an abuse of discretion.... Under Oklahoma law, each case with an excessive verdict issue must be reviewed upon its own facts and circumstances... In (Hitchcock v. Weddle, 304 F.2d 735 (10th Cir.1962)),... we noted that this Circuit and Oklahoma courts have held that the jury’s verdict need be supported only by any evidence tending to sustain it... As the reviewing court, we must view the evidence in the light most favorable to the prevailing party_ In reviewing the record on appeal, we observe that the determination of damages is traditionally a jury function... This is so because the jury has heard the evidence. first hand and hás observed the demeanor of the witnesses. The jury must have much discretion to fix the damages deemed proper to fairly compensate the plaintiff-” (Citations omitted). (719 F.2d at 1058) In August, 1990, a panel of this court rendered a decision in The Post Office v. Portec, Inc., 913 F.2d 802 (10th Cir.1990), cert. granted, vacated and remanded, 499 U.S. -, 111 S.Ct. 1299, 113 L.Ed.2d 235, for reconsideration in light of Pacific Mutual Life Ins. Co. v. Haslip, supra, 499 U.S. 1, 111 S.Ct. 1032, 113 L.Ed.2d 1. In The Post Office case, a trademark owner alleged infringement, violation of the Lanham Act, fraud, and other violations of the state law. The jury returned verdicts in favor of plaintiff for damages of $79,519.40 on the misappropriation of trade secrets and breach of fiduciary duty claims, plus $1,500,000 in punitive damages. While the jury returned a verdict in favor of plaintiff on fraud claims, it awarded zero damages on those claims. This court found that the instructions and answers to interrogatories provided a basis for the punitive damage award even though there was no specific finding of willful or intentional conduct on certain of the claims, and concluded that the Colorado punitive damage statute did not violate the due process clause under the Federal or State Constitution. The court noted that the determination of whether a jury award of punitive damages was excessive was a matter of federal law, even though the justification for punitive damages was a matter of state law and determined that the punitive damage award was excessive, ordering a remittitur to $500,000 in punitive damages. In so doing, the panel applied the following standards for reviewing claims of excessive verdicts: In this circuit, remittitur of a jury verdict awarding punitive damages is allowed only when “an award (is) so excessive as to shock the judicial conscience and to raise an irresistible inference that passion, prejudice, corruption, or other improper cause invaded the trial...” In (Malandris v. Merrill Lynch, et al. at 703 F.2d 1177) we announced the factors to be considered in determining whether an award of punitive damages is excessive. The proper factors to be considered include: (a) the nature of the act which caused the injury; (2) the economic status of the defendant; and (3) the deterrent effect of the award on others. In addition, Colorado requires that the punitive damages bear some relation to the compensatory award. The Post Office, 913 F.2d at pp. 809, 810. In concluding that a remittitur should be-ordered, the panel noted that while the acts were found to be willful and intentional, they did not involve violence or outrageous conduct and that, since defendant’s net worth was only $6,942,000, the award of $1,500,000 amounted to 21.6% of that worth and was in excess of the $795,194 in gross sales realized by defendant from its wrongdoing. Under Colorado law, the ratio of punitive damages to actual damages is a factor, but the panel considered the 19:1 ratio of punitive to actual damages “as only one factor” in its analysis. The panel also found it significant that the trial court had entered a broad injunction preventing the manufacture or sale' of defendant’s product for a period of four years. In lowering the award, the panel found that “the defendant’s net worth of only $6,942,000.00 and its total gross sales of $795,194.00 for this.product to be dominant factors.”' 913 F.2d at 811. After remand by the Supreme Court, the opinion of August, 1990 was vacated and, by stipulation of the parties, the appeal was dismissed with prejudice. The Post Office v. Portec, Inc., 935 F.2d 1105 (10th Cir.1991). Following the Haslip and The Post Office decisions, a panel of this court determined that a punitive damage award of $25 million was excessive-in a personal injury/wrongful death action brought under Kansas law. Mason v. Texaco, Inc., 948 F.2d 1546 (10th Cir.1991), cert. den. — U.S. -, 112 S.Ct. 1941, 118 L.Ed.2d 547. The case involved a benzene-related leukemia death, in which a verdict was returned for $9,025,000 in actual damage and $25 million in punitive damage. In a pre-Haslip review of the evidence, the trial court found that the punitive award was not excessive since the jury could infer that the defendant’s failure to warn of danger was designed to conceal the danger; the award exceeded actual damages by less than 3 to 1; and the award represented only 0.31% of defendant’s net worth and 1.92% of its annual net earnings. Mason v. Texaco, Inc., 741 F.Supp. 1472 (D.C.Kan.1990). On the appeal, this circuit agreed that an award of punitive damages was justified, and that the award was not motivated by passion, prejudice or bias, but found the “staggering sum” of $25 million in punitive damage to be “so excessive as to shock our judicial conscience,” and “excessive and beyond a reasonable punitive award under the law of Kansas.” 948 F.2d at 1560, 1561. In this case, it was significant to the panel that- in the first trial of the action, which was “substantially similar” to the second trial, the plaintiff sought punitive damages of only $8,000,000, and the first jury did not award any punitive damages. In Broadcort Capital Corp. v. Summa Medical Corp., 972 F.2d 1183 (10th Cir.1992), which involved the conversion of a stock certificate, the jury returned a verdict under New Mexico law of $1,600,000 in compensatory damages and $400,000 in punitive damages. On appeal the defendant claimed that the punitive damage award was excessive because the jury instructions did not contain adequate safeguards; but the verdict was upheld under Haslip with a note that the award was only one-quarter of the amount of compensatory damages and that “the jury instructions satisfied (the defendant’s) interest in rational decision making and.ensured that the jury’s discretion would be exercised within reasonable constraints.” Under these circumstances, this circuit found “that this award does not ‘jar one’s constitutional sensibilities’ and was not entered in violation of due process principles.” 972 F.2d at 1193, 1194. In determining whether or not the trial judge abused his discretion by failing to order a remittitur or to grant a new trial in this case, under Haslip, we must determine whether or not the amount of punitive damages awarded to Capstick is “excessive”— whether there was an extreme result which would “jar one’s constitutional sensibilities,” or whether the damages “are reasonable in light of their amount and rational in light of their purpose to punish what has occurred and to deter its repetition.” Haslip, supra, 499 U.S. at pp. -,-, 111 S.Ct. at pp. 1043, 1045, 113 L.Ed.2d at pp. 20, 22. In Haslip, the Supreme Court recognized that it could not “draw a mathematical bright line between the constitutionally acceptable and the constitutionally unacceptable that would fit every case.” 499 U.S. at -, 111 S.Ct. at 1043, 113 L.Ed.2d at 20, and thus our review of such issues must be upon a case-to-case basis. Under Oklahoma law, punitive damages need not bear a specific relation to the actual damages awarded, but they must have some relation to the injuries inflicted. Garland Coal & Mining Co. v. Few, 267 F.2d 785, 791 (10th Cir.1959). Under the evidence here, the jury could find that Allstate’s conduct was particularly egregious and wrongheaded, clearly oppressive and “evidencing a wanton or reckless disregard” for Capstick, its insured. It is significant that Allstate specifically and repeatedly labelled Capstick as an arsonist and one who intended to pursue an insurance fraud. These are significant factors which support the punitive award in this ease. The ratio of actual damages to punitive damages is only one factor in determining the question of excessive punitive damages. See Bradbury v. Phillips Petroleum Co., 815 F.2d 1356, 1366 (10th Cir.1987); Malandris v. Merrill Lynch, Pierce, Fenner & Smith, supra, 703 F.2d 1152 (10th Cir.1981). In many eases involving bad faith conduct by insurance companies or others, the actual amount in controversy may be relatively insignificant, as was Capstick’s contract claim for $1,500, the consequential damages may be only nominal, but the outrage may be significant. Under Oklahoma law, the net worth of a defendant may be considered in assessing punitive damages. In the recent Oklahoma case of Harrell v. Old American Ins. Co., supra, 829 P.2d 75, the insurer denied plaintiffs hospitalization claim without any legitimate investigation of her medical status and without any attempt to communicate with the her doctors. The jury returned a verdict of $1,800 in compensatory damages on the breach of contract claim, $40,000 on the bad faith claim, and awarded plaintiff $250,000 in punitive damages. The Oklahoma court approved the punitive award, noting that it was not excessive in view 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_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. HOLDCROFT TRANSP. CO. v. COMMISSIONER OF INTERNAL REVENUE. No. 13152. Circuit Court of Appeals, Eighth Circuit. Feb. 21, 1946. Louis S. Goldberg, of Sioux City, Iowa, for petitioner. Harold C. Wilkenfeld, Sp. Asst, to Atty. Gen. (Samuel O. Clark, Jr., Asst. Atty. Gen., and Sewall Key, J. Louis Monarch, and S. Dee Hanson, Sp. Assts. to Atty. Gen., on the brief), for respondent. Before STONE, SANBORN, and THOMAS, Circuit Judges. SANBORN, Circuit Judge. The petitioner asserts that the Commissioner of Internal Revenue and the Tax Court of the United States erroneously disallowed a deduction taken by petitioner in its income and excess-profits tax return for the fiscal year ended October 31, 1940. The disallowance caused a deficiency of $1,017.85 in petitioner’s income tax and $314.19 in its declared value excess-profits tax for that year. The question presented is whether the deduction claimed by petitioner was for capital expenditures, which were nondeductible, or for ordinary and necessary business expenses or 'business losses, which were deductible. The facts are stipulated, and for the purpose of this opinion, may be stated briefly as follows: The petitioner is an Iowa corporation engaged in business as a common and contract carrier by motor vehicle. It commenced operations on November 1, 1939, having on that day acquired the business and assets of a partnership of the same name in exchange for petitioner’s common stock and the assumption by petitioner of the liabilities of the partnership. These liabilities included two claims known as the Cass and Miller claims, which grew out of a collision between a truck operated by the partnership and an automobile in which Cass and Miller were riding. The collision ‘occurred January 16, 1935. Two suits were brought in the District Court of Woodbury County, Iowa, against the partnership, the partners, and the driver of the truck; one for the alleged wrongful death of Cass, and the other for personal injuries suffered by Miller. The defendants in these suits denied liability. The suits were still pending at the time the petitioner took over the assets of the partnership and assumed its liabilities. The litigation was thereafter conducted by petitioner. In the Cass suit, a judgment for $7,417.10 had been entered in April, 1939. On a motion for a new trial, the plaintiff was ordered to remit $3,000 of the judgment or submit to a new trial. A remittitur was filed November 29, 1939. The petitioner concluded that to continue the litigation would jeopardize its credit, and “that business prudence dictated immediate settlement” of the controversy. On December 6, 1939, petitioner paid the Clerk of the District Court of Woodbury County, Iowa, $4,927 in full satisfaction of the Cass judgment. The Miller suit never came to trial. For the same reasons which induced the petitioner to pay the Cass judgment, it settled the Miller suit for $2,625. Petitioner paid, in addition, $17.59 Clerk’s costs, $15 for an appearance bond, and $276.27 to its counsel for services in connection with the settlement of the Miller claim. The total amount paid by the petitioner with respect to both the Cass and Miller claims against the partnership was $7,860.86. In its return for the fiscal year ended October 31, 1940, the petitioner deducted as “law expense” the entire $7,860.86. The Commissioner disallowed the deduction. The Tax Court, on review, allowed as a deduction the $276,27 paid by petitioner for services rendered by its attorneys. The Tax Court assumed that the services were rendered after November 1, 1939, in connection with the settlement of the Miller claim. The Tax Court disallowed the re-" mainder of the claimed deduction upon the ground that it represented a capital expenditure, being part of the consideration for the acquisition by petitioner of the assets of the partnership. This resulted in the deficiencies of which the petitioner complains. The contention of the petitioner, in substance, is that, since the Cass and Miller claims against the partnership were contingent on November 1, 1939, and since the business of the petitioner was a mere continuation of the business of the partnership, the assets of which were acquired in a tax-free exchange, the amounts paid in settlement of the claims were not capital expenditures, but were either ordinary and necessary expenses of carrying on petitioner’s trade or business, deductible under § 23(a) (1) of the Internal Revenue Code, 26 U.S.C.A. Int.Rev.Code, § 23(a) (1), or losses sustained, deductible under § 23 (f) of the Code. It is obvious that if what the petitioner paid in settlement of the claims against the partnership was a part of the purchase price of its assets, .the payments were capital expenditures, and not current expenses or losses of the business of petitioner. • The petitioner concedes that this would be true if the claims against its predecessor had been fixed liabilities, but is of the opinion that, since the claims were contingent and unliquidated at the time of the transfer, their subsequent payment, in order to preserve the petitioner’s credit and business, may not be considered a capital expenditure. The payment by petitioner of the-claims against the partnership reasonably can be attributed only to the assumption by petitioner of liability for those claims. The claims did not arise out of the operation of the business of petitioner. The expense of settling them was not an operating expense or operating loss of that business, but a part of the cost of acquisition of the property of the partnership; and the fact that the claims against the partnership were contingent and unliquidated at the time of acquisition is not, in our opinion, of controlling consequence. See and compare, Lifson v. Commissioner, 8 Cir., 98 F.2d 508, 510; United States v. Consolidated Elevator Co., 8 Cir., 141 F. 2d 791, 792-793; Magruder v. Supplee, 316 U.S. 394, 62 S.Ct. 907, 86 L.Ed. 1555. The petitioner asserts that, because it acquired the assets of the partnership in a tax-free transfer by virtue of § 112(b) (5) and § 113(a) (8) of the Internal Revenue Code, 26 U.S.C.A. Int.Rev. Code, § 112(b) (5) and § 113(a) (8), petitioner is in the same position with respect to expense and loss deductions as its predecessor would have been in if there had been no transfer. This contention is unsound. The statutes referred to expressly relate to the basis for determining gain or loss upon the sale or exchange of property. While the assets of the partnership transferred to petitioner took the same cost basis in its hands as they had in the hands of its transferor, there is no justification for a ruling that the petitioner could deduct from the gross income of its business, expenses or losses attributable to the operation of the business by its predecessor. An income tax deduction is a matter of legislative grace, and the burden is on the taxpayer to demonstrate his right to it. Interstate Transit Lines v. Commissioner, 319 U.S. 590, 593, 63 S.Ct. 1279, 87 L.Ed. 1607. The Tax Court’s decision, we think, is correct. It is affirmed. Sec. 23(a) (1) allows as deductions: “All the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business * * * and rentals or other payments required to be made as a condition to the continued use or possession, for purposes of the trade or business, of property to which the taxpayer has not taken or is not taking title or in which he has no equity.” Sec. 23(f) allows a deduction to corporations for “losses sustained during the taxable year and not compensated for by insurance or otherwise.” Question: Is the opinion writer identified in the opinion, or was the opinion per curiam? A. Signed, with reasons B. Per curiam, with reasons C. Not ascertained Answer:
sc_lcdispositiondirection	B	What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the decision of the court whose decision the Supreme Court reviewed was itself liberal or conservative. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. The lower court's decision direction is unspecifiable if the manner in which the Supreme Court took jurisdiction is original or certification; or if the direction of the Supreme Court's decision is unspecifiable and the main issue pertains to private law or interstate relations UNITED AIR LINES, INC. v. McMANN No. 76-906. Argued October 4, 1977 Decided December 12, 1977 Arnold T. Aikens argued the cause for petitioner. With him on the briefs were Kenneth A. Knutson, Earl G. Dolan, and Philip J. Hogan. Francis G. McBride argued the cause and filed a brief for respondent. Morgan D. Hodgson, Lawrence B. Kraus, and Richard O’Brecht filed a brief for the- Chamber of Commerce of the United States of America as amicus curiae urging reversal. Cyril F. Brickfield, Jonathan A. Weiss, and Robert B. GiMan filed a brief for the National Retired Teachers Assn. et al. as amici curiae urging affirmance. Mr. Chief Justice Burger, delivered the opinion of the Court. The question presented in this case is whether, under the Age Discrimination in Employment Act of 1967, retirement of an employee over his objection and prior to reaching age 65 is permissible under the provisions of a bona fide retirement plan established by the employer in 1941 and joined by the employee in 1964. We granted certiorari to resolve a conflict between the holdings of the Fifth Circuit in Brennan v. Taft Broadcasting Co., 500 F. 2d 212 (1974), and the Fourth Circuit now before us. See Zinger v. Blanchette, 549 F. 2d 901 (CA3 1977), cert. pending, No. 76-1375. I The operative facts were stipulated by the parties in the District Court and are not controverted here. McMann joined United Air Lines, Inc., in 1944, and continued as an employee until his retirement at age 60 in 1973. Over the years he held various positions with United and at retirement held that of technical specialist-aircraft systems. At the time McMann was first employed, United maintained a formal retirement income plan it had inaugurated in 1941, in which McMann was eligible to participate, but was not compelled to join. He voluntarily joined the plan in January 1964. The application form McMann signed showed the normal retirement age for participants in his category as 60 years. McMann reached his 60th birthday on January 23, 1973, and was retired on February 1, 1973, over his objection. He then filed a notice of intent to sue United for violation of the Act pursuant to 29 U. S. C. § 626 (d). Although he received an opinion from the Department of Labor that United's plan was bona fide and did not appear to be a subterfuge to evade the purposes of the Act, he brought this suit. McMann’s suit in the District Court seeking injunctive relief, reinstatement, and backpay alleged his forced retirement was solely because of his age and was unlawful under the Act. United's response was that McMann was retired in compliance with the provisions of a bona fide retirement plan which he had voluntarily joined. On facts as stipulated, the District Court granted United’s motion for summary judgment. In the Court of Appeals it was conceded the plan was bona fide “in the sense that it exists and pays benefits.” But McMann, supported by a brief amicus curiae filed in that court by the Secretary of Labor, contended the enforcement of the age-60 retirement provision, even under a bona fide plan instituted in good faith in 1941, was a subterfuge to evade the Act. The Court of Appeals agreed, holding that a pre-age-65 retirement falls within the meaning of “subterfuge” unless the employer can show that the “early retirement provision . . . ha[s] some economic or business purpose other than arbitrary age discrimination.” 542 F. 2d 217, 221 (1976). The Court of Appeals remanded the case to the District Court to allow United an opportunity to show an economic or business purpose and United sought review here. We reverse. II Section 2 (b) of the Age Discrimination in Employment Act of 1967, 81 Stat. 602, recites that its purpose is “to promote employment of older persons based on their ability rather than age; to prohibit arbitrary age discrimination in employment; to help employers and workers find ways of meeting problems arising from the impact of age on employment.” 29 U. S. C. § 621 (b). Section 4 (a)(1) of the Act, 81 Stat. 603, makes it unlawful for an employer “to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age . . . .” 29 U. S. C. § 623 (a)(1). The Act covers individuals between ages 40 and 65, 29 U. S. C. § 631, but does not prohibit all forced retirements prior to age 65; some are permitted under §4 (f)(2), 81 Stat. 603, which provides: “It shall not be unlawful for an employer ... or labor organization to observe the terms of a bona fide seniority system or any bona fide employee benefit plan such as a retirement, pension, or insurance plan, which is not a subterfuge to evade the purposes of this [Act], except that no such employee benefit plan shall excuse the failure to hire any individual 29 U. S. C. § 623 (f)(2). See infra, at 198-202. McMann argues the term “normal retirement age” is not defined in the plan other than in a provision that “A Participant’s Normal Retirement Date is the first day of the month following his 60th birthday.” From this he contends normal retirement age does not mean mandatory or compelled retirement at age 60, and United therefore did not retire him “to observe the terms” of the plan as required by §4 (f)(2). As to this claim, however, we accept the analysis of the plan by the Court of Appeals for the Fourth Circuit: “While the meaning of the word 'normal’ in this context is not free from doubt, counsel agreed in oral argument on the manner in which the plan is operated in practice. The employee has no discretion whether to continue beyond the 'normal’ retirement age. United legally may retain employees such as McMann past age 60, but has never done so: its policy has been to retire all employees at the 'normal’ age. Given these facts, we conclude that for purposes of this decision, the plan should be regarded as one requiring retirement at age 60 rather than one permitting it at the option of the employer.” 542 F. 2d, at 219. (Emphasis supplied.) McMann had filed a grievance challenging his retirement since, as a former pilot, he held a position on the pilots’ seniority roster. In that arbitration proceeding he urged that “normal” means “average” and so long as a participant is in good health and fit for duty he should be retained past age 60. The ruling in the arbitration proceeding was that “ ' [n] ormal’ means regular or standard, not average, not only as a matter of linguistics but also in the general context of retirement and pension plans and the settled practice at United.” It was also ruled that the involuntary retirement of McMann “was taken in accordance with an established practice uniformly applied to all members of the bargaining unit.” Though the District Court made no separate finding as to the meaning of “normal” in this context, it had before it the definition ascribed in the arbitration proceeding and that award was incorporated by reference in the court’s findings and conclusions. In light of the facts stipulated by the parties and found by the District Court, we also accept the Court of Appeals’ view as to the meaning of “normal.” In Brennan v. Taft Broadcasting Co., 500 F. 2d, at 215, the Fifth Circuit held that establishment of a bona fide retirement plan long before enactment of the Act, “eliminated] any notion that it was adopted as a subterfuge for evasion.” In rejecting the Taft reasoning, the Fourth Circuit emphasized that it distinguished between the Act and the -purposes of the Act. The distinction relied on is untenable because the Act is the vehicle by which its purposes are expressed and carried out; it is difficult to conceive of a subterfuge to evade the one which does not also evade the other. McMann argues that § 4 (f) (2) was not intended to authorize involuntary retirement before age 65, but was only intended to make it economically feasible for employers to hire older employees by permitting the employers to give such older employees lesser retirement and other benefits than provided for younger employees. We are persuaded that the language of § 4 (f) (2) was not intended to have such a limited effect. In Zinger v. Blanchette, 549 F. 2d 901 (1977), the Third Circuit had before it both the Taft and McMann decisions. It accepted McMann’s distinction between the Act and its purposes, which, in this setting, we do not, but nevertheless concluded: “The primary purpose of the Act is to prevent age discrimination in hiring and discharging workers. There is, however, a clear, measurable difference between outright discharge and retirement, a distinction that cannot be overlooked in analyzing the Act. While discharge without compensation is obviously undesirable, retirement on an adequate pension is generally regarded with favor. A careful examination of the legislative history demonstrates that, while cognizant of the disruptive effect retirement may have on individuals, Congress continued to regard retirement plans favorably and chose therefore to legislate only with respect to discharge.” 549 F. 2d, at 905. (Emphasis supplied; footnote omitted.) The dissent relies heavily upon the legislative history, which by traditional canons of interpretation is irrevelant to an unambiguous statute. However, in view of the recourse to the legislative history we turn to that aspect to demonstrate the absence of any indication of congressional intent to undermine the countless bona fide retirement plans existing in 1967 when the Act was passed. Such a pervasive impact on bona fide existing plans should not be read into the Act without a clear, unambiguous expression in the statute. When the Senate Subcommittee was considering the bill, the then Secretary of Labor, Willard Wirtz, was asked what effect the Act would have on existing pension plans. His response was: “It would be my judgment . . . that the effect of the provision in 4 (f) (2) [of the original bill] ... is to protect the application of almost all plans which I know anything about. ... It is intended to protect retirement plans.” Hearings on S. 830 before the Subcommittee on Labor of the Senate Committee on Labor and Public Welfare, 90th Cong., 1st Sess., 53 (1967) (hereafter Senate Hearings) . When the present language of § 4 (f) (2) was later proposed by amendments, Mr. Wirtz again commented that established pension plans would be protected. Hearings on H. R. 4221 et al. before the General Subcommittee on Labor of the House Committee on Education and Labor, 90th Cong., 1st Sess., 40 (1967). Senator Javits' concern with the administration version of §4 (f)(2), expressed in 1967 when the legislation was being debated, was that it did not appear to give employers flexibility to hire older employees without incurring extraordinary expenses because of their inclusion in existing retirement plans. His concern was not, as inferred by the dissent, that involuntary retirement programs would still be allowed. He said, “The administration bill, which permits involuntary separation under bona fide retirement plans meets only part of the problem. It does not provide any flexibility in the amount of pension benefits payable to older workers depending on their age when hired, and thus may actually encourage employers, faced with the necessity of paying greatly increased premiums, to look for excuses not to hire older workers when they might have hired them under a law granting them a degree of flexibility with respect to such matters. “That flexibility is what we recommend. “We also recommend that the age discrimination law should not be used as the place to fight the pension battle but that we ought to subordinate the importance of adequate pension benefits for older workers in favor of the employment of such older workers and not make the equal treatment under pension plans a condition of that employment.” Senate Hearings 27. In keeping with this objective Senator Javits proposed the amendment, which was incorporated into the 1967 Act, calling for “a fairly broad exemption ... for bona fide retirement and seniority systems which will facilitate hiring rather than deter it and make it possible for older workers to be employed without the necessity of disrupting those systems.” Id., at 28. The true intent behind § 4 (f) (2) was not lost on the representatives of organized labor; they viewed it as protecting an employer’s right to require pre-65 retirement pursuant to a bona fide retirement plan and objected to it on that basis. The legislative director for the AFD-CIO testified: “We likewise do not see any reason why the legislation should, as is provided in section 4(f)(2) of the Administration bill, permit involuntary retirement of employees under 65. . . . Involuntary retirement could be forced, regardless of the age of the employee, subject only to the limitation that the retirement policy or system in effect may not be merely a subterfuge to evade the Act.” Senate Hearings 96. In order to protect workers against involuntary retirement, the AFL-CIO suggested an “Amendment to Eliminate Provision Permitting Involuntary Retirement From the Age Discrimination in Employment Act, and to Substitute Therefor Provision Safeguarding Bona Fide Seniority or Merit Systems,” which would have deleted any reference to retirement plans in the exception. Id., at 100. This amendment was rejected. But, as noted in Zinger, 549 F. 2d, at 907, the exemption of benefit plans remained in the bill as enacted notwithstanding labor’s objection, and the labor-proposed exemption for seniority systems was added. There is no basis to view the final version of § 4 (f) (2) as an acceptance of labor’s request that the benefit-plan provision be deleted; the plain language of the statute shows it is still there, albeit in different terms. Also added to the section when it emerged from the Senate Subcommittee is the language “except that no such employee benefit plan shall excuse the failure to hire any individual.” Rather than reading this addendum as a redundancy, as does the dissent, post, at 212, and n. 5, it is clear this is the result of Senator Javits’ concern that observance of existing retirement plan terms might discourage hiring of older workers. Supra, at 200. Giving meaning to each of these provisions leads inescapably to the conclusion they were intended to permit observance of the mandatory retirement terms of bona fide retirement plans, but that the existence of such plans could not be used as an excuse not to hire any person because of age. There is no reason to doubt that Secretary Wirtz fully appreciated the difference between the administration and Senate bills. He was aware of Senator Javits’ concerns, and knew the Senator sought to amend the original bill to focus on the hiring of older persons notwithstanding the existence of pension plans which they might not economically be permitted to join. See Senate Hearings 40. Senator Javits’ view was enacted into law making it possible to employ such older persons without compulsion to include them in pre-existing plans. The dissent misconceives what was said in the Senate debate. The dialogue between Senators Javits and Yarborough, the minority and majority managers of the bill, respectively, is set out below and clearly shows awareness of the continued vitality of pre-age-65 retirements. III Iii this case, of course, our function is narrowly confined to discerning the meaning of the statutory language; we do not pass on the wisdom of fixed mandatory retirements at a particular age. So limited, we find nothing to indicate Congress intended wholesale invalidation of retirement plans instituted in good faith before its passage, or intended to require employers to bear the burden of showing a business or economic purpose to justify bona fide pre-existing plans as the Fourth Circuit concluded. In ordinary parlance, and in dictionary definitions as well, a subterfuge is a scheme, plan, stratagem, or artifice of evasion. In the context of this statute, “subterfuge” must be given its ordinary meaning and we must assume Congress intended it in that sense. So read, a plan established in 1941, if bona fide, as is conceded here, cannot be a subterfuge to evade an Act passed 26 years later. To spell out an intent in 1941 to evade a statutory requirement not enacted until 1967 attributes, at the very least, a remarkable prescience to the employer. We reject any such per se rule requiring an employer to show an economic or business purpose in order to satisfy the subterfuge language of the Act. Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. Reversed and remanded. The plan paid retirement benefits pursuant to a group annuity contract between United and two life insurance companies. The same concession was made in this Court. No brief amicus was filed on behalf of the Department of Labor in this Court, but after submission of the case following oral argument the Solicitor General wrote a letter to the Clerk of this Court stating that the Government agreed with the Eourth Circuit and was prepared to file a brief amicus within three weeks. The Rules of this Court do not allow the filing of briefs amicus after oral argument. See Rule 42. No motion for leave to file a brief amicus was filed. We note, too, that the Department of Labor’s interpretation of § 4 (f) (2), issued nearly contemporaneously with the effective date of the Act, was that the meaning did not turn on whether or not all employees under a plan are required to retire at the same age. “The fact that an employer may decide to permit certain employees to continue working beyond the age stipulated in the formal retirement program does not, in and of itself, render an otherwise bona fide plan invalid, insofar as the ¡exception provided in Section 4 (f) (2) is concerned.” 29 CFR §860.110 (a) (1976). The Department’s more recent position on the section is that pre-65 retirements “are unlawful unless the mandatory retirement provision . . . is required by the terms of the plan and is not optional . . . .” U. S. Department of Labor, Annual Report on Age Discrimination in Employment Act of 1967, p. 17 (1975). Having concluded, as did the Court of Appeals, that the United plan calls for mandatory retirement at age 60, however, we need not consider this further. Similarly, in De Loraine v. MEBA Pension Trust, 499 F. 2d 49 (CA2), cert. denied, 419 U. S. 1009 (1974), the court said a bona fide pension plan ¡established in 1955 was not a subterfuge. That case did not properly present the question of whether the Act forbade involuntary retirement before age 65 and the court did not purport to decide it. 499 F. 2d, at 51 n. 7. Steiner v. National League of Professional Baseball Clubs, 377 F. Supp. 945, 948 (CD Cal. 1974), aff’d, No. 74-2604 (CA9, Oct. 15, 1975), likewise rejected the idea that a pension plan established long before the Act could be a subterfuge saying: “Obviously it could not have been evolved in an attempt to circumvent any public policy or law.” Section 4 (f)(2) of the original administration bill provided: “It shall not be unlawful for an employer ... to separate involuntarily an employee under a retirement policy or system where such policy or system is not merely a subterfuge to evade the purposes of this Act . . . .” Legislative observations 10 years after passage of the Act are in no sense part of the legislative history. See post, at 218. “Mr. YARBOROUGH. I wish to say to the Senator that that is basically my understanding of the provision in line 22, page 20 of the bill, clause 2, subsection (f) of section 4, when it refers to retirement, pension, or insurance plan, it means that a man who would not have been employed except for this law does not have to receive the benefits of the plan. Say an applicant for employment is 55, comes in and seeks employment, and the company has bargained for a plan with its labor union that provides that certain moneys will be put up for a pension plan for anyone who worked for the employer for 20 years'so that a 55-year-old employee would not be employed past 10 years. This means he cannot be denied employment because he is 55, but he will not be able to participate in that pension plan because unlike a man hired at 44, he has no chance to earn 20 years retirement. In other words, this will not disrupt the bargained-for pension plan. This will not deny an individual employment or prospective employment but will limit his rights to obtain full consideration in the pension, retirement, or insurance plan. “Mr. JAVITS. I thank my colleague. That is important to business people.” 113 Cong. Rec. 31255 (1967). Reference is made by the dissent, post, at 219 n, 13, to a recital on §4 (f)(2) in the House Report. The House Report states: “[Section 4 (f) (2)] applies to new and existing employee benefit plans, and to both the establishment and maintenance of such plans. This exception serves to emphasize the primary purpose of the bill — hiring of older workers — by permitting employment without necessarily including such workers in employee benefit plans. The specific exception was an amendment to the original bill, is considered vita[l] to the legislation, and was favorably received by witnesses at the hearings.” H. R. Rep. No. 805, 90th Cong., 1st Sess., 4 (1967). (Emphasis supplied.) The italicized portion shows quite clearly that the primary purpose of the bill was the hiring of older workers. A quite different question would be presented if a pre-existing bona fide plan were used as a reason for refusing to hire an older applicant for employment. Question: What is the ideological direction of the decision reviewed by the Supreme Court? A. Conservative B. Liberal C. Unspeciﬁable Answer:
songer_respond1_3_2	I	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant. UNITED STATES v. AGRESTI. No. 301. Circuit Court of Appeals, Second Circuit. July 17, 1942. Russell, Shevlin & Russell, of New York City (Franklin F. Russell, Karl G. Kolish and Peter R. Dorsey, all of New York City, of counsel), for appellant. Vine H. Smith and Harold M. Kennedy, U. S. Atty., both of Brooklyn, N. Y., for appellee. Before L. HAND, AUGUSTUS N. HAND, and CLARK, Circuit Judges. L. HAND, Circuit Judge. This is an appeal from a judgment of conviction against a bankrupt for concealing his assets from his trustee. (§ 29, sub. b(l), of the Bankruptcy Act, 11 U.S.C.A. § 52, sub. b(l).) There was evidence from which a jury might have found the following facts. During the year 1937, the defendant, Agresti, did a small grocery business in Brooklyn, using the name Alfonso Marrone because his own credit was bad. All the property in the shop was his; he signed a lease for the premises and two applications for electricity. One Alfonso Marrone, a barber, was a cousin of Agresti; he allowed Agresti to use his name in the business but he had no actual part in its conduct. (Agresti swore that he had had a very active part, but the jury were free to believe Marrone.) By the autumn of 1937 the business had become unsuccessful and on November 3d four creditors filed an involuntary petition for the adjudication of an alleged bankrupt, described as Alfonso Marrone. On that day a subpoena was issued in the name of Marrone, which was returned without being served on the 13th; on that day an alias subpoena was issued, which in its turn was returned on the 19th also without being served. Thereupon on December 3d the court ordered service by publication under § 18, sub. a, and on December 20th Marrone consented to be adjudicated and an adjudication was entered against him on December 24th. The judge had appointed one Grimaldi a receiver on November 4th; he took possession of the premises on the 5th, and the creditors later elected him trustee. Marrone was subpoenaed to appear at the first meeting of creditors, he did so and at Agresti’s instigation he swore that he was the bankrupt. Agresti at no time appeared in the proceeding nor was he served. On August 8, 1939, the referee closed the estate and discharged the trustee. Late in October, 1937, Agresti had removed a large part of the contents of the shop in a truck and concealed or disposed of it. Of the four petitioning creditors one, Goodman, knew Agresti by that name, but Agresti told him he was doing business under the name Marrone, and Goodman dealt with him under it. A second of the petitioning creditors, Kirsch, dealt with him supposing his name to be Marrone. The landlord, Christiano, supposed so too. It does not appear except by inference with whom the other two petitioning creditors dealt—except as Agresti did all the business—or whether they knew Marrone. The judge left it to the jury to say whether the petitioners “filed the petition against this defendant.on trial under the name of Marrone”; if they did, “he would be the bankrupt,” because it made no difference that they sued him by the wrong name. Agresti had been previously indicted along with Marrone for concealing the same assets from Marrone’s trustee. When that indictment came on for trial the judge dismissed it upon the prosecution’s opening because it appeared that the property concealed had belonged to Agresti, and § 29, sub. b(l) only punished the concealment of the bankrupt’s property. Agresti now argues that he was never adjudicated a bankrupt but that Marrone was; and that for this reason the charge was not proved. He argues further that if this is not true, to convict him under this indictment will be to convict him of the same crime of which he was acquitted in the first prosecution. Section 4, sub. b, provides that “any natural person * * * may be adjudged an involuntary bankrupt upon default or an impartial trial”; § 18, sub. a, provides for personal service or service by publication against an alleged bankrupt. As Agresti did not appear and was not served personally, the validity of the adjudication against him depended upon whether publication under the name Marrone was good service against him; we will assume arguendo that it was not good service. Marrone’s appearance was not for Agresti; indeed it was intended to throw the creditors off Agresti’s scent by making it appear that the proceeding was against Marrone. Nevertheless, the jury necessarily found that the petitioners meant to proceed against Agresti when, following the judge’s charge, they found that Agresti was the bankrupt. There was ample evidence to support that finding; indeed unless Agresti’s testimony was believed, no other conclusion was possible. Therefore, at worst a petition was pending to adjudicate Agresti, under which a receiver was appointed who took possession of Agresti’s property. This was “property belonging to the estate of a bankrupt” because under § 1(4) the word “bankrupt” includes a person against whom an involuntary petition has been filed. When the creditors elected that receiver as their trustee, the appointment may have been a nullity—depending again upon the sufficiency of the publication—-but, even if so, the receiver remained a receiver in possession. Section 29, sub. b(l) makes it a crime to conceal assets “belonging to the estate of a bankrupt” from a receiver as well as from a trustee; and the evidence was ample to support the verdict that Agresti concealed his property. The fact that the creditors went on with the proceeding after Marrone appeared and that Marrone was examined as the bankrupt, was evidence, though not conclusive evidence, of their intent to file against him; but it was no more. Therefore the evidence 'brought Agresti within the terms of § 29, sub. b(l). This dispenses with any question of second jeopardy because the first indictment charged Agresti with concealing Marrone’s property from Marrone’s trustee, and this indictment is for concealing Agresti’s property from his own trustee; these were two separate crimes. It is true that there was a variance if Agresti was never served; for the indictment charged that, having been adjudicated a bankrupt, he concealed his ’ property from his trustee, and the proof would then be that, never having been adjudicated, he concealed it from his receiver. That was however obviously an immaterial variance which could and should be disregarded under § 391 of Title 28 U.S.C.A. Berger v. United States, 295 U.S. 78, 81-84, 55 S.Ct. 629, 79 L.Ed. 1314; Kalin v. United States, 5 Cir., 2 F.2d 58; Meyers v. United States, 2 Cir., 3 F.2d 379; Bimbo v. United States, 65 App.D.C. 246, 82 F.2d 852, 855. Conviction affirmed. Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Which category of federal government agencies and activities best describes this litigant? A. cabinet level department B. courts or legislative C. agency whose first word is "federal" D. other agency, beginning with "A" thru "E" E. other agency, beginning with "F" thru "N" F. other agency, beginning with "O" thru "R" G. other agency, beginning with "S" thru "Z" H. Distric of Columbia I. other, not listed, not able to classify Answer:
songer_appfiduc	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 "fiduciaries". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. D. O. MENASCO, Plaintiff in Error, v. F. G. HAWKINS, Defendant in Error. (Circuit Court of Appeals, Fifth Circuit. March 24, 1925.) No. 4476. In Error to the District Court of the United States for the Northern District of Mississippi, Edwin R: Holmes, Judge. Geo. J. Leftwich, of Aberdeen, Miss. (Leftwich & Tubb and Geo. J. Leftwich, all of Aberdeen, Miss., and C. H. King and A. B. Galloway, both of Memphis, Tenn., on the brief), for plaintiff in error. Geo. T. Mitchell and Chas. S. Mitchell, both of Tupelo, Miss., and L. M. Smith, of Memphis, Tenn., for defendant in error. Before WALKER, BRYAN, and FOSTER, Circuit Judges. PER CURIAM. This was an action by the plaintiff in error for alleged malicious prosecution. Nothing is presented for review, except rulings of the court on objections to evidence. We think that each of those rulings obviously is either so free from error or nonprejudicial that no more need be said than that none of them involved reversible error. The judgment is affirmed. Question: What is the total number of appellants in the case that fall into the category "fiduciaries"? Answer with a number. Answer:
songer_usc1sect	401	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 33. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA". NECHES CANAL CO. v. MILLER & VIDOR LUMBER CO. et al. Circuit Court of Appeals, Fifth Circuit. March 14, 1928. Rehearing Denied April 12, 1928. No. 5110. 1. Navigable waters <§=>26(l) — Lumber company using navigable stream held entitled to sue to restrain its obstruction by structure erected without permit (33 USCA §§ 401, 406). Lumber company, which used navigable stream, obstructed in violation of statute by defendants, who failed to obtain permit required by 33 USCA § 401 (Comp. St. § 9971), held entitled to sue for injunction for removal of the structure causing the obstruction, under section 40p (Comp. St. § 9917). 2. Courts <§=>288 — Suit to enjoin obstruction of navigable stream held maintainable in federal court as arising under laws of United States (33 USCA §§ 401, 406). Suit by lumber company to enjoin obstruction of navigable stream which company used, on ground that no permit bad been obtained for the obstruction, was, under 33 USCA §§ 401, 406 (Comp. St. §§ 9917, 9971), maintainable in the District Court, as one arising under the laws of the United States. 3. Navigable waters <§=>26(1) — Suit to enjoin obstruction of navigable stream and for damages held maintainable in equity, both as to granting of injunction and damages (33 USCA §§ 401,406). Suit by lumber company against canal company and city to enjoin obstruction of navigable stream, under 33 USCA §§ 401, 406 (Comp. St. §§ 9017, 9971), on account of defendant’s failure to procure required permit, was maintainable on equity side of the court, and equity could retain case to grant relief by way of damages prayed for, which could not he obtained in equity, except for the presence of the equitable feature of the case. 4. Navigable waters <@=26(3) — Lumber company held not entitled to loss of profits from closing mill due to obstruction of navigable stream, where condition of water from another cause would have prevented operation of mill (33 USCA §§ 401, 406). In suit by lumber company under 33 USCA §§ 401, 406 (Comp. St. §§. 9917, 9971), for obstruction by sand dam of navigable stream, which plaintiff used for conveying logs to its mill, plaintiff’s damages held limited to expense incurred in raising logs, which had sunk in river as result of the obstruction, and loss of profits on account of shutting down of mill was not recoverable, where evidence showed polluted condition of water backing up along river would have prevented continuance of operation of mill, even if dam had not been constructed. Appeal from the District Court of the United States for the Eastern District of Texas; William I. Grubb, Judge. Suit by the Miller & Vidor Lumber Company and others against the Neehes Canal Company and others for an injunction and damages. From an adverse decree, defendant named appeals. Modified, affirmed, and remanded. George Chilton, of Beaumont, Tex., for appellant. A. D. Lipscomb, Oliver J. Todd, and J. B. Morris, City Atty., all of Beaumont, Tex., for appellees. Before WALKER, BRVAN, and FOSTER, Circuit Judges. WALKER, Circuit Judge. The appellee Miller & Vidor Lumber Company, a Texas corporation, herein called the Lumber Company, filed in the court below its amended bill against the appellant, Neehes Canal Company, a Texas corporation, the city of Beaumont, Texas, a Texas municipal corporation, and the Beaumont Irrigation Company, a Texas corporation, praying an injunction restraining the parties sued from obstructing or maintaining in the Neehes river, without express authority from the Legislature of Texas and from the United States government, any embankment, dam, dike, or other obstruction preventing the free and open navigation of that river at all times by the Lumber Company, and for judgment against the parties sued for damages alleged to have been sustained by appellee from a dam alleged to have been erected in that river prior to the filing of the bill. The suit resulted in a decree which denied relief against the city of Beaumont and the Beaumont Irrigation Company, awarded against the appellant damages in a lump sum for the loss of profits which would have resulted from the operation of its mill near Beaumont during the time it was shut down, as stated below, for its expenses in raising logs which sank in the river, as stated below, and for depreciation in the value of its logs in the woods, which 'it was unable promptly to bring to its mill by reason of the dam mentioned, and dismissed the amended bill in so far as it sought an injunction, without prejudice to the Lumber Company again applying for an injunction in ease another structure should be threatened in the future, which does not comply with the acts of Congress and the orders of the War Department. The pleadings and evidence show as follows: The city of Beaumont, located on the Neehes river, about 60 miles from the Gulf of Mexico, owns a waterworks system for furnishing water, obtained from that river, to its inhabitants for drinking, domestic, and industrial purposes; its intake being located about 15 miles above the city. The appellant and the Beaumont Irrigation Company are engaged in supplying water for irrigation and industrial purposes, and procure their supplies of water from a bayou which connects with the Neehes river; their intakes being above the city’s and several miles above the mouth of the bayou. The Lumber Company owns and operates a lumber manufacturing plant located a short distance below the city of Beaumont, procures its supply of logs for its plant from timber lands located on the Neehes river more than 20 miles above Beaumont, and transports its logs in rafts by means of the Neehes river to its mill. In 1925 there was an unusually prolonged drought in East Texas, lasting throughout the summer of that year. During that drought salt water from the Gulf of Mexieo, polluted with sewage, dead fish, etc., made its way up the river above Beaumont. When it was discovered that the progress up the river of the polluted salt water was threatening to pollute the water supply of the city, of the appellant, and of the Beaumont Irrigation Company, the city, in co-operation with the appellant, without obtaining the permit required by the statute (U. S. C. tit. 33, § 401 [33 USCA § 401; Comp. St. § 9971]), constructed a sand dam across the Neehes about one mile below the city’s intake. If the progress of the pollute ed salt water up the river had not been arrested, the water supply of the city and of the appellant soon would have been rendered unfit for use for drinking, irrigation, or industrial purposes. When passage down the river was closed by the dam, the Lumber Company had in the river logs in rafts, some of which sank by reason of the obstruction created by the dam, and on hand at its plant sufficient timber to enable it to run for some time. When that supply of timber was used up, its mill was shut down about 26 days, until timber could be floated around the dam through a canal, with locks, which was constructed. During that time the Lumber Company was getting the water required for the operation of its plant from the Magnolia Petroleum Company, which during that time was getting its fresh water supply from the city waterworks. After the amended bill was filed, and before the rendition of the decree appealed from, the above-mentioned dam was washed out by freshets. The evidence adduced persuasively indicates that, if the progress up the river of the polluted salt water had not* been arrestedi at or about the time the dam across the river was completed, the water supply upon which the Lumber Company was dependent for the operation of its mill would soon have been cut off, because the water available was unfit for use, and that company, for the lack of a usable supply of water for itself and its employees, could not have continued to operate its mill during the time it was shut down. We do not think that that evidence warrants findings that, but for the dam, the Lumber Company, under then existing conditions, could have kept its mill in operation during the period it was shut down, and would have prevented the deterioration of the cut timber which remained in the woods while it could not be floated down the river because of the obstruction caused by the dam. The statute forbids the construction, in the absence of a prescribed permit, of such an obstruction of a navigable stream as the above-mentioned dam, and provides for the removal of such a structure being enforced by an injunction of a district court. U. S. C. tit. 33, §§ 401, 406 (33 USCA §§ 401, 406; Comp. St. §§ 9917, 9971). The Lumber Company, being the user of the navigable stream which was obstructed in violation of the statute, was a beneficiary of the statute forbidding its obstruction, and the remedy given by the statute was available in behalf of the Lumber Company. The suit was maintainable in the court below as one arising under the laws of the United States, as a right asserted and a remedy sought by the amended bill were based on acts of Congress. Cummings v. Chicago, 188 U. S. 410, 23 S. Ct. 472, 47 L. Ed. 525. When the suit was brought it was maintainable on the equity side of the court, as under the state of facts alleged in the amended bill the equitable remedy of injunction was grantable. The case, being properly in a court of equity, could he retained to grant relief which would not be grantable, but for the presence of the equitable feature when the suit was brought. We are of opinion that the expense incurred by the Lumber Company in raising its logs, which sank in the river as above stated, was attributable to the unlawful obstruction created by the dam, in the unlawful construction of which appellant participated, and that the court was not in error in awarding against appellant damages so caused. As above indicated, we are not of opinion that the evidence warranted awards of damages for the Lumber Company’s loss of profits during the time its mill was shut down, or for the depreciation in the value of its logs, the movement of which from where they were cut was delayed by the dam. The decree is modified, by striking the parts of it allowing to the Lumber Company damages for loss of profits and for depreciation of the value of its logs in the woods. As so modified, the decree is affirmed, and the cause is remanded, with direction that the court find from the evidence the amount of expense incurred by the Lumber Company in raising its logs, which sank in the river by reason of the obstruction created by the dam, and insert the amount so found in place of the amount awarded by the decree appealed from. Modified, affirmed, and remanded. 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 33? Answer with a number. Answer:
sc_lcdisagreement	A	What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the court opinion mentions that one or more of the members of the court whose decision the Supreme Court reviewed dissented. Focus on whether there exists any statement to this effect in the opinion, for example "divided," "dissented," "disagreed," "split.". A reference, without more, to the "majority" or "plurality" does not necessarily evidence dissent (the other judges may have concurred). If a case arose on habeas corpus, indicate dissent if either the last federal court or the last state court to review the case contained one. If the highest court with jurisdiction to hear the case declines to do so by a divided vote, indicate dissent. If the lower court denies an en banc petition by a divided vote and the Supreme Court discusses same, indicate dissent. UPSHAW v. UNITED STATES. No. 98. Argued November 12, 1948. Decided December 13, 1948. Joel D. Blackwell argued the cause for petitioner. With him on the brief was James T. Wright. Robert S. Erdahl argued the cause for the United States. With him on the brief were Solicitor General Perlman and Beatrice Rosenberg. Mr. Justice Black delivered the opinion of the Court. The petitioner was convicted of grand larceny in the United States District Court for the District of Columbia and sentenced to serve sixteen months to four years in prison. Pre-trial confessions of guilt without which petitioner could not have been convicted were admitted in evidence against his objection that they had been illegally obtained. The confessions had been made during a 30-hour period while petitioner was held a prisoner after the police had arrested him on suspicion and without a warrant. Petitioner’s objection to the admissibility of the confessions rested on Rule 5 (a) of the Federal Rules of Criminal Procedure and our holding in McNabb v. United States, 318 U. S. 332. Rule 5 (a) provides that “An officer making an arrest . . . shall take the arrested person without unnecessary delay before the nearest available” committing magistrate and when the arrested person appears before the magistrate “a complaint shall be filed forthwith.” Petitioner contended that the officers had violated this rule in detaining him as they did without taking him before a committing magistrate. In the Mc-Nabb case we held that confessions had been improperly admitted where they were the plain result of holding and interrogating persons without carrying them “forthwith” before a committing magistrate as the law commands. In this case the District Court thought that the McNabb ruling did not apply because the detention of petitioner “was not unreasonable under the circumstances as a matter of law.” Consequently, that court held the confessions admissible. On appeal to the United States Court of Appeals for the District of Columbia, the United States Attorney and his assistants detailed the circumstances of petitioner’s arrest and detention and confessed error. They concluded from these detailed circumstances that the “delay” in carrying petitioner before a committing magistrate “was unreasonable and the purpose of it, as stated by the officers themselves, was only to furnish an opportunity for further interrogation.” Under these circumstances, the district attorney thought that the McNabb rule made the confessions inadmissible without regard to whether they were “voluntary” in the legal sense. The delay in taking petitioner before a judicial officer was thought, in the words of the district attorney, to have been “for purposes inimical to the letter and spirit of the rule requiring prompt arraignment.” The Court of Appeals rejected this confession of error, one judge dissenting. 83 U. S. App. D. C. 207, 168 F. 2d 167. It read the McNabb case as explained in United States v. Mitchell, 322 U. S. 65, as holding that “A confession voluntarily given is admissible in evidence” while conversely “a confession involuntarily made is inadmissible.” 83 U. S. App. D. C. 207, 168 F. 2d 167. That court thought the McNabb case did no more than extend the meaning of “involuntary” confessions to proscribe confessions induced by psychological coercion as well as those brought about by physical brutality. Finding no psychological coercion in the facts of this case, the court concluded that the confessions were not the “fruit of the illegal detention.” The court also laid stress on the fact that the petitioner’s detention unlike McNabb’s, “was not aggravated by continuous questioning for many hours by numerous officers.” We hold that this case falls squarely within the McNabb ruling and is not taken out of it by what was decided in the Mitchell case. In the McNabb case we held that the plain purpose of the requirement that prisoners should promptly be taken before committing magistrates was to check resort by officers to “secret interrogation of persons accused of crime.” We then pointed out the circumstances under which petitioners were interrogated and confessed. This was done to show that the record left no doubt that the McNabbs were not promptly taken before a judicial officer as the law required, but instead were held for secret questioning, and “that the questioning of the petitioners took place while they were in the custody of the arresting officers and before any order of commitment was made.” The Me-Nabb confessions were thus held inadmissible because the McNabbs were questioned while held in “plain disregard of the duty enjoined by Congress upon federal law officers” promptly to take them before a judicial officer. In the McNabb case there were confessions “induced by illegal detention,” United States v. Mitchell, supra at 70, a fact which this Court found did not exist in the Mitchell case. In the Mitchell case although the defendant was illegally held eight days, the court accepted the record as showing that Mitchell promptly and spontaneously admitted his guilt within a few minutes after his arrival at the police station. Mitchell’s confessions therefore were found to have been made before any illegal detention had occurred. This Court then stated in the Mitchell opinion that “the illegality of Mitchell’s detention does not retroactively change the circumstances under which he made the disclosures.” Thus the holding in the Mitchell case was only that Mitchell’s subsequent illegal detention did not render inadmissible his prior confessions. They were held not to involve “use by the Government of the fruits of wrongdoing by its officers.” The Mitchell case at p. 68, however, reaffirms the McNabb rule that a confession is inadmissible if made during illegal detention due to failure promptly to carry a prisoner before a committing magistrate, whether or not the “confession is the result of torture, physical or psychological . . . .” In this case we are left in no doubt as to why this petitioner was not brought promptly before a committing magistrate. The arresting officer himself stated that petitioner was not carried before a magistrate on Friday or Saturday morning after his arrest on Friday at 2 a. m., because the officer thought there was not “a sufficient case” for the court to hold him, adding that even “if the Police Court did hold him we would lose custody of him and I no longer would be able to question him.” Thus the arresting officer in effect conceded that the confessions here were “the fruits of wrongdoing” by the police officers. He conceded more: He admitted that petitioner was illegally detained for at least thirty hours for the very purpose of securing these challenged confessions. He thereby refutes any possibility of an argument that after arrest he was carried before a magistrate “without unnecessary delay.” The argument was made to the trial court that this method of arresting, holding, and questioning people on mere suspicion was in accordance with the “usual police procedure of questioning a suspect . . . .” However usual this practice, it is in violation of law, and confessions thus obtained are inadmissible under the McNabb rule. We adhere to that rule. Reversed. After the evidence was all in, the trial judge stated that without the confessions there was “nothing left in the case.” The trial judge instructed the jury to acquit if they found that the petitioner had not confessed “voluntarily but because he was beaten.” On this issue of physical violence the jury found against the petitioner, and therefore this issue is not involved in this case. Our holding is not placed on constitutional grounds. Since the McNabb rule bars admission of confessions we need not and do not consider whether their admission was a violation of any of the provisions of the Fifth Amendment. Question: Does the court opinion mention that one or more of the members of the court whose decision the Supreme Court reviewed dissented? A. Yes B. No Answer:
songer_respond1_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. Marcus B. HARRIS, Plaintiff-Appellant, v. Manuel MENENDEZ, Mr. Hermida, State Attorney, C.N. Pisano, Sheriff, Defendants-Appellees. No. 86-3777 Non-Argument Calendar. United States Court of Appeals, Eleventh Circuit. May 27, 1987. Before FAY, ANDERSON and EDMONDSON, Circuit Judges. EDMONDSON, Circuit Judge: Marcus Harris appeals the district court’s dismissal of his pro se civil rights complaint. We affirm that dismissal. Harris was charged in a state court proceeding with violating two conditions of his probation. During the hearing on those two charges, which are not otherwise relevant here, the state notified the court of two new charges of uttering forged instruments, although no affidavit of the violation had been filed. The judge continued the revocation hearing so that the state could determine what it wished to do with the new charges. Judge Manuel Menendez presided over the second revocation hearing. Although Harris’ pleadings and appellate brief are not clear on this point, Mr. Hermida was apparently the state attorney who charged Harris. According to testimony at the hearing, Deputy Sheriff Carmen Pisano arrested Harris on the forgery charges after an alleged accomplice implicated and identified Harris. At the end of the hearing, Judge Menendez found, no violations concerning the two original charges, but revoked Harris’ probation based on the forged check charges. Harris appealed that decision, arguing that the forged check charges could not be used to revoke probation because they were not charged in the affidavit of probation violation. The Florida District Court of Appeals agreed and reversed the probation revocation. Harris then filed a 42 U.S.C. sec. 1983 complaint in the United States District Court for the Middle District of Florida, alleging that Judge Menendez, Mr. Hermida and Deputy Sheriff Pisano violated his constitutional rights by perjuring themselves and conspiring to have his probation improperly revoked. Harris also alleged that Pisano arrested him without probable cause. Harris filed the complaint pro se, along with an application to proceed in forma pauperis. Before service of Harris’ complaint, the district court dismissed the complaint as frivolous under 28 U.S.C. sec. 1915(d). Harris, currently incarcerated in the Hillsborough County Jail for reasons unknown to this court, appeals that decision. Federal courts are facing a barrage of civil rights petitions filed by prisoners. The number of such suits has risen from 218 in 1966 to 18,034 in 1984 and to 20,842 last year. One of the reasons for this surge in prisoner litigation is the authorization under 28 U.S.C.A. sec. 1915(a) to sue in forma pauperis (IFP) without prepayment of fees. An important adjunct of that license is the discretion afforded the district courts under section 1915(d) to sua sponte dismiss IFP proceedings if the suit is “frivolous or malicious.” The reasons for granting broader discretion in IFP suits than in ordinary civil actions are compelling. Persons proceeding IFP do not face the same financial obstacles as other litigants. IFP petitioners not only are exempt from customary court costs, but because of their poverty are practically immune from the financial deterrents to filing frivolous lawsuits, such as assignment of costs of the suit and tort liability for abuse of process. This immunity increases the temptation to file complaints which are factually unprovable or legally questionable. Green v. City of Montezuma, 650 F.2d 648, 651 (5th Cir. Unit B 1981); see also, Franklin v. Murphy, 745 F.2d 1221, 1226 (9th Cir.1984). No one should be allowed to misuse the courts with impunity. Certainly, nothing in section 1915 requires taxpayers to subsidize misuse of the courts. Prisoners possess several advantages over even the ordinary pro se litigant. Not only do prisoners have time to draft multiple and prolonged pleadings, but the state must provide free materials such as pen and paper and free services such as legal information and mailing privileges. Procup v. Strickland, 792 F.2d 1069, 1071 (11th Cir.1986) (en banc). Prisoners are also more tempted to file meritless complaints. In the words of Justice Rehnquist, “Though [an inmate] may be denied legal relief, he will nonetheless have obtained a short sabbatical in the nearest federal courthouse.” Cruz v. Beto, 405 U.S. 319, 327, 92 S.Ct. 1079, 1084, 31 L.Ed.2d 263 (1972) (Rehnquist, J., dissenting). Importantly, “meritless actions offer inmates an unrestricted method of harassing prison and law enforcement officials.” Phillips v. Mashburn, 746 F.2d 782 (11th Cir.1984). These frivolous claims impose a heavy cost on the justice system. The federal courts have limited resources. Every resource expended on a frivolous petition is one less resource available for the just adjudication of a valid petition. The sheer volume of frivolous civil rights complaints threatens to obscure the violations that actually need redress by the federal courts. As the number of these lawsuits rises, so does the probability that a federal judge will be unable to marshall the resources needed to rectify bona fide constitutional violations, or that a judge, worn-out and weary of worthless claims, will prematurely dismiss a valid petition. Accordingly, the principle that every truly abused prisoner deserves judicial attention requires that district courts dispose as quickly and expeditiously as possible of petitions by prisoners who are merely discontented, malicious, or bored. The Federal Rules of Civil Procedure, designed as they were for litigants facing the economic barriers inherent in the American legal system, do not offer district courts much help in this task. For example, a district court judge considering whether to dismiss a petition under Fed.R.Civ.P. 12(b)(6) for failure to state a claim must accept the allegations in the petition as true. Cooper v. Pate, 378 U.S. 546, 546, 84 S.Ct. 1733, 1734, 12 L.Ed.2d 1030 (1964). Thus, a “reasonably intelligent prisoner with a willingness to misrepresent facts can often avoid both 12(b) dismissal and summary judgment, although he actually has no chance of eventual success in his suit.” Jones v. Bales, 58 F.R.D. 453 (N.D.Ga.1972), aff'd for reasons stated in district court order, 480 F.2d 805 (5th Cir.1973). A district court judge, however, is not confined to the Federal Rules of Civil Procedure in IFP cases. When it enacted those rules, Congress left intact the broad mandate of 28 U.S.C. sec. 1915(d), which allows a judge to dismiss “frivolous or malicious” IFP claims. Observing that a frivolous appeal under sec. 1915(d) is one “without arguable merit,” we have explained that in an IFP civil rights action, a trial court should determine whether there is “a factual and legal basis, of constitutional dimension, for the asserted wrong.” Watson v. Ault, 525 F.2d 886, 892 (5th Cir.1976). We note that some circuits have overlooked the reasons for the liberal grant of discretion in IFP cases and have held that the standard for determining when a suit is “frivolous” is the same as that for dismissal of a case under Fed.R.Civ.P. 12(b)(6). See, e.g., Boyce v. Alizaduh, 595 F.2d 948, 951-52 (4th Cir.1979). This circuit, however, has not merged the two standards, specifically holding that a court’s authority to dismiss a complaint as frivolous under section 1915(d) is broader than dismissal under Fed.R.Civ.P. 12. Montana v. Commissioner’s Court, 659 F.2d 19, 21 (5th Cir.1981), cert. denied, 455 U.S. 1026, 102 S.Ct. 1730, 72 L.Ed.2d 147 (1982). It is true that some precedent of this circuit might be interpreted as holding that the standard for dismissal under sec. 1915(d) is the same as that for dismissal under Rule 12(b)(6). In those cases, however, the issue was whether the IFP petition was legally sufficient or failed to state a claim. See, e.g., Lee v. Evans, 789 F.2d 885 (11th Cir.1986) (implied); Neary v. Dugger, 766 F.2d 456 (11th Cir.1985); Harmon v. Berry, 728 F.2d 1407 (11th Cir.1984) (implied); Green v. City of Montezuma, 650 F.2d 648 (5th Cir. Unit B 1981); Bruce v. Wade, 537 F.2d 850, 852 n. 2 (5th Cir.1976). When the question is the legal sufficiency of an IFP complaint, the inquiry seems the same under either sec. 1915(d) or Rule 12(b)(6). Green v. City of Montezuma, 650 F.2d at 651; Montana v. Commissioners Court, 659 F.2d at 21. The fact that the two standards may coincide when the sufficiency of a complaint is specifically at issue, however, in no way signifies that a court may dismiss a claim as frivolous under sec. 1915(d) only when it is legally insufficient under Rule 12(b)(6). Watson v. Ault, 525 F.2d 886 (5th Cir.1976); cf. Boag v. MacDougall, 454 U.S. 364, 365 n. , 102 S.Ct. 700, 701 n. , 70 L.Ed.2d 551 (1982) (refusing to decide whether legally sufficient complaint was frivolous under sec. 1915(d)). In fact, the precedent of this circuit compels the opposite conclusion. In 1973, this circuit’s predecessor, the former Fifth Circuit, affirmed the opinion in Jones v. Bales, 58 F.R.D. 453 (N.D.Ga. 1972), for the reasons and authorities cited by the district court. Jones v. Bales, 480 F.2d 805 (5th Cir.1973). By doing so, the former Fifth Circuit effectively adopted and republished as an appellate opinion the district court’s opinion in Jones. In that opinion, the district court allowed the plaintiff prisoner to proceed IFP. After months of discovery and other proceedings, the district court noted that the plaintiff’s allegations “simply strain credulity” and dismissed the action under sec. 1915(d) as “frivolous and perhaps malicious.” Id. at 461. In affirming that opinion, the Fifth Circuit approved the principle that an IFP complaint that states a claim under Rule 12(b)(6) may nevertheless be dismissed under sec. 1915(d) as soon as the court becomes convinced that it is frivolous, that is, that “the plaintiff’s realistic chances of ultimate success are slight.” Id. at 464. Succeeding cases might have used language that confused the issue, but none has eroded the principle that a legally sufficient IFP complaint may still be dismissed as frivolous. Of course, a district court must conduct a sufficient inquiry into the matter to be certain both legally and factually that the plaintiff has little or no chance of success. Ibarra v. Olivarri, 587 F.2d 677, 677 (5th Cir.1979); Taylor v. Gibson, 529 F.2d 709, 715-16 (5th Cir.1976). What inquiry is sufficient depends upon the circumstances of the case. In making that inquiry, however, the district court is not bound by the strictures of Rule 12(b)(6). See generally Taylor v. Gibson, 529 F.2d at 717 (giving examples of 1915(d) dismissals of complaints that are both legally and facially sufficient). Thus, for instance, a court may require the plaintiff to particularize his allegations prior to service of process, Watson v. Ault, 525 F.2d at 892, and may “ascertain whether there is a factual basis for the petitioner’s suit.” Id. at 891 (citing Jones v. Bales). Cf. Wright v. Newsome, 795 F.2d 964, 967 (11th Cir.1986) (error to dismiss complaint on Rule 12(b)(6) grounds before service); Williams v. Rhoden, 629 F.2d 1099, 1101 (5th Cir.1980) (when district court refuses to allow plaintiff to proceed IFP, court may not dismiss under sec. 1915(d)). Section 1915(d) is a broad grant of discretion to the courts regarding management of IFP actions. Consequently, when reviewing a sec. 1915(d) dismissal, our inquiry is limited to whether the dismissal was an abuse of discretion. See Camp v. Oliver, 798 F.2d 434, 437 (11th Cir.1986). In Harris’ case, the district court dismissed his petition upon determining that two of the defendants would be immune from liability. The record amply supports the district court’s conclusion. Judge Menendez was clearly acting within his jurisdiction in ruling on Harris’ probation revocation; therefore, he is absolutely immune from a suit for damages. Dennis v. Sparks, 449 U.S. 24, 27-29, 101 S.Ct. 183, 186-87, 66 L.Ed.2d 185 (1980). State attorney Hermida is also immune from a suit for damages for prosecuting Harris. Imbler v. Pachtman, 424 U.S. 409, 430, 96 S.Ct. 984, 995, 47 L.Ed.2d 128 (1976); Cook v. Houston Post, 616 F.2d 791, 793 (5th Cir.1980). Harris alleges that Sheriff Pisano violated his constitutional rights by arresting him without probable cause. We find nothing in either Harris’ brief or the record to support this assertion. Finally, Harris claims that the three defendants conspired to prosecute him through the use of a “phantom affidavit.” The district court apparently construed this phrase to mean a false affidavit. The record reveals that the only irregularity associated with the second revocation hearing was the absence of an affidavit. Furthermore, as the district court noted, “but for the technical violation of Harris’ rights there was ample evidence supporting the revocation of his parole.” If, on the other hand, Harris meant the term “phantom affidavit” to describe the absence of an affidavit, his claim still must fall. Harris gives no other basis for his claim of conspiracy, and a naked assertion of conspiracy is an insufficient foundation for a section 1983 claim. Phillips v. Mashburn, 746 F.2d 782 (11th Cir.1984). Furthermore, Harris has a history of filing numerous pro se, IFP petitions. Even if the complaint in this case is facially sufficient pursuant to Rule 12(b)(6), we agree that plaintiff’s realistic chances of ultimate success are slight and that the action is frivolous. A district court may, as it did in the present case, dismiss an I.F.P. lawsuit prior to service of process. Phillips v. Mashburn, 746 F.2d 782, 784 (11th Cir.1984). One of the purposes of section 1915(d) is to spare defendants the inconvenience and expense of answering a frivolous complaint. Woodall v. Foti, 648 F.2d 268 (5th Cir.1981). See also Federal Judicial Center, Recommended Procedures for Handling Prisoner Civil Rights Cases in the Federal Courts 59 (1980) (recommending that courts determine frivolity of IFP petitions before issuing process to protect defendants from the burden of answering a frivolous petition). In light of these facts and conclusions, we find no abuse of discretion in the district court’s dismissal of Harris’ petition and AFFIRM. . The Florida appellate court noted that there was an indication that the trial court had before it an amended affidavit, but none was in the record. . Annual Report of the Director of the Administrative Office of the United States Courts for the Twelve Month Period Ended June 30, 1984, at 142-43; Annual Report of the Director of Administrative Office of the United States Courts for the Twelve Month Period ended June 30, 1986, Appendix I at 21. . In Stein v. Reynolds Securities, Inc., 667 F.2d 33, 34 (11th Cir.1982), the Eleventh Circuit Court of Appeals adopted as precedent all decisions of Unit B of the former Fifth Circuit. . In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981) (en banc), this court adopted as precedent all decisions of the former Fifth Circuit Court of Appeals decided prior to October 1, 1981. . There is no inconsistency between the Watson v. Ault statement that a "frivolous” claim is one "without arguable merit" and the definition of "frivolous" action accepted by this circuit in Jones v. Bales, that is, an action in which “the plaintiff’s realistic chances of ultimate success are slight.” Arguable means capable of being convincingly argued. Webster’s Ninth New Collegiate Dictionary 102 (1986). An action or claim in which "the plaintiff’s realistic chances of ultimate success are slight" is not one capable of being convincingly argued. If there were any inconsistency, Jones v. Bales, which is soundly reasoned and is the earliest binding precedent defining the term “frivolous” under section 1915(d), would control over subsequent contrary cases. Robinson v. Tanner, 798 F.2d 1378, 1383 (11th Cir.1986) (earlier of conflicting cases to be followed); Dorse v. Armstrong World Industries, Inc., 798 F.2d 1372, 1378 (11th Cir.1986) (follow case most consistent with common sense and reason). . Our review of the court records of the United States District Court for the Middle District of Florida, see ITT Rayonier, Inc. v. United States, 651 F.2d 343, 345 n. 2 (5th Cir. Unit B 1981) (court may take judicial notice of its own records and records of lower courts), reveals that Harris has filed nine pro se IFP petitions since January 1, 1985. Of those petitions, none has yet reached the stage of trial on the merits; five were disposed of adversely to Harris. See generally, Jones v. Bales, 587 F.R.D. at 465 n. 4 (past lack of success relevant to consideration of chances of ultimate success), aff’d 480 F.2d 805 (5th Cir.1973). . The concurring opinion argues that there is no need to reach the question of the scope of a district court’s power to dismiss an IFP action as frivolous pursuant to section 1915(d), because the complaint fails to state a claim under Fed.R.Civ.P. 12(b)(6) in any event. The district court in this case, however, did not dismiss pursuant to Rule 12(b)(6). The district court’s judgment and order of dismissal do not mention in any way failure to state a claim or Rule 12(b)(6). Rather, the district court dismissed the action as frivolous pursuant to section 1915(d). Therefore, this case squarely presents the question of a district court’s power to dismiss a lawsuit as frivolous under section 1915(d). Harris’ complaint probably does not state a claim upon which relief can be granted; there is some doubt about this conclusion, however. Harris’ pro se complaint and attached documents, when liberally construed, allege that Sheriff Pisano arrested Harris without a warrant or probable cause, knowing that the information incriminating Harris was false. These allegations are not otherwise supported by the materials plaintiff attached to the complaint and are probably so conclusory as to fail to state a cause of action. Nonetheless, whether or not Harris' complaint actually states a cause of action in this respect is a hard question that neither the district court nor this court need decide. Section 1915(d) enables a district court to dismiss a lawsuit as frivolous without making the sometimes difficult and delicate determination of whether a complaint actually states a cause of action. . "I must say, as a litigant, I should dread a lawsuit beyond almost anything else short of sickness and death.” J. Frank, Courts on Trial 40 (1950) (quoting Judge Learned Hand). 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_respond1_1_4	B	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "transportation". Your task is to determine what subcategory of business best describes this litigant. SAN MARTINE COMPANIA DE NAVEGACION, S.A., Appellant, v. SAGUENAY TERMINALS LIMITED, Appellee. No. 16666. United States Court of Appeals Ninth Circuit. Aug. 2, 1961. Dorr, Cooper & Hays and John Hays and W. K. Mordock, Jr., San Francisco, Cal., Chadbourne, O’Neill & Thomaon and John B. Whalen, New York City, Anderson, Wrenn & Jenks and Martin Anderson, Honolulu, Hawaii, for appellant. Lillick, Geary, Wheat, Adams & Charles and Gilbert C. Wheat and Willard G. Gilson, San Francisco, Cal., and Haight, Gardner, Poor & Havens and William J. Junkerman, New York City, for appellee. Before CHAMBERS, POPE and JERTBERG, Circuit Judges. POPE, Circuit Judge. In July, 1955, the appellee, here called Saguenay, as charterer, chartered the vessel Santa Ana from the appellant San Martine, owners, for portions of each of four ensuing years. The ship was operated under the charter until the owners, by notice dated November 9, 1956, invoked the clause of the charter party which provided that in the event that Canada, the United Kingdom, or the United States, became involved in hostilmercantile marine by any of those ities leading to the requisition of their countries, the owners and the charterers should have the right to cancel the charter upon completion of the voyage upon which she was actually engaged. In serving a notice upon Saguenay, the owners relied upon the Suez Canal attack which commenced in October, 1956, as the hostilities which gave rise to the right to cancel. Saguenay requested withdrawal of the notice; that however, was refused. It obtained a replacement for the vessel from others at a higher charter rate and brought suit against San Martine in the court below alleging breach of charter and seeking recovery of damages for the claimed ensuing loss. The Santa Ana was seized to obtain security for the damage claimed. San Martine then invoked clause 17 of the charter party which provided for arbitration; and the district court suspended the action and ordered the parties to proceed to arbitration.. During these proceedings, in order to induce the district court to set a low bond for the release of the Santa Ana, San Martine offered to tender the Santa Ana or another vessel to Saguenay. Another vessel, The Linda, was thus tendered and accepted for the 1957 period, and Saguenay paid hire therefor at the charter party rate. The following year, an offer of tender of another vessel for the 1958 period was refused by Saguenay. The district court refused to instruct it to accept a vessel for this period, refused to exonerate the bond, and directed the parties to proceed with the arbitration. This order was made April 11, 1958. Thereafter, under date of July 3, 1958, the parties made a supplemental arbitration agreement and thereafter arbitration proceeded under the order of the court and under this supplemental agreement. That agreement recited at considerable length in sundry “whereas” clauses various transactions between the parties up to that date: the execution of the charter party; its general provisions; the commencement of performance; the giving of the notice to cancel the charter; the dispute between the parties relating to notice; the invoking of the arbitration clause; the institution of libel against the owners with foreign attachment against the Santa Ana in the United States District Court for the District of Hawaii; the fixing of bond; the order to proceed to arbitration ; the appointment of the arbitrators; the tender and use of “The Linda” in 1957; a recital that the parties disagreed as to the basis of such tender and as to its legal consequences; the reactivation of the district court proceedings; the direction of the court to proceed with arbitration; the dispute over the tender of another vessel for the 1958 period, and then proceeded as follows: “Whereas, the parties are willing and desirous that all disputes between them arising out of all matters and events related above be decided by the arbitrators; “Now, Therefore, the parties hereto mutually covenant and agree for themselves, their successors and assigns, as follows: “1. The parties hereto submit to Messrs. Pattington, Boyle and Rees at Montreal, Quebec, all disputes between them arising out of the notice of November 9th, 1956, and all claims which they assert against each other as a result of such notice and of the actions and positions which they respectively took thereafter and do further agree that the decision and awards of said arbitrators or of any two of them shall be final and that such decision and awards shall be made an order of the United States District Court for the District of Hawaii. “2. Any amount or amounts payable under the terms of such order shall be paid in currency of the United States of America within fifteen days from the date of such order with interest at the rate of five per centum (5%) per annum from such date or dates as may be fixed by the decision and awards of the arbitrators. Failing payment within such delay, the party entitled to receive payment under the terms of such order shall have the right to apply to any Court having jurisdiction over the other party or its assets to enforce such order. “3. The arbitration shall be divided into two parts. The first part shall deal with the dispute as to the rights of the Owners in the light of the circumstances then existing to give their notice of November 9, 1956, and the second part shall deal with all other matters including such damages, if any, recoverable by the parties or either of them as a result of the giving of such notice and of their actions thereafter.” The first part of the decision or award of the arbitrators was to the effect that San Martine was within its rights in cancelling the charter by its notice of cancellation. This portion of the award is not disputed or involved in this suit; —what is involved is the ruling of the arbitrators with respect to the second part of the arbitration. In this part the arbitrators ruled “that Saguenay should pay to the owners * * * the sum of $26,360, being the profit that Saguenay admit having made on the operation of the S/S ‘Linda’ during the 1957 season.” The arbitrators also held that the owners were entitled to compensation “for the loss of time to their ship and expenses in connection with the detention at Hawaii amounting to $30,984.52, details of which are stated in our statement No. 1 attached hereto.” The statement referred to itemized losses for detention at Honolulu for nine days; expenses incident thereto; running expenses; fuel consumed, and miscellaneous out of pocket expenses, all totaling the sum previously mentioned. The determination respecting the right of San Martine to give the notice was confirmed by the court without contest, but upon motion of Saguenay the other items of the award, namely, the damages of $26,360, and the item of $30,-984.52, were ordered deleted from the award and the award was modified accordingly. The motion which this order granted was based “upon the ground and for the reason that said items of award are not in accordance with law and beyond the scope of the arbitrators’ authority.” The order found the objections well taken; that the arbitrators in the respects mentioned “exceeded their jurisdiction and that the award of damages in the above amount was beyond the scope of the arbitrators’ authority.” Upon this appeal, in which appellant assigns error in the court’s modification of the arbitrators’ award, it may be assumed that the reasons for the trial court’s action in this respect were substantially the same as those now presented by the appellee in support of the trial court’s decision. Presumably the same argument was made in the court below. Appellee’s argument in support of the action of the trial court is substantially this: The appellee, Saguenay, is not charged, and cannot be charged, with any acts constituting breaches of the charter party; its receipt of the tender of The Linda amounted to no more than an acquiescence in that which San Martine, the owner, voluntarily offered; the libeling of the Santa Ana at Honolulu and its detention there rather than at Tampa, Florida, could not be asserted to be a violation of any provision of the charter party. (Appellant concedes that as a general proposition an aggrieved party may proceed by admiralty attachment despite a provision for arbitration.) What the arbitrators found was: “We consider that Saguenay acted arbitrarily and unreasonably in not taking action (to which they were clearly entitled) of arresting the S/S ‘Santa Ana’ at Tampa, Florida.” Appellee’s argument is therefore that since none of the things done by Saguenay for which damages were awarded constituted a breach or violation of the charter party, the arbitrators had no authority to award the damages here in question. In short, the contention is that the arbitrators before awarding damages must first have found that Saguenay had breached or violated the charter party, and since the arbitrators did not and could not make any such finding, the award of these sums was in excess of their authority. We find it unnecessary to consider whether this argument as to the finding of breach of the charter party as a necessary prerequisite to an award of damages would be a valid one if the arbitration here took place pursuant to the provisions of Sec. 17 of the charter party quoted in footnote 1, supra. It is plain that the arbitration here involved was not made solely according to that provision but proceeded under and pursuant to the supplemental agreement for arbitration of July 3, 1958, the terms of which we have previously described. A reference to that agreement discloses that after reciting at considerable length all the preceding dealings and negotiations between the parties, and the acts and things done by them, the parties agreed to submit to arbitration “all disputes between them arising out of the notice of November 9, 1956, and all claims which they assert against each other as a result of such notice, and of the actions and positions which they respectively took thereafter.” (Emphasis added.) In the third paragraph of the operative portion of the agreement it was provided that the arbitration should be in two parts: the first part dealing with the notice of cancellation and its consequences ; and the second part dealing with all other matters including the damages recoverable as a result of such notice and as a result “of their actions thereafter”(Emphasis added.) It seems to us that the broad and all-inclusive terms of that agreement furnish a complete answer to the contention that the only damages authorized to be awarded were those arising from a breach or violation of the charter party. Clearly enough there is submitted to the arbitrators all claims of either party against the other as a result of “the actions and positions which they respectively took thereafter” (that is to say, after the notice) and it contemplated damages recoverable by either of the parties from the other as a result “of their actions thereafter”. It is our opinion that the awards here made came within these broad and general terms just referred to. The record shows that San Martine claimed before the arbitrators, among other things, that it be awarded some $107,000 as damages sustained during the 1957 season by virtue of the chartering of The Linda as substitute for the Santa Ana. This claim appears to have been based upon the contention that the fair value of the use of The Linda exceeded the payments made pursuant to the charter for its use by that amount. This claim the arbitrators disallowed; but they did hold in making the award that Saguenay should not be entitled to any profit for using The Linda in 1957 and the $26,360 awarded in this connection were the admitted profits made by Saguenay from the use of The Linda. With respect to the other item of damages, the arbitrators recited: “We are at a loss to understand why Saguenay bypassed Tampa, Florida, to libel the vessel as she was loading scrap at that port for about three weeks — if action has been taken at that port, the vessel would not have been delayed and little, if any, expense incurred.” The arbitrators then proceeded in the manner we have previously indicated to hold that Saguenay “acted arbitrarily and unreasonably” in not arresting the Santa Ana at Tampa, Florida. It may well be that the arbitrators’ views of the facts and of the law relating to the matters on account of which they awarded damages are open to serious question. Were it material here it might be possible to question whether the award for the profits received from The Linda would come within the ordinary rules of law relating to unjust enrichment or recovery therefor. With respect to the award arising out of San Martine’s expenses incident to the attachment detention of the Santa Ana at Honolulu, it may well be that the arbitrators’ view of the law was questionable. There is no proof of malice in making attachment there rather than at Tampa, and hence the arbitrators may have been mistaken in their view of the law respecting abuse of process, if that was the rationale of their decision. But an award such as this, which is one within the terms of the submission, will not be set aside by a court for error either in law or fact. This rule and the reasons for it were set forth in Burchell v. Marsh, 17 How. 344, 58 U.S. 344, 349, 15 L.Ed. 96: “Arbitrators are judges chosen by the parties to decide the matters submitted to them, finally and without appeal. As a mode of settling disputes, it should receive every encouragement from courts of equity. If the award is within the submission, and contains the honest decision of the arbitrators, after a full and fair hearing of the parties, a court of equity will not set it aside for error, either in law or fact. A contrary course would be a substitution of the judgment of the chancellor in place of the judges chosen by the parties, and would make an award the commencement, not the end, of litigation.” As stated in Amicizia Societa Navegazione v. Chilean Nitrate and Iodine S. Corp., 2 Cir., 274 F.2d 805, 808: “The statutory provisions, 9 U.S.C.A. §§ 10, 11, in expressly stating certain grounds for either vacating an award or modifying or correcting it, do not authorize its setting aside on the grounds of erroneous finding of fact or of misinterpretation of law.” As noted in the case just cited, the Supreme Court in Wilko v. Swan, 346 U.S. 427, 436, 74 S.Ct. 182, 187, 98 L.Ed. 168, stated, (probably by way of dictum): “In unrestricted submissions * * * the interpretations of the law by the arbitrators in contrast to manifest disregard are not subject, in the federal courts, to judicial review for error in interpretation,” citing Burchell v. Marsh, supra, and other cases. The court did not undertake to define what it meant by “manifest disregard” or indicate where the line would be drawn between a case of “manifest disregard” and a case of error in interpretation of the law. In this context it would appear that manifest disregard of the law must be something beyond and different from a mere error in the law or failure on the part of the arbitrators to understand or apply the law. In the later case of Bernhardt v. Polygraphic Co., 350 U.S. 198, 203, 76 S. Ct. 273, 276, 100 L.Ed. 199, the court said: “Arbitrators do not have the benefit of judicial instruction on the law; they need not give their reasons for their result; the record of their proceedings is not as complete as it is in a court trial; and judicial review of an award is more limited than judicial review of a trial-all as discussed in Wilko v. Swan, 346 U. S. 427, 435-438, 74 S.Ct. 182, 186, 188, 98 L.Ed. 168.” At this point is inserted a footnote beginning: “Whether the arbitrators misconstrued a contract is not open to judicial review”. We apprehend that a manifest disregard of the law in the context of the language used in Wilko v. Swan, supra, might be present when arbitrators understand and correctly state the law, but proceed to disregard the same. We think this is the sort of thing the Court had in mind in United Steelworkers of America v. Enterprise Corp., 363 U.S. 593, 597, 180 S.Ct. 1358, 1361, 4 L.Ed.2d 1424, when it said “Nevertheless, an arbitrator is confined to interpretation and application of the collective bargaining agreement; he does not sit to dispense his own brand of industrial justice. He may of course look for guidance from many sources, yet his award is legitimate only so long as it draws its essence from the collective bargaining agreement. When the arbitrator’s words manifest an infidelity to this obligation, courts have no choice but to refuse enforcement of the award.” (Emphasis added.) Similar manifest infidelity to what the arbitrators know to be the law, but deliberately disregard might well be regarded as the use of “undue means” within the meaning of subdivision (a) of 9 U.S.C. § 10, or amount to “partiality” within the meaning of subdivision (b) thereof. We find no evidence of any such situation here. As was noted in Amicizia Societa, supra [274 F.2d 808], the statutory grounds for vacating or modifying the award of arbitrators are stated in Secs. 10 and 11 of Title 9 U.S.C., and neither section authorizes the setting aside of an award “on grounds of erroneous finding of fact or misinterpretation of law”. It is inconceivable that in enacting these sections Congress was unaware of the rule of Burchell v. Marsh, supra, to the effect that a court will not set aside a decision of the arbitrators for error either in law or fact. Had Congress contemplated that any different rule should now become operative, or that a mere error of law should be a basis for setting aside an award, it would have had no difficulty in drafting a separate subdivision of sections 10 or 11 which would say that. We hold therefore that since the supplemental agreement between the parties was broad enough to authorize the board of arbitrators to consider and decide the disputes between the parties which are here in question, the court below was without authority to set aside this award. The arbitrators themselves had not exceeded their powers. As for the comment of the court (footnote 2, supra), that there was here involved an award for damages of a punitive nature, we find no basis for such a comment. Manifestly nothing of that kind was included or involved in this award. The judgment is reversed and the cause is remanded with directions to sustain and confirm the award in all particulars, and to take such further action as may be required not inconsistent with this opinion. . “17: That should any dispute arise between owners and the Charterers, the matter in dispute shall be referred to three persons at Montreal, Que., one to be appointed by each of the parties hereto, and the third by the two so chosen; their decision or that of any two of them shall be final, and for the purpose of enforcing any award, this agreement may be made a rule of the court. The arbitrators shall be commercial men.” . The order also recited: “That the question of an award for damages of a punitive nature is a matter for this Court and since this Court is of the opinion that the libel was filed in good faith, no punitive damages will be allowed but costs shall be taxed to Libelant in accordance with law.” . Cf. Hartford Fire Ins. Co. v. Bonner Mercantile Co., 9 Cir., 56 F. 378, 382: “There is no doubt that the umpire decided the points of difference between the arbitrators, and, having done so, and his award having met the approval of one of the arbitrators, his judgment is conclusive, however erroneous the court may be inclined to consider it.” James Richardson & Sons v. W. E. Hedger Transp. Corp., 2 Cir., 98 F.2d 55, 57: “This court is without power to amend or overrule merely because of disagreement with matters of law or facts detei’mined by the arbitrators.” . Frankly, the Supreme Court’s use of the words “manifest disregard”, has caused us trouble here. Conceivably the words may have been used to indicate that whether an award may be set aside for errors of law would be a question of degree. Thus if the award was based upon a mistaken view of the law, but in their assumption of what the law was, the arbitrators had not gone too far afield, then, the award would stand; but if the error is an egregious one, such as no sensible layman would be guilty of, then the award could be set aside. Such a “degree of error” test would, we think, be most difficult to apply. Results would likely vary from judge to judge. We believe this is not what the court had in mind when it spoke of “manifest disregard”. . While that case involved arbitration of a labor dispute, and hence in some respects governed by special rules, (see United Steelworkers of America v. Warrior & Gulf Co., 363 U.S. 574, 578, 80 S.Ct. 1347, 4 L.Ed.2d 1409) yet it would appear that the language here quoted would be considered generally applicable to any arbitration. . “(a) Where the award was procured by corruption, fraud, or undue means. “(b) Whore there was evident partiality or corruption in the arbitrators, or either of them.” . “§ 10. * * * In either of the following cases the United States court in and for the district wherein the award was made may make an order vacating the award upon the application of any party to the arbitration— “(a) Where the award was procured by corruption, fraud, or undue means. “(b) Where there was evident partiality or corruption in the arbitrators, or either of them. “(c) Where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced. “(d) Where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made. “(e) Where an award is vacated and the time within which the agreement required the award to be made has not expired the court may, in its discretion, direct a rehearing by the arbitrators.” “§ 11. * * * In either of the following cases the United States court in and for the district wherein the award was made may make an order modifying or correcting the award upon the application of any party to the arbitration— “(a) Where there was an evident material miscalculation of figures or an evident material mistake in the description of any person, thing, or property referred to in the award. “ (b) Where the arbitrators have awarded upon a matter not submitted to them, unless it is a matter not affecting the merits of the decision upon the matter submitted. “(c) Where the award is imperfect in matter of form not affecting the merits of the controversy. “The order may modify and correct the award, so as to effect the intent thereof and promote justice between the parties.” Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "transportation". What subcategory of business best describes this litigant? A. railroad B. boat, shipping C. shipping freight, UPS, flying tigers D. airline E. truck, armored cars F. other G. unclear Answer:
songer_confess	A	What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court conclude that a confession or an incriminating statement was improperly admitted? Consider only incriminating statements made by the defendant." Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless". Darrick A. ROGERS, Petitioner-Appellee, v. Norris W. McMACKIN, Superintendent, Respondent-Appellant. No. 88-4092. United States Court of Appeals, Sixth Circuit. Argued May 25, 1989. Decided Aug. 28, 1989. J. Dean Carro (argued), University of Akron School of Law, Appellate Review Office, Akron, Ohio, for petitioner-appellee. Donald G. Keyser, Asst. Atty. Gen. (argued), Office of the Atty. Gen. of Ohio, Columbus, Ohio, for respondent-appellant. Philip D. Bogdanoff, Asst. Pros. Atty., Akron, Ohio, amicus curiae. Before MILBURN and NELSON, Circuit Judges, and BERTELSMAN, District Judge. The Honorable William 0. Bertelsman, United States District Judge for the Eastern District of Kentucky, sitting by designation. DAVID A. NELSON, Circuit Judge. This is a habeas corpus case brought by a man who was convicted, in a state court bench trial, of aggravated robbery and involuntary manslaughter. The question presented is whether the petitioner’s constitutional right to be confronted with the witnesses against him was violated by the receipt into evidence of a nontestifying co-defendant’s confession. On the strength of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), and Lee v. Illinois, 476 U.S. 530, 106 S.Ct. 2056, 90 L.Ed.2d 514 (1986), the federal district court concluded that the use of the confession constituted error of constitutional magnitude. Finding that the error was not harmless, the court granted the writ. We think the district court erred in applying Bruton and Lee to this case. Bru-ton was concerned with jury trials, and rested on the proposition that juries cannot be trusted to consider a nontestifying co-defendant’s confession solely in relation to that defendant’s case. Bruton was not concerned with bench trials, and Lee did not hold that the rule in Bruton should be applied automatically to bench trials. The record in the present case does not suggest that the state trial judge relied on the co-defendant’s confession in determining petitioner’s guilt, and the state court’s decision to let the confession be introduced as evidence of the guilt of the person making the confession was constitutionally permissible, in our view. I Darrick A. Rogers, the petitioner herein, was charged with participation in the robbery of an Akron, Ohio, restaurant and the fatal shooting of its proprietor. The evidence against Mr. Rogers consisted primarily of his own confession — a confession that varied substantially from what he told the police initially. On the day after the shooting, it appears, Mr. Rogers sought out a cousin, who was an Akron police officer, to say that an acquaintance named Mimi Cash was falsely implicating him (Rogers) in the crime. The officer took Rogers to the police station, gave him a Miranda warning, and obtained a written statement from him. Mr. Rogers said at this point that he had been in the vicinity of the robbery because he was visiting his girlfriend, who lived nearby. She asked him to get her some cigarettes, the statement continued, and while driving to the store on this errand he was hailed by two men whom he identified as “Andre” and “Ricky.” He stopped, and the men jumped in his car and asked him to drive them away because they had just robbed a restaurant with Mimi Cash and had shot a woman. That was the substance of the first statement. After Mr. Rogers had left the pohce station, Mimi Cash, Ricardo Forney and Andre Robinson were arrested on unrelated charges. Andre Robinson confessed to the robbery and shooting, and implicated Messrs. Rogers and Forney as well. The police then picked up Mr. Rogers and took him back to the police station for questioning. Told that Robinson had implicated him, Rogers now confessed to a much more active role in the crime. In his confession, which was tape-recorded, Mr. Rogers said that he and Robinson and Forney had engaged in several discussions about robbing Canova’s Restaurant. On a prior day they had driven past the restaurant with the intent to rob it, but had refrained from doing so because the restaurant was crowded. On the day the robbery was actually committed, the three men drove to the restaurant after obtaining a gun that belonged to Robinson’s mother. Mr. Rogers, who was at the wheel of the car, parked on a side street around the corner from the restaurant. He then told his companions “I ain’t going in the joint to rob no joint.” Robinson and Forney entered the restaurant without Mr. Rogers. While they were gone, Rogers got out of his car and walked to a nearby “smokehouse” to obtain illegal drugs. He found that the house was closed. Returning to the car, he found that Robinson and Forney were hunched down in the back seat. They told Rogers to drive away, saying “Rick just shot a lady.” Rogers then drove the men to several places in the city. Robinson gave a confession that largely paralleled Rogers’ insofar as the latter’s role in the robbery was concerned. The only significant differences between the confessions were that (1) Robinson attributed the initial idea of the robbery to Rogers, while Rogers attributed it to Robinson and Forney, and (2) Robinson said Rogers was waiting in the car with the motor running when Robinson and Forney returned from the restaurant. Rogers and Robinson were scheduled to be tried together before a judge of the Court of Common Pleas of Summit County, Ohio. The defendants moved for separate trials, each arguing that his constitutional right of confrontation would be violated if the other’s confession were introduced after a refusal to testify. See Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) (regardless of limiting instruction to jury, out-of-court confession of nontestifying co-defendant may not be introduced in jury trial in federal court, where confession implicates defendant). The common pleas court declined to grant Rogers and Robinson separate trials, reasoning that Bruton was not applicable to bench trials and that Bruton does not apply where co-defendants have given consistent statements. The court expressed confidence in its ability to keep Robinson’s and Rogers’ statements separate. When the confession that had been given by Robinson was introduced at trial as evidence of his guilt, petitioner Rogers moved for a mistrial. The court overruled the motion. At the conclusion of the evidence, the court rendered a general verdict finding both defendants guilty of aggravated robbery. Robinson was found guilty of aggravated murder as well, and Petitioner Rogers was found guilty of the lesser included offense of involuntary manslaughter. The present habeas corpus proceeding was initiated by Rogers after the exhaustion of his state court remedies. II In Bruton v. United States, 391 U.S. 123, 124-25, 88 S.Ct. 1620, 1621-22, 20 L.Ed.2d 476 (1968), the Supreme Court revisited the question whether, notwithstanding limiting instructions by the trial court, the conviction of a defendant at a joint trial before a jury in a federal court should be set aside where a nontestifying co-defendant’s confession inculpating the defendant had been received in evidence. The Court had answered that question in the negative in the earlier case of Delli Paoli v. United States, 352 U.S. 232, 77 S.Ct. 294, 1 L.Ed.2d 278 (1957). The Delli Paoli Court concluded “that it is ‘reasonably possible for the jury to follow’ sufficiently clear instructions to disregard the confessor’s extrajudicial statement that his co-defendant participated with him in committing the crime.” Bruton, 391 U.S. at 126, 88 S.Ct. at 1622 (quoting Delli Paoli, 352 U.S. at 239, 77 S.Ct. at 298). The Bruton Court recognized that “[i]f it were true that the jury disregarded the reference to the co-defendant, no question would arise under the Confrontation Clause, because by hypothesis the case is treated as if the confessor made no statement inculpating the noncon-fessor.” Id. The Bruton decision rested on the belief that regardless of what instructions they received, jurors could not be counted on to blot a co-defendant’s confession out of their minds when considering the guilt or innocence of the fellow defendant. Believing that Delli Paoli’s basic premise had been repudiated in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), the Bruton Court decided 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.” Bruton, 391 U.S. at 137, 88 S.Ct. at 1628. The court explained that “there are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored. Such a context is presented here, where the powerfully incriminating extrajudicial statements of a co-defendant, who stands accused side-by-side with the defendant, are deliberately spread before the jury in a joint trial. Not only are the incriminations devastating to the defendant but their credibility is inevitably suspect, a fact recognized when accomplices do take the stand and the jury is instructed to weigh their testimony carefully given the recognized motivation to shift blame onto others. The unreliability of such evidence is intolerably compounded when the alleged accomplice, as here, does not testify and cannot be tested by cross-examination.” Id. at 135-36, 88 S.Ct. at 1627-28 (citations and footnote omitted). In light of Bruton's emphasis on the limitations of the jury system, it is not surprising that at least three courts of appeals subsequently held Bruton to be inapplicable to bench trials. United States ex rel. Faulisi v. Pinkney, 611 F.2d 176, 178 (7th Cir.1979) (the Bruton “holding is simply inapplicable in the case of a bench trial”); United States v. Castro, 413 F.2d 891, 894-95 & n. 7 (1st Cir.1969) (“A jury may have difficulty in disregarding extrajudicial statements implicating a defendant. We will not presume that a judge suffers from the same disability. Indeed, the presumption is to the contrary.”) cert. denied, 397 U.S. 950, 90 S.Ct. 974, 25 L.Ed.2d 132 (1970); Cockrell v. Oberhauser, 413 F.2d 256, 258 (9th Cir.1969) (same). In the present situation, the state court trial judge clearly recognized his obligation to compartmentalize the confessions in his mind. He quoted a portion of Cockrell that describes the “core” of Bruton as being “that the admission of that evidence against the confessing defendant is tantamount to its admission against his co-defendant because the jury will ignore the limitation in deciding the issue of the non-confessing defendant's guilt or inno-cence_ Nothing in Bruton suggests that a judge is incapable of applying the law of limited admissibility which he has himself announced.” 413 F.2d at 258. The state trial judge also relied on the “interlocking confessions” exception to Bruton. Our consideration of this exception confirms our view that the judge did not intend to use Robinson’s confession as evidence of Rogers’ guilt. The interlocking confessions exception originated in the Second Circuit shortly after Bruton was decided. See United States ex rel. Catanzaro v. Mancusi, 404 F.2d 296 (2d Cir.1968), cert. denied, 397 U.S. 942, 90 S.Ct. 956, 25 L.Ed.2d 123 (1970). The exception was explained thus in United States ex rel. Stanbridge v. Zelker, 514 F.2d 45, 48-49 (2d Cir.), cert. denied, 423 U.S. 872, 96 S.Ct. 138, 46 L.Ed.2d 102 (1975): “The scope of the Bruton decision has been considered by our court on a number of occasions, and we have concluded that error of constitutional dimensions does not inevitably occur if the questioned confession is admitted under proper instructions from the court concerning its limited use and purpose. The likelihood of error must be measured against prejudicial consequences of the failure of the jury to follow the court’s instructions, i.e., the ‘devastating’ effect of the incriminations contained in the codefend-ant’s admissions. Where the confession adds nothing to what is otherwise clearly and properly in the case, it can have little ‘devastating’ effect. % * * * * * This ‘interlocking confession’ doctrine does not require absolute identity of statements. It is sufficient if the two confessions are substantially the same and consistent on the major elements of the crime involved.” ■ (Citations omitted.) The Supreme Court considered the effect of interlocking confessions in Parker v. Randolph, 442 U.S. 62, 99 S.Ct. 2132, 60 L.Ed.2d 713 (1979). Four justices were prepared to “hold that admission of interlocking confessions with proper limiting instructions conforms to the requirements of the Sixth and Fourteenth Amendments to the United States Constitution.” Id. at 75, 99 S.Ct. at 2140 (footnote omitted). The plurality distinguished Bruton in these terms: “When, as in Bruton, the confessing co-defendant has chosen not to take the stand and the implicated defendant has made no extrajudicial admission of guilt, limiting instructions cannot be accepted as adequate to safeguard the defendant’s rights under the Confrontation Clause. Under such circumstances, the ‘practical and human limitations of the jury system’ override the theoretically sound premise that a jury will follow the trial court’s instructions. But when the defendant’s own confession is properly before the jury, we believe that the constitutional scales tip the other way. The possible prejudice resulting from the failure of the jury to follow the trial court’s instructions is not so ‘devastating’ or ‘vital’ to the confessing defendant to require departure from the general rule allowing admission of evidence with limiting instructions.” 442 U.S. at 74, 99 S.Ct. at 2140 (citations and footnote omitted). The Supreme Court repudiated the “interlocking confessions” exception in Cruz v. New York, 481 U.S. 186, 107 S.Ct. 1714, 95 L.Ed.2d 162 (1987), a ease decided after petitioner Roger’s trial had been concluded. An understanding of the exception is necessary, however, because reliance on the exception by the judge before whom Rogers was tried indicates that the judge did not intend to use Robinson’s confession against Rogers. As articulated by the Second Circuit and the Parker plurality, the interlocking confessions exception was not a license for the trier of fact to consider a co-defendant’s confession as evidence of the defendant’s guilt; it simply recognized that where the defendant has himself confessed, the impact of a co-defendant’s interlocking confession will be less, making it more likely that the trier of fact can disregard it when considering the guilt or innocence of the defendant. Attempting to cast doubt on the conclusion that the state trial judge did not consider Robinson’s confession as evidence of Rogers’ guilt, Rogers quotes an ambiguous statement made in the ruling on the motion for separate trials: “I think where we have the situation here where this case is going to be tried to the Court and where both Defendants have made statements and, again, where I have heard both of the statements, I think I’m perfectly capable of weighing the statements of the Defendants separately and putting them together.” Taken out of context, this statement might leave a reviewing court on the horns of a dilemma unless it were prepared to indulge the usual presumption that no improper use was made of the evidence. In context, however, we think the following gloss explains the judge’s true intent: “I think I’m perfectly capable of weighing the statements of the Defendants separately and putting them together [in a single trial].” The next sentence in the judge’s statement tends to confirm this reading: “I think that ability outweighs what we have to go through to hold separate trials.... ” If the phrase “putting them together” does not refer to the defendants themselves (and the intended referent of the pronoun could well have been the defendants, rather than the defendants’ statements), we think the judge simply meant that he was capable of admitting the statements together in one trial and weighing them separately. After making the ambiguous statement, indeed, the court went on to say “I think those considerations [of convenience and judicial economy] outweigh any problem which we may have in separating these out in a bench trial in which both Defendants have made statements. So, I don’t anticipate any problem in doing that.” The judge obviously recognized that it was his duty to separate the statements out, and he was saying that he would be capable of doing that in a bench trial at which both Rogers and Robinson would appear as defendants. We conclude that the admission of the co-defendants’ statements was not error of constitutional dimension, at least under the Sixth Amendment as it had been construed up to the time of Rogers’ conviction. Given the hypothesis that the state trial judge disregarded the reference to Rogers in considering Robinson’s confession, we can say, paraphrasing Bruton, that no question arose under the Confrontation Clause “because by hypothesis the case is treated as if Robinson made no statement inculpating Rogers.” Bruton, 391 U.S. at 126, 88 S.Ct. at 1622. Ill Even if the admission of the confession conformed to the law as it existed at the time, there remains the question whether Rogers’ conviction must be set aside in this collateral proceeding because of subsequent Supreme Court decisions having retroactive effect. The district court answered that question in the affirmative, relying largely on Lee v. Illinois, 476 U.S. 530, 106 S.Ct. 2056, 90 L.Ed.2d 514 (1986) — a case which the district court read as expanding the Bruton doctrine to make it applicable to non-jury trials. With that understanding of Lee, the district court looked for the “particularized guarantees of trustworthiness” required by Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980); finding none, the court concluded that the admission of Robinson’s confession constituted prejudicial error of constitutional dimension. We do not agree that Lee made Bruton applicable to bench trials. In Lee the “trial judge expressly relied on portions of the co-defendant’s confession, obtained by police at the time of arrest, as substantive evidence against petitioner.” 476 U.S. at 531, 106 S.Ct. at 2057. The question for decision was not whether admission of the co-defendant’s confession was constitutional error, but “whether such reliance by the judge upon the codefendant’s confession violated petitioner’s rights_” Id. (Emphasis added.) See Cooper v. Scroggy, 845 F.2d 1385, 1392-93 (6th Cir.1988), where we cited Lee as authority for the proposition that “admission of out-of-court statements by a nontestifying co-defendant as substantive evidence against a defendant" contravenes the Confrontation Clause. (Footnote omitted and emphasis added.) The Supreme Court observed in Lee itself that Lee “is not strictly speaking a Bruton case.” 476 U.S. at 542, 106 S.Ct. at 2063. Bruton, the Court said, was based on the inapplicability of “the ordinarily sound assumption that a jury will be able to follow faithfully its instructions.” Id. The Lee Court did not expand Bruton but distinguished it, saying “[w]e are not here concerned with the effectiveness of limiting instructions.” Id. To apply Bruton to bench trials would be to conclude that judges, like jurors, may well be incapable of separating evidence properly admitted against one defendant from evidence admitted against another. There is no discussion in Lee of whether judges must be presumed to suffer from this incapacity. The Lee Court did not even consider whether the co-defendant’s confession was so “devastating” as to prevent its proper use. And although Lee, like Parker v. Randolph, supra, 442 U.S. 62, 99 S.Ct. 2132, was a case of interlocking confessions, the Lee Court focused not on whether their interlocking nature made them “devastating,” but on whether their interlocking nature made them reliable. Lee, 476 U.S. at 544-546, 106 S.Ct. at 2063-65; cf. Cruz, 481 U.S. at 191-93, 107 S.Ct. at 1717-19. The Lee Court focused on reliability because the trial court’s use of the co-defendant’s confession against Lee was clear. The question was not whether the judge had been able to blot the evidence out of his mind, but whether the cross-use of the confessions was permissible. The answer to this question clearly was “no” unless it could be shown that the confession had sufficient “indicia of reliability.” See Ohio v. Roberts, 448 U.S. at 66, 100 S.Ct. at 2539. No such special showing was necessary in the present situation, because Lee simply did not make Bruton applicable to bench trials. The question whether Lee ought to be applied retroactively is not before us. IY Even if the state trial judge did consider Robinson’s confession in assessing Rogers’ guilt, we believe any such error was harmless beyond a reasonable doubt. See Cruz, 481 U.S. at 194, 107 S.Ct. at 17; Lee, 476 U.S. at 547, 106 S.Ct. at 20; Harrington v. California, 395 U.S. 250, 251, 254, 89 S.Ct. 1726, 1727, 1728, 23 L.Ed.2d 284 (1969). Mr. Rogers’ own confession showed that (1) he discussed the robbery with his friends; (2) he drove them to the restaurant, knowing that they were armed and that they intended “to eat and rob”; (3) he remained parked around the corner of the restaurant until his friends returned; and (4) he then drove the men away. The self-portrait Rogers paints is hardly that of an unwilling accomplice. Somewhat reluctant, perhaps, but by no means coerced. Under Ohio law, a person who aids or abets another in committing an offense is guilty of the substantive offense as if he were a principal offender. Ohio Rev.Code § 2923.03(A)(2) & (F). In State v. Lockett the Supreme Court of Ohio said “[i]t is well established in Ohio that ‘ * * * one may be presumed to intend results which are the natural, reasonable, and probable consequences of his voluntary act * * * ’ ” 49 Ohio St.2d 48, 358 N.E.2d 1062, 1070-71 (1976) (quoting State v. Farmer, 156 Ohio St. 214, 222, 102 N.E.2d 11 (1951)). It is also true, under Ohio law, that “[i]f a conspired robbery, and the manner of its accomplishment, would be reasonably likely to produce death, each person engaged in the common design to commit the robbery is guilty with the principal killer as an aider and abettor in the homicide although not actually present at the time of the homicide, and a purposeful intent to kill by the aider and abettor may be found to exist beyond a reasonable doubt under such circumstances.” Id. 358 N.E.2d at 1065. A person who “cause[s] the death of another as a proximate result of the offender’s committing or attempting to commit a felony” is guilty of involuntary manslaughter. Ohio Rev.Code § 2903.04. We think the evidence shows beyond a reasonable doubt that Rogers, despite his professed misgivings, entered into a common design with Robinson and Forney to rob Canova’s restaurant. We fully agree with the magistrate who, in recommending that Rogers’ petition be dismissed, said “[f]rom his own mouth, the petitioner acknowledged a degree of knowing involvement that makes him culpable vicariously.” V The judgment of the district court is REVERSED, and the case is REMANDED to the district court with instructions to vacate the writ of habeas corpus. . "The presumption is that the improper testimonial evidence, taken under objection, was given no weight by the trial judge and the Court considered only properly admitted and relevant evidence in rendering its decision.” United States v. McCarthy, 470 F.2d 222, 224 (6th Cir.1972) (citations omitted). Question: Did the court conclude that a confession or an incriminating statement was improperly admitted? Consider only incriminating statements made by the defendant. A. No B. Yes C. Yes, but error was harmless D. Mixed answer E. Issue not discussed Answer:
songer_direct1	A	What follows is an opinion from a United States Court of Appeals. Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for government tax claim; for person claiming patent or copyright infringement; for the plaintiff alleging the injury; for economic underdog if one party is clearly an underdog in comparison to the other, neither party is clearly an economic underdog; in cases pitting an individual against a business, the individual is presumed to be the economic underdog unless there is a clear indication in the opinion to the contrary; for debtor or bankrupt; for government or private party raising claim of violation of antitrust laws, or party opposing merger; for the economic underdog in private conflict over securities; for individual claiming a benefit from government; for government in disputes over government contracts and government seizure of property; for government regulation in government regulation of business; for greater protection of the environment or greater consumer protection (even if anti-government); for the injured party in admiralty - personal injury; for economic underdog in admiralty and miscellaneous economic cases. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards. POWELL et ux. v. WUMKES. No. 10945. Circuit Court of Appeals, Ninth Circuit. June 6, 1945. H. R. Griffin, of San Bernardino, Cal., for appellants. Nichols, Cooper & Hickson, of Pomona, Cal., and C. P. Von Plerzen, of Los Angeles, Cal., for appellee. Before MATHEWS, STEPHENS, and HEALY, Circuit Judges. HEALY, Circuit Judge. On a former appeal, Powell v. Wumkes, 9 Cir., 142 F.2d 4, we affirmed a decision of the bankruptcy court setting aside a referee’s valuation order and recommitting the matter for a further hearing. On the second hearing the referee fixed the value of the debtor’s property at $5,575. The secured creditor (appellee) again sought review, this time before Judge McCormick. On the review the judge set aside the referee’s valuation and recommitted the case once more. The debtor appeals. The judge was of opinion that the referee had erred prejudicially in failing to consider evidence of sales of comparable property, as well as in rejecting evidence of a cash offer for the debtor’s property tendered by a witness for the creditor during the course of the hearing. It was thought that the unfair aspect of the referee’s determination was further manifested by affidavits received and considered on review. We think the referee was right in ■rejecting evidence of cash offers. The purpose of a revaluation proceeding under the first proviso of § 75, sub. s(3) of the Bankruptcy Act, 11 U.S.C.A. § 203, sub. s(3), is not to effect a sale, but to determine the fair value at which the debtor may redeem Under such circumstances an offer to purchase is a meaningless gesture, if for no other reason than that there is no possibility of its being accepted. Cf. Sharp v. United States, 191 U.S. 341, 24 S.Ct. 114, 48 L.Ed. 211. However, there were other grounds upon which the judge might reasonably conclude that the hearing was unfair. For example, the debtor’s chief witness, on whose opinion the referee appears to have relied, fixed the value of the citrus grove in question at a figure in excess of $7,000 but arrived at a “net” value of $5,575 by the process of deducting a portion of the value of the growing crop. This was improper, since the unmatured crop was part of the real estate constituting the creditor’s security. Again, witnesses for the debtor were permitted to enlarge upon or explain their estimates of value by reference to their knowledge of sales of comparable property, whereas witnesses for the creditor were not allowed to do that. In their case the referee adhered to the altogether too narrow theory that such evidence is permissible only if developed on cross examination. Further, affidavits of competent persons, presented on review, fixed the reasonable 'value of the property at figures greatly in excess of that determined by the referee. For the reasons given we are not disposed to disturb the judge’s order. Affirmed. Tile property is a citrus grove. This witness was by profession an inheritance tax appraiser. Question: What is the ideological directionality of the court of appeals decision? A. conservative B. liberal C. mixed D. not ascertained Answer:
songer_district	C	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". In the Matter of GULFCO INVESTMENT CORPORATION, and its wholly owned subsidiary, Family Loan, Inc., of Springfield, Missouri, et al., Debtors. P.M.G. CORPORATION, Appellant, v. Dan HOGAN, Trustee, Appellee. No. 74-1727. United States Court of Appeals, Tenth Circuit. Submitted July 9, 1975. Decided Aug. 13, 1975. Collier H. Pate, Eagleton, Nicholson & Pate, Oklahoma City, Okl., for appellant, P.M.G. Corp. James P. Linn, Linn, Helms & Kirk, Oklahoma City, Okl. (James A. Kirk, Linn, Helms & Kirk, Oklahoma City, Okl., on the brief), for appellee, Dan Hogan. Before HILL, McWILLIAMS and DOYLE, Circuit Judges. WILLIAM E. DOYLE, Circuit Judge. A question crucial to this appeal is whether in a Chapter X bankruptcy proceeding the district court has summary jurisdiction to restrain a creditor of the debtor from rescinding the contract which it entered into with the debtor prior to the Chapter X proceedings. Intertek Financial Corp. is one of the debtor corporations. It had entered into a contract with P.M.G. Corporation on May 10, 1973 under the terms of which Intertek agreed to purchase 8,383 acres of land in Arkansas. Title was to remain in the seller, and the purchaser, Intertek, was given the right to construct roads and to secure a warranty deed to portions of the property upon meeting conditions of installment payments prior to the payment of the full purchase price. The seller was given the right to rescind should there be a default continuing for 30 days following written demand for payment. Intertek made payments totaling $349,110.77 of a total purchase price amounting to $1,249,425.00. These were payments prior to April 1, 1974, the date of the filing and approval of the petition for Intertek’s reorganization under Chapter X of the Bankruptcy Act (11 U.S.C. § 501 et seq.). On June 26, 1974, the trustee filed an application seeking authority to assume the contract. But on June 28, 1974, the trustee filed another motion seeking to postpone the hearing on the application to assume the contract so that the deputy trustee would have time to evaluate the contract. Thereupon the court entered an order postponing the hearing on July 1, 1974. On July 1, 1974, P.M.G. demanded payment that was due on that date. Following that, P.M.G. on August 1, 1974, gave notice of rescission of the contract for non-payment of the July 1 installment. The trustee thereupon filed an application for a restraining order enjoining rescission of the contract. A hearing was held on September 27, 1974, following which the district court, on October 2, 1974, issued an order restraining P.M.G. from rescinding the contract. The court said that the trustee was allowed a reasonable time to decide whether to accept or reject the executory contract. It was this order that P.M.G. appealed, claiming the lack of summary jurisdiction to restrain the issuance of the contract. The main contention of P.M.G. is that § 111 of the Bankruptcy Act (11 U.S.C. § 511) gives the court limited summary jurisdiction over property. Its jurisdiction, according to the argument, is limited to property of the debtor. The argument continues that this property is not in the debtor’s possession. In fact, it is not in the possession of anyone. This argument loses sight of § 116(1) of the Act, 11 U.S.C. § 516, which states that the reorganization court has the authority to allow rejection of executory contracts of the debtor. This is recognized by the cases. See In re American National Trust, 426 F.2d 1059 (7th Cir. 1970); Workman v. Harrison, 282 F.2d 693 (10th Cir. 1960); Consolidated Gas Electric Light & Power Co. v. United Railways & Electric Co., 85 F.2d 799 (4th Cir. 1936), cert. denied, 300 U.S. 663, 57 S.Ct. 493, 81 L.Ed. 871 (1937). It is implicit in the power to reject executory contracts to allow the exercise of power to adopt executory contracts. See Texas Importing Co. v. Banco Popular de Puerto Rico, 360 F.2d 582 (5th Cir. 1966) and Consolidated Gas Electric Light & Power Co. v. United Railways & Electric Co., supra. The cases also recognize that the trustee has reasonable time to decide whether to adopt or reject an executory contract. This principle is expounded by Professor Collier as follows: Theoretically, the power to assume or reject an executory contract exists until confirmation of the reorganization plan. But from the standpoint of the other party to the contract, the settled rule — borrowed from equity receivership practice — is that the trustee or debtor in possession has a reasonable time within which to decide whether adoption or rejection is the better course to recommend to the court. Such right is paramount to the other party’s right to assert an anticipatory breach because of bankruptcy, or the right to claim a forfeiture, as in a lease, because of non-performance by the trustee or debtor in possession. 6 J. Moore & L. King, Collier on Bankruptcy § 3.23 (1965). The cases also recognize this rule. See Philadelphia Co. v. Dipple, 312 U.S. 168, 61 S.Ct. 538, 85 L.Ed. 651 (1941); In re Maryvale Community Hospital, Inc., 456 F.2d 414 (9th Cir.), cert. denied, 409 U.S. 879, 93 S.Ct. 133, 34 L.Ed.2d 133 (1972); In re American National Trust, supra; In re Chicago Rapid Transit Co., 129 F.2d 1 (7th Cir.), cert. denied, 317 U.S. 683, 63 S.Ct. 205, 87 L.Ed. 547 (1942); In re United Cigar Stores of America, 89 F.2d 3 (2d Cir. 1937). If reasonable time can be granted, a necessary corollary is that the court has the power to preserve the status quo while the trustee is utilizing the reasonable period of time to make up his mind. In re United Cigar Stores of America, supra, at 6. The court there stated that the trustee is entitled to a reasonable opportunity to determine whether to adopt or reject executory contracts. The court went on to say that it may be assumed that he could restrain the other party from disposing of the subject matter or acting in a manner which would impair the trustee’s option. At bar the trustee could not be expected to decide the matter overnight because of its complexity. He had to evaluate the future resources of the bankrupt company and the potential of the land. Therefore, the district court did not commit error in extending to the trustee additional time to analyze the problem. P.M.G. relies on Schokbeton Industries, Inc. v. Schokbeton Products Corp., 466 F.2d 171 (5th Cir. 1972) and In re American National Trust, 426 F.2d 1059 (7th Cir. 1970). In Schokbeton the court did not reach the issue that we are considering, that is, whether the court had jurisdiction to restrain a rescission. The debtor had an exclusive franchise to sell precast concrete from Schokbeton Products Corp. The court held that a contract termination is not automatically tolled by the filing of reorganization. Since it did not take up the question of restraint for a reasonable period of time, we do not consider it in point. Similarly, in In re American National Trust the concern was with a different question. The court ordered the purchasers to reconvey the property and return the deposit. The court said that this relief was appropriate for a court only in a plenary action. However, National Trust is wholly consistent with the position of the trustee here in contending that P.M.G. cannot terminate the contract in the face of the debtors having spent substantial amounts and in view of the fact that the value of the land is apparently rising. All of this militates against uninhibited rescission by P.M.G. The equities of the debtor are substantial and call for granting time to determine whether it wishes to adopt the contract. The countervailing equities of P.M.G. are not impaired because if the trustee decides to adopt the contract, it will have to make the payments that it has missed with interest. Should the trustee decide to reject the contract, P.M.G. would have a meritorious complaint against the estate for damages. In summary, then, the district court was correct in its holding that the contract between P.M.G. and Intertek was to remain in force for a reasonable time to permit the trustee to determine whether to adopt or reject it. The above described order of the district court is therefore affirmed. . The pertinent language of § 116 is as follows: Upon the approval of a petition, the judge may, in addition to the jurisdiction, powers, and duties in this chapter conferred and imposed upon him and the court— (1) permit the rejection of executory contracts of the debtor, except contracts in the public authority, upon notice to the parties to such contracts and to such other parties in interest as the judge may designate. 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:
sc_lcdisposition	B	What follows is an opinion from the Supreme Court of the United States. Your task is to determine the treatment the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed, that is, whether the court below the Supreme Court (typically a federal court of appeals or a state supreme court) affirmed, reversed, remanded, denied or dismissed the decision of the court it reviewed (typically a trial court). Adhere to the language used in the "holding" in the summary of the case on the title page or prior to Part I of the Court's opinion. Exceptions to the literal language are the following: where the Court overrules the lower court, treat this a petition or motion granted; where the court whose decision the Supreme Court is reviewing refuses to enforce or enjoins the decision of the court, tribunal, or agency which it reviewed, treat this as reversed; where the court whose decision the Supreme Court is reviewing enforces the decision of the court, tribunal, or agency which it reviewed, treat this as affirmed; where the court whose decision the Supreme Court is reviewing sets aside the decision of the court, tribunal, or agency which it reviewed, treat this as vacated; if the decision is set aside and remanded, treat it as vacated and remanded. MASCIALE v. UNITED STATES. No. 84. Argued January 16, 1958. Decided May 19, 1958. Merrell E. Clark, Jr. argued the cause and filed a brief for petitioner. James W. Knapp argued the cause for the United States. On the brief were Solicitor General Rankin, Warren Olney, III, then Assistant Attorney General, Beatrice Rosenberg and Robert G. Maysack. Mr. Chief Justice Warren delivered the opinion of the Court. This case presents the same issue as Sherman v. United States, ante, p. 369, decided this day: Should petitioner’s conviction be set aside on the ground that as a matter of law the defense of entrapment was established? Cf. Sorrells v. United States, 287 U. S. 435. Petitioner was convicted on three counts, two of which charged him with the illegal sale of narcotics and one with conspiracy to make a sale. The issue of entrapment went to the jury, and conviction followed. The Court of Appeals for the Second Circuit affirmed. 236 F. 2d 601. We granted "certiorari. 352 U. S. 1000. The evidence discloses the following events. On January 14, 1954, petitioner was introduced to government agent Marshall by a government informer, Kowel. Although petitioner had known Kowel for approximately four years, he was unaware of Kowel’s undercover activities. Marshall was introduced as a big narcotics buyer. Both Marshall and petitioner testified concerning the ensuing conversation. Marshall testified that he immediately made it clear that he wanted to talk about buying large quantities of high-grade narcotics and that if petitioner were not interested, the conversation would end at once. Instead of leaving, petitioner questioned Marshall on his knowledge of the narcotics traffic and then boasted that while he was primarily a gambler, “he knew someone whom he considered high up in the narcotics traffic to whom he would introduce me [Marshall] and that I was able to get — and I can quote this — ‘88 per cent pure heroin’ from this source.” Marshall also stated that petitioner gave him a telephone number where he could be reached. In his testimony petitioner admitted that he was a gambler and had told Marshall that through his gambling contacts he knew about the narcotics traffic. He denied that he had then known any available source of narcotics or that he said he could obtain narcotics for Marshall at that time. Petitioner explained that he met Marshall only to help Kowel impress Marshall. Petitioner also said that it was Marshall who gave him the telephone number. It is noteworthy that nowhere in his testimony did petitioner state that during the conversation either Marshall or Kowel tried to persuade him to enter the narcotics traffic. In the six weeks following the conversation just related Marshall and petitioner met or spoke with each other at least ten times; petitioner kept telling Marshall that he was trying to make his contact but was having trouble doing so. Finally, on March 1, 1954, petitioner introduced Marshall to Seifert, who sold some heroin to Marshall on the next day. Petitioner even loaned his sister’s car to Seifert in order to get the narcotics. It was this sale for which petitioner was convicted. In this case entrapment could have occurred in only one of two ways. Either Marshall induced petitioner, or Kowel did. As for Marshall, petitioner has conceded here that the jury could have found that when petitioner met Marshall he was ready and willing to search out a source of narcotics and to bring about a sale. As for Kowel, petitioner testified that the informer engaged in a campaign to persuade him to sell narcotics by using the lure of easy income. Petitioner argues that this undisputed testimony explained why he was willing to deal with Marshall and so established entrapment as a matter of law. However, his testimony alone could not have this effect. While petitioner presented enough evidence for the jury to consider, they were entitled to disbelieve him in regard to Kowel and so find for the Government on the issue of guilt. Therefore, the trial court properly submitted the case to the jury. The judgment of the Court of Appeals is Affirmed. See 26 U. S. C. §§2553 (a), 2554 (a); 21 U. S. C. § 174, and 18 U. S. G. § 2. The charge to the jury was not in issue here. Well might petitioner concede this, for despite petitioner’s version of the meeting and his explanation for being there, the jury could have believed Marshall and have inferred from his narration that petitioner needed no persuasion to seek a narcotics buyer. We conclude from the argument that neither party even attempted to subpoena Kowel. For the reasons stated in Sherman v. United States, ante, p. 369, we decline to consider the contention that this case should be reversed and remanded to the District Court for a determination of the issue of entrapment by the trial judge. This issue was never raised by the parties. The question of entrapment was submitted to the jury, and the charge to the jury was not put in issue by petitioner either here or in the Court of Appeals. Question: What treatment did the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed? A. stay, petition, or motion granted B. affirmed C. reversed D. reversed and remanded E. vacated and remanded F. affirmed and reversed (or vacated) in part G. affirmed and reversed (or vacated) in part and remanded H. vacated I. petition denied or appeal dismissed J. modify K. remand L. unusual disposition Answer:
songer_appfed	0	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons. If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name. Your specific task is to determine the total number of appellants in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99. UNITED STATES of America, Appellee, v. Alan Martin POMS, Appellant. No. 72-1965. United States Court of Appeals, Fourth Circuit. Submitted July 27, 1973. Decided Sept. 26, 1973. Blair D. Howard, Alexandria, Va., on brief for appellant. Brian P. Gettings, U. S. Atty., and K. Gregory Haynes, Asst. U. S. Atty., on brief for appellee. Before BOREMAN, Senior Circuit Judge, and WINTER and CRAVEN, Circuit Judges. PER CURIAM: Alan Martin Poms was arrested on March 29, 1972, and was later indicted on two counts. Count I charged possession of cocaine with intent to distribute, 21 U.S.C. § 841(a)(1); Count II charged possession of a firearm by a convicted felon, 18 U.S.C., Appendix, § 1202(a)(1). Poms filed a Motion to Suppress evidence seized from him at the time of his arrest and a Motion for a Bill of Particulars demanding disclosure of the identity of an informant. Both motions were denied after a hearing. The case was tried without a jury. On Count I Poms was found guilty of the lesser included offense of simple possession of cocaine, 21 U.S.C. § 844(a), and was sentenced to imprisonment for a term of one year. He was found not guilty of Count II. He appeals, assigning as error the denial of his Motions to Suppress and for a Bill of Particulars. Federal authorities had received information from a confidential informant regarding Poms and one Gabriel D. Bob-row on several occasions in the two weeks preceding the date of Poms’ arrest. The informant stated that Bobrow was heavily engaged in narcotics trafficking. The source reported also that Poms was associatéd with Bobrow in the latter’s criminal activities and was presently and had been for several months living in Bobrow’s apartment. The informant further revealed that Poms habitually carried a brown leather shoulder bag which always contained an automatic pistol. On the basis of the information supplied by the informant a search warrant was secured for Bobrow’s apartment on March 29, 1972. Approximately eight to twelve federal agents went to the building to participate in the search and, upon arriving, they encountered and arrested Bobrow and his son in an elevator. The two Bobrows and the agents proceeded to the basement in the elevator. As the arrestees were being searched and given their Miranda warnings in the basement hallway, an adjacent elevator door opened and Poms emerged carrying a brown leather shoulder bag. An agent of the Alcohol, Tobacco and Firearms Division of the Treasury Department testified that he saw Poms as the elevator door opened, observed the shoulder bag, and noted that Poms had one hand on the zipper of the bag which was one-third open. The agent asked appellant if his name was Alan Martin Poms and upon receiving an affirmative reply took possession of the shoulder bag. When the bag was completely opened a loaded .38 caliber automatic pistol and a clear plastic bag of white crystal cocaine were observed therein. Poms was then arrested. First, Poms claims that the cocaine should not have been admitted into evidence against him. He argues that the express purpose of the agents was to execute the search warrant for the apartment of Bobrow and that the agents’ encounter with him was mere happenstance. Citing Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), and Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), the defense contends that the informant’s unverified tip was insufficient to provide probable cause for an arrest of Poms or a valid search of his shoulder bag. This court need not decide whether the information provided by the informant would have been sufficient by itself to have supported an arrest or search of Poms. We are persuaded that on the facts in the record, the search of Poms’ shoulder bag may be justified by the guidelines for protective searches established by Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Since no arrest was effected until after the contraband was found in the shoulder bag, the validity of the arrest is dependent on the validity of the initial search and not vice versa. To justify a protective search there must be compliance with the standards established in Terry. “Our evaluation of the proper balance that has to be struck in this type of case leads us to conclude that there must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” Terry v. Ohio, 392 U.S. at 27, 88 S.Ct. at 1883. Applying the teaching of Terry to the facts and circumstances here present we conclude that the protective search was justified and the federal agent’s search of the shoulder bag for weapons was reasonable. Here, the officers had received information from a reliable informant that Poms always carried a weapon in his shoulder bag. The source had provided an accurate description of the bag’s appearance and color. Poms was known to be an associate of Bobrow and they were sharing an apartment according to the information furnished the agents. Additionally, the officers asked Poms to identify himself before they took any further action. It is quite reasonable to assume, and there is no contrary evidence in the record, that the agent who searched the bag was of the opinion that such a prophylactic measure was necessary to avert the possibility that Poms would draw a weapon in an attempt to free Bobrow from police custody. A similar situation was present in United States v. Del Toro, 464 F.2d 520 (2 Cir. 1972). There the police had an arrest warrant for one Rivera, a known narcotics dealer. Eight agents kept Rivera and Del Toro, who was unknown to the police, under surveillance as they left a bar. The agents closed in with drawn revolvers and ordered the two men out of Del Toro’s car. A search of Del Toro for weapons was held to be justified even though, as here, he was not uncooperative and the police were present in force. As stated in Del Toro, it would be “unreasonable to expect them [government agents] to expose themselves to a violent escape attempt, however futile, when the limited intrusion of a pat-down would promptly defuse what officers experienced in narcotics enforcement perceived as a potentially explosive situation.” 464 F.2d at 521 (footnote omitted). We cannot distinguish the cases on the basis that Del Toro had been Rivera’s companion throughout the period of surveillance whereas Poms’ presence at the arrest of Bobrow may have been fortuitous. The police had ample cause to take protective measures because they had been warned by a reliable source that Poms was Bobrow’s associate in crime, was then residing with Bobrow, and that he always carried a weapon in his shoulder bag. Poms was potentially as dangerous to the arresting officers when he stepped off the elevator as he would have been had he been with Bob-row when the latter was initially arrested. Since we agree that “[a] 11 companions of the arrestee within the immediate vicinity, capable of accomplishing a harmful assault on the officer, are constitutionally subjected to the cursory ‘pat-down’ reasonably necessary to give assurance that they are unarmed,” United States v. Berryhill, 445 F.2d 1189, 1193 (9 Cir. 1971), we see no reason why officers may not similarly engage in a limited search for weapons of a known companion of an arrestee, especially one reported to be armed at all times, who walks in on the original arrest by sheer happenstance. Having concluded that this limited protective search was justified under the circumstances, we can proceed to determine whether the cocaine, observed in connection with the search for the weapon, could properly be seized and used as evidence against Poms. It is evident that the “plain view” doctrine is applicable in this situation. If a valid search is in progress and the seizure of an item in plain view does not convert the search into a general or exploratory one, i. e., the discovery of the evidence was inadvertent, then the “plain view” doctrine applies. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). Here the protective search was valid and, although the record is not as clear as it might be, it does appear that the discovery of the cocaine was inadvertent. The government agent who conducted the search testified as follows.: “I then grabbed the bag and asked Mr. Poms for the bag, which he assisted. I removed it from his shoulder and I then placed the bag on the floor, opened the bag the rest of the way, and I observed a Walther PPK/S .38 caliber automatic in the purse. “I further observed a clear plastic bag which contained a white crystal. This packet was tied.” There is no evidence that the agent engaged in a general or exploratory search. A reasonable interpretation of the testimony would suggest that the officer opened the bag and saw the pistol and clear plastic bag simultaneously. While engaged in a valid protective search, an agent inadvertently observed the cocaine. The “plain view” doctrine applies, and that contraband evidence could properly be seized and used as evidence against Poms at trial. We therefore affirm the District Court’s denial of the Motion to Suppress. The second ground for appeal is the claim that the lower court erred in permitting the Government to withhold the identity of the informant. We hold that the district court did not err in refusing to require disclosure. This court has previously recognized that the Government is permitted to withhold the identity of informants when “the informant was used only for the limited purpose of obtaining a search warrant.” United States v. Fisher, 440 F.2d 654, 656 (4 Cir. 1971); United States v. Pitt, 382 F.2d 322 (4 Cir. 1967) ; United States v. Whiting, 311 F.2d 191 (4 Cir. 1962), cert, denied, 372 U.S. 935, 83 S.Ct. 882, 9 L.Ed.2d 766 (1963). Here, since the information provided by the informer was utilized only for the lesser purpose of a protective search, failure to require disclosure was clearly proper. Poms’ reliance on Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L. Ed.2d 639 (1957), is misplaced. That ease is distinguishable from this one, and the facts relevant there illustrate the importance an informant must play in a case before his identity must be disclosed. In Roviaro, disclosure was required, but the undercover informer had taken a material part in bringing about the defendant’s possession of narcotics, he had been present with the defendant at the occurrence of the crime, and he might have been a material witness as to whether the accused knowingly transported the drugs as charged. No claim is asserted here that the informant played a substantial role in Poms’ criminal conduct. The motion for a Bill of Particulars was properly denied. Accordingly, dispensing with oral argument, we affirm the judgment below. Affirmed. . The arrest of Bobrow and his son was based on the agents’ observation that Bob-row was carrying a large plastic garbage bag filled with marijuana. His conviction of possession of marijuana with intent to distribute, 21 U.S.C. § 841(a)(1), and possession of cocaine, 21 U.S.C. § 844(a), was recently affirmed by this court. United States v. Bobrow, 474 F.2d 1343 (4 Cir. 1973). . Bee United States v. Epperson, 454 F.2d 769 (4 Cir. 1972) ; United States v. Powers, 439 F.2d 373 (4 Cir. 1971). . The general reliability of the informant had been established. He had furnished reliable information at least four times in the past to three different government law enforcement agencies. . In Adams v. Williams, 407 U.S. 143, 92 S. Ct. 1921, 32 L.Ed.2d 612 (1972), a reliable source informed police that Williams had narcotics and a loaded pistol in his car. A police officer approached the automobile and asked the suspect to open his door. When the car window was lowered the officer reached into the car and found a loaded handgun in Williams’ waistband, precisely where the informant said it would be. The handgun had not been visible to the officer standing outside the automobile. The Supreme Court, citing Terry for the proposition that police can make a reasonable investigatory stop and limited protective search, held that the information furnished by the informant had enough indicia of reliability to justify the officers’ forcible stop and protective seizure of the weapon. 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_lcdisagreement	B	What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the court opinion mentions that one or more of the members of the court whose decision the Supreme Court reviewed dissented. Focus on whether there exists any statement to this effect in the opinion, for example "divided," "dissented," "disagreed," "split.". A reference, without more, to the "majority" or "plurality" does not necessarily evidence dissent (the other judges may have concurred). If a case arose on habeas corpus, indicate dissent if either the last federal court or the last state court to review the case contained one. If the highest court with jurisdiction to hear the case declines to do so by a divided vote, indicate dissent. If the lower court denies an en banc petition by a divided vote and the Supreme Court discusses same, indicate dissent. GOLAN et al. v. HOLDER, ATTORNEY GENERAL, et al. No. 10-545. Argued October 5, 2011 Decided January 18, 2012 Anthony T. Falzone argued the cause for petitioners. With him on the briefs were Julie A. Ahrens, Daniel K. Nazer, Hugh Q. Gottschalk, Carolyn J. Fairless, Thomas C. Gold-stein, Amy Howe, Kevin K. Russell, and Pamela S. Karlan. Solicitor General Verrilli argued the cause for respondents. With him on the brief were Assistant Attorney General West, D&puty Solicitor General Stewart, Melissa Arbus Sherry, William Kanter, and John S. Koppel. Briefs of amici curiae urging reversal were filed for the American Civil Liberties Union by Aden J. Fine and Steven R. Shapiro; for the American Library Association et al. by Corynne McSherry, Michael Barclay, Jonathan Band, and Geoffrey Brigham; for the Cato Institute by Nicholas Quinn Rosenkranz and Ilya Shapiro; for the Conductors Guild et al. by Steven A. Hirsch; for Creative Commons Corp. by Lawrence Lessig; for the Eagle Forum Education & Legal Defense Fund by Andrew L. Schlafly; for Google, Inc., by David T. Goldberg and Sean H. Donahue; for Heartland Angels, Inc., by Michael W. Carroll; for the Information Society Project at Yale Law School Professors and Fellows by Priscilla J. Smith; for the Justice and Freedom Fund by James L. Hirsen and Deborah J. Dewart; for Project Petrucci, LLC, by Charles Nesson; for Public Domain Interests by Jennifer M. Urban, Jeffrey P. Cunard, Peter Jaszi, and Pamela Samuelson; and for Public Knowledge by Gigi B. Sohn. Briefs of amici curiae urging affirmance were filed for the American Bar Association by William T. Robinson III, Steven M. Lieberman, and June M. Besek; for the American Intellectual Property Law Association by Edward R. Reines and David W. Hill; for the American Society of Composers, Authors and Publishers et al. by Christopher A. Mohr, Paul Bender, and Michael R. Klipper; for the International Coalition for Copyright Protection by Eric M. Lieberman and David B. Goldstein; for the International Publishers Association et al. by Gloria C. Phares; for the Intellectual Property Owners Association by J. Michael Jakes, Robert D. Litowitz, Margaret A. Esquenet, Mary Beth Walker, Douglas K. Norman, and Kevin H. Rhodes; and for the Motion Picture Association of America by Seth P. Waxman and Randolph D. Moss. Briefs of amici curiae were filed for the Franklin Pierce Center for Intellectual Property by Ann McCrackin; for Peter Decherney by Messrs. Carroll and Jaszi; for Daniel J. Gervais by Alan C. Friedberg; and for H. Tomas Gomez-Arostegui et al. by Tyler T. Ochoa and Mr. Gomez-Arostegui, both pro se. Justice Ginsburg delivered the opinion of the Court. The Berne Convention for the Protection of Literary and Artistic Works (Berne Convention, Convention, or Berne), which took effect in 1886, is the principal accord governing international copyright relations. Latecomer to the international copyright regime launched by Berne, the United States joined the Convention in 1989. To perfect U. S. implementation of Berne, and as part of our response to the Uruguay round of multilateral trade negotiations, Congress, in 1994, gave works enjoying copyright protection abroad the same full term of protection available to U. S. works. Congress did so in § 514 of the Uruguay Round Agreements Act (URAA), which grants copyright protection to preexisting works of Berne member countries, protected in their country of origin, but lacking protection in the United States for any of three reasons: The United States did not protect works from the country of origin at the time of publication; the United States did not protect sound recordings fixed before 1972; or the author had failed to comply with U. S. statutory formalities (formalities Congress no longer requires as prerequisites to copyright protection). The URAA accords no protection to a foreign work after its full copyright term has expired, causing it to fall into the public domain, whether under the laws of the country of origin or of this country. Works encompassed by §514 are granted the protection they would have enjoyed had the United States maintained copyright relations with the author’s country or removed formalities incompatible with Berne. Foreign authors, however, gain no credit for the protection they lacked in years prior to §514’s enactment. They therefore enjoy fewer total years of exclusivity than do their U. S. counterparts. As a consequence of the barriers to U. S. copyright protection prior to the enactment of § 514, foreign works “restored” to protection by the measure had entered the public domain in this country. To cushion the impact of their placement in protected status, Congress included in § 514 ameliorating accommodations for parties who had exploited affected works before the URAA was enacted. Petitioners include orchestra conductors, musicians, publishers, and others who formerly enjoyed free access to works § 514 removed from the public domain. They maintain that the Constitution’s Copyright and Patent Clause, Art. I, § 8, cl. 8, and First Amendment both decree the invalidity of § 514. Under those prescriptions of our highest law, petitioners assert, a work that has entered the public domain, for whatever reason, must forever remain there. In accord with the judgment of the Tenth Circuit, we conclude that § 514 does not transgress constitutional limitations on Congress’ authority. Neither the Copyright and Patent Clause nor the First Amendment, we hold, makes the public domain, in any and all cases, a territory that works may never exit. I A Members of the Berne Union agree to treat authors from other member countries as well as they treat their own. Berne Convention, Sept. 9, 1886, as revised at Stockholm on July 14, 1967, Arts. 1, 5(1), 828 U. N. T. S. 221, 225, 231-233. Nationals of a member country, as well as any author who publishes in one of Berne’s 164 member states, thus enjoy copyright protection in nations across the globe. Arts. 2(6), 3. Each country, moreover, must afford at least the minimum level of protection specified by Berne. The copyright term must span the author’s lifetime, plus at least 50 additional years, whether or not the author has complied with a member state’s legal formalities. Arts. 5(2), 7(1). And, as relevant here, a work must be protected abroad unless its copyright term has expired in either the country where protection is claimed or the country of origin. Art. 18(l)-(2). A different system of transnational copyright protection long prevailed in this country. Until 1891, foreign works were categorically excluded from Copyright Act protection. Throughout most of the,20th century, the only eligible foreign authors were those whose countries granted reciprocal rights to U. S. authors and whose works were printed in the United States. See Act of Mar. 3, 1891, §§ 3, 13, 26 Stat. 1107,1110; Patry, The United States and International Copyright Law, 40 Houston L. Rev. 749, 750 (2003). For domestic and foreign authors alike, protection hinged on compliance with notice, registration, and renewal formalities. The United States became party to Berne’s multilateral, formality-free copyright regime in 1989. Initially, Congress adopted a “minimalist approach” to compliance with the Convention. H. R. Rep. No. 100-609, p. 7 (1988) (hereinafter BCIA House Report). The Berne Convention Implementation Act of 1988 (BCIA), 102 Stat. 2853, made “only those changes to American copyright law that [were] clearly required under the treaty’s provisions,” BCIA House Report, at 7. Despite Berne’s instruction that member countries— including “new accessions to the Union” — protect foreign works under copyright in the country of origin, Art. 18(1) and (4), 828 U. N. T. S., at 251, the BCIA accorded no protection for “any work that is in the public domain in the United States,” § 12, 102 Stat. 2860. Protection of future foreign works, the BCIA indicated, satisfied Article 18. See § 2(3), 102 Stat. 2853 (“The amendments made by this Act, together with the law as it exists on the date of the enactment of this Act, satisfy the obligations of the United States in adhering to the Berne Convention....”). Congress indicated, however, that it had not definitively rejected “retroactive” protection for pre-existing foreign works; instead it had punted on this issue of Berne’s implementation, deferring consideration until “a more thorough examination of Constitutional, commercial, and consumer considerations is possible.” BCIA House Report, at 51, 52. The minimalist approach essayed by the United States did not sit well with other Berne members. While negotiations were ongoing over the North American Free Trade Agreement (NAFTA), Mexican authorities complained about the United States’ refusal to grant protection, in accord with Article 18, to Mexican works that remained under copyright domestically. See Intellectual Property and International Issues, Hearings before the Subcommittee on Intellectual Property and Judicial Administration, House Committee on the Judiciary, 102d Cong., 1st Sess., 168 (1991) (statement of Ralph Oman, U. S. Register of Copyrights). The Register of Copyrights also reported “questions” from Turkey, Egypt, and Austria. Ibid. Thailand and Russia balked at proteet-ing U. S. works, copyrighted here but in those countries’ public domains, until the United States reciprocated with respect to their authors’ works. URAA Joint Hearing 137 (statement of Ira S. Shapiro, General Counsel, Office of the U. S. Trade Representative (USTR)); id., at 208 (statement of Professor Shira Perlmutter); id., at 291 (statement of Jason S. Berman, Recording Industry Association of America (RIAA)). Berne, however, did not provide a potent enforcement mechanism. The Convention contemplates dispute resolution before the International Court of Justice. Art. 33(1). But it specifies no sanctions for noncompliance and allows parties, at any time, to declare themselves “not... bound” by the Convention’s dispute resolution provision. Art. 33(2)-(3), 828 U. N. T. S., at 277. Unsurprisingly, no enforcement actions were launched before 1994. D. Gervais, The TRIPS Agreement 213, and n. 134 (3d ed. 2008). Although “several Berne Union Members disagreed with [our] interpretation of Article 18,” the USTR told Congress, the Berne Convention did “not provide a meaningful dispute resolution process.” URAA Joint Hearing 137 (statement of Shapiro). This shortcoming left Congress “free to adopt a minimalist approach and evade Article 18.” Karp, Pinal Report, Berne Article 18 Study on Retroactive United States Copyright Protection for Berne and other Works, 20 Colum.-VLA J. L. & Arts 157, 172 (1996). The landscape changed in 1994. The Uruguay round of multilateral trade negotiations produced the World Trade Organization (WTO) and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). The United States joined both. TRIPS mandates, on pain of WTO enforcement, implementation of Berne’s first 21 articles. TRIPS, Art. 9.1, 33 I. L. M. 1197, 1201 (requiring adherence to all but the “moral rights” provisions of Article 6bis). The WTO gave teeth to the Convention’s requirements: Noncompliance with a WTO ruling could subject member countries to tariffs or cross-sector retaliation. See Gervais, supra, at 213; 7 W. Patry, Copyright §24:1, pp. 24-8 to 24-9 (2011). The specter of WTO enforcement proceedings bolstered the credibility of our trading partners’ threats to challenge the United States for inadequate compliance with Article 18. See URAA Joint Hearing 137 (statement of Shapiro, USTR) (“It is likely that other WTO members would challenge the current U. S. implementation of Berne Article 18 under [WTO] procedures.”). Congress’ response to the Uruguay agreements put to rest any questions concerning U. S. compliance with Article 18. Section 514 of the URAA, 108 Stat. 4976 (codified at 17 U. S. C. § 104A, 109(a)), extended copyright to works that garnered protection in their countries of origin, but had no right to exclusivity in the United States for any of three reasons: lack of copyright relations between the country of origin and the United States at the time of publication; lack of subject-matter protection for sound recordings fixed before 1972; and failure to comply with U. S. statutory formalities (e.g., failure to provide notice of copyright status, or to register and renew a copyright). See § 104A(h)(6)(B)-(C). Works that have fallen into the public domain after the expiration of a full copyright term — either in the United States or the country of origin — receive no further protection under §514. Ibid, Copyrights “restored” under URAA § 514 “subsist for the remainder of the term of copyright that the work would have otherwise been granted... if the work never entered the public domain.” § 104A(a)(l)(B). Prospectively, restoration places foreign works on an equal footing with their U. S. counterparts; assuming a foreign and domestic author died the same day, their works will enter the public domain simultaneously. See § 302(a) (copyrights generally expire 70 years after the author’s death). Restored works, however, receive no compensatory time for the period of exclusivity they would have enjoyed before §514’s enactment, had they been protected at the outset in the United States. Their total term, therefore, falls short of that available to similarly situated U. S. works. The URAA’s disturbance of the public domain hardly escaped Congress’ attention. Section 514 imposed no liability for any use of foreign works occurring before restoration. In addition, anyone remained free to copy and use restored works for one year following §514⅛ enactment. See 17 U. S. C. § 104A(h)(2)(A). Concerns about § 514⅛ compatibility with the Fifth Amendment’s Takings Clause led Congress to include additional protections for “reliance parties”— those who had, before the URAA’s enactment, used or acquired a foreign work then in the public domain. See § 104A(h)(3)-(4). Reliance parties may continue to exploit a restored work until the owner of the restored copyright gives notice of intent to enforce — either by filing with the U. S. Copyright Office within two years of restoration, or by actually notifying the reliance party. § 104A(c), (d)(2)(A)(i), and (B)(i). After that, reliance parties may continue to exploit existing copies for a grace period of one year. § 104A(d)(2)(A)(ii) and (B)(ii). Finally, anyone who, before the URAA’s enactment, created a “derivative work” based on a restored work may indefinitely exploit the derivation upon payment to the copyright holder of “reasonable compensation,” to be set by a district judge if the parties cannot agree. § 104A(d)(3). B In 2001, petitioners filed this lawsuit challenging §514. They maintain that Congress, when it passed the URAA, exceeded its authority under the Copyright Clause and transgressed First Amendment limitations. The District Court granted the Attorney General’s motion for summary judgment. Golan v. Gonzales, No. Civ. Ol-B-1854, 2005 WL 914754 (D Colo., Apr. 20, 2005). In rejecting petitioners’ Copyright Clause argument, the court stated that Congress “has historically demonstrated little compunction about removing copyrightable materials from the public domain.” Id., at 14. The court next declined to part from “the settled rule that private censorship via copyright enforcement does not implicate First Amendment concerns.” Id., at 17. The Court of Appeals for the Tenth Circuit affirmed in part. Golan v. Gonzales, 501 F. 3d 1179 (2007). The public domain, it agreed, was not a “threshold that Congress” was powerless to “traverse in both directions.” Id., at 1187 (internal quotations marks omitted). But §514, as the Court of Appeals read our decision in Eldred v. Ashcroft, 537 U. S. 186 (2003), required further First Amendment inspection, 501 F. 3d, at 1187. The measure “‘altered the traditional contours of copyright protection,’ ” the court said— specifically, the “bedrock principle” that once works enter the public domain, they do not leave. Ibid, (quoting Eldred, 537 U. S., at 221). The case was remanded with an instruction to the District Court to address the First Amendment claim in light of the Tenth Circuit’s opinion. On remand, the District Court’s starting premise was un-eontested: Section 514 does not regulate speech on the basis of its content; therefore the law would be upheld if “narrowly tailored to serve a significant government interest.” 611 F. Supp. 2d 1165, 1170-1171 (Colo. 2009) (quoting Ward v. Rock Against Racism, 491 U. S. 781, 791 (1989)). Summary judgment was due petitioners, the court concluded, because § 514’s constriction of the public domain was not justified by any of the asserted federal interests: compliance with Berne, securing greater protection for U. S. authors abroad, or remediation of the inequitable treatment suffered by foreign authors whose works lacked protection in the United States. 611 F. Supp. 2d, at 1172-1177. The Tenth Circuit reversed. Deferring to Congress’ predictive judgments in matters relating to foreign affairs, the appellate court held that §514 survived First Amendment scrutiny. Specifically, the court determined that the law was narrowly tailored to fit the important government aim of protecting U. S. copyright holders’ interests abroad. 609 F. 3d 1076 (2010); We granted certiorari to consider petitioners’ challenge to § 514 under both the Copyright Clause and the First Amendment, 562 U. S. 1270 (2011), and now affirm. II We first address petitioners’ argument that Congress lacked authority, under the Copyright Clause, to enact § 514. The Constitution states that “Congress shall have Power... [t]o promote the Progress of Science... by securing for limited Times to Authors... the exclusive Right to their... Writings.” Art. I, §8, cl. 8. Petitioners find in this grant of authority an impenetrable barrier to the extension of copyright protection to authors whose writings, for whatever reason, are in the public domain. We see no such barrier in the text of the Copyright Clause, historical practice, or our precedents. A The text of the Copyright Clause does not exclude application of copyright protection to works in the public domain. Symposium, Congressional Power and Limitations Inherent in the Copyright Clause, 30 Colum. J. L. & Arts 259, 266 (2007). Petitioners’ contrary argument relies primarily on the Constitution’s confinement of a copyright’s lifespan to a “limited Tim[e].” “Removing works from the public domain,” they contend, “violates the ‘limited [t]imes’ restriction by turning a fixed and predictable period into one that can be reset or resurrected at any time, even after it expires.” Brief for Petitioners 22. Our decision in Eldred is largely dispositive of petitioners’ limited-time argument. There we addressed the question whether Congress violated the Copyright Clause when it extended, by 20 years, the terms of existing copyrights. 537 U. S., at 192-193 (upholding Copyright Term Extension Act (CTEA)). Ruling that Congress acted within constitutional bounds, we declined to infer from the text of the Copyright Clause “the command that a time prescription, once set, becomes forever‘fixed’or‘inalterable.’” Id., at 199. “The word ‘limited,’ ” we observed, “does not convey a meaning so constricted.” Ibid. Rather, the term is best understood to mean “confine[d] within certain bounds,” “restrained],” or “circumscribed.” Ibid, (internal quotation marks omitted). The construction petitioners tender closely resembles the definition rejected in Eldred and is similarly infirm. The terms afforded works restored by §514 are no less “limited” than those the CTEA lengthened. In light of El-dred, petitioners do not here contend that the term Congress has granted U. S. authors — their lifetimes, plus 70 years— is unlimited. See 17 U. S. C. § 302(a). Nor do petitioners explain why terms of the same duration, as applied to foreign works, are not equally “circumscribed” and “confined.” See Eldred, 537 U. S., at 199. Indeed, as earlier noted, see supra, at 307, 315, the copyrights of restored foreign works typically last for fewer years than those of their domestic counterparts. The difference, petitioners say, is that the limited time had already passed for works in the public domain. What was that limited term for foreign works once excluded from U. S. copyright protection? Exactly “zero,” petitioners respond. Brief for Petitioners 22 (works in question “received a specific term of protection... sometimes expressly set to zero”; “at the end of that period,” they “entered the public domain”); Tr. of Oral Arg. 52 (by “refusing to provide any protection for a work,” Congress “set[s] the term at zero,” and thereby “tell[s] us when the end has come”). We find scant sense in this argument, for surely a “limited time” of exclusivity must begin before it may end. Carried to its logical conclusion, petitioners persist, the Government’s position would allow Congress to institute a second “limited” term after the first expires, a third after that, and so on. Thus, as long as Congress legislated in installments, perpetual copyright terms would be achievable. As in Eldred, the hypothetical legislative misbehavior petitioners posit is far afield from the case before us. See 537 U. S., at 198-200, 209-210. In aligning the United States with other nations bound by the Berne Convention, and thereby according equitable treatment to once disfavored foreign authors, Congress can hardly be charged with a design to move stealthily toward a regime of perpetual copyrights. B Historical practice corroborates our reading of the Copyright Clause to permit full U. S. compliance with Berne. Undoubtedly, federal copyright legislation generally has not affected works in the public domain. Section 514⅛ disturbance of that domain, petitioners argue, distinguishes their suit from Eldred’s. In adopting the CTEA, petitioners note, Congress acted in accord with “an unbroken congressional practice” of granting preexpiration term extensions, 537 U. S., at 200. No comparable practice, they maintain, supports §514. On occasion, however, Congress has seen fit to protect works once freely available. Notably, the Copyright Act of 1790 granted protection to many works previously in the public domain. Act of May 31, 1790 (1790 Act), § 1, 1 Stat. 124 (covering “any map, chart, book, or books already printed within these United States”). Before the Act launched a uniform national system, three States provided no statutory copyright protection at all. Of those that did afford some protection, seven failed to protect maps; eight did not cover previously published books; and all ten denied protection to works that failed to comply with formalities. The First Congress, it thus appears, did not view the public domain as inviolate. As we have recognized, the “construction placed upon the Constitution by [the drafters of] the first [copyright] act of 1790, and the act of 1802... men who were contemporary with [the Constitution’s] formation, many of whom were members of the convention which framed it, is of itself entitled to very great weight.” Burrow-Giles Lithographic Co. v. Sarony, 111 U. S. 53, 57 (1884). Subsequent actions confirm that Congress has not understood the Copyright Clause to preclude protection for existing works. Several private bills restored the copyrights of works that previously had been in the public domain. See Act of Feb. 19, 1849 (Corson Act), ch. 57, 9 Stat. 763; Act of June 23, 1874 (Helmuth Act), ch. 534, 18 Stat. 618; Act of Feb. 17, 1898 (Jones Act), ch. 29, 30 Stat. 1396. These bills were unchallenged in court. Analogous patent statutes, however, were upheld in litigation. In 1808, Congress passed a private bill restoring patent protection to Oliver Evans’ flour mill. When Evans sued for infringement, first Chief Justice Marshall in the Circuit Court, Evans v. Jordan, 8 F. Cas. 872 (No. 4,564) (Va. 1813), and then Justice Bushrod Washington for this Court, Evans v. Jordan, 9 Craneh 199 (1815), upheld the restored patent’s validity. After the patent’s expiration, the Court said, “a general right to use [Evans’] discovery was not so vested in the public” as to allow the defendant to continue using the machinery, which he had constructed between the patent’s expiration and the bill’s passage. Id., at 202. See also Blanchard v. Sprague, 3 F. Cas..648, 650 (No. 1,518) (CC Mass. 1839) (Story, J.) (“I never have entertained any doubt of the constitutional authority of congress” to “give a patent for an invention, which... was in public use and enjoyed by the community at the time of the passage of the act.”). This Court again upheld Congress’ restoration of an invention to protected status in McClurg v. Kingsland, 1 How. 202 (1843). There we enforced an 1839 amendment that recognized a patent on an invention despite its prior use by the inventor’s employer. Absent such dispensation, the employer’s use would have rendered the invention unpatentable, and therefore open to exploitation without the inventor’s leave. Id., at 206-209. Congress has also passed generally applicable legislation granting patents and copyrights to inventions and works that had lost protection. An 1832 statute authorized a new patent for any inventor whose failure, “by inadvertence, accident, or mistake,” to comply with statutory formalities rendered the original patent “invalid or inoperative.” Act of July 3, §3, 4 Stat. 559. An 1893 measure similarly allowed authors who had not timely deposited their work to receive “all the rights and privileges” the Copyright Act affords, if they made the required deposit by March 1, 1893. Act of Mar. 3, ch. 215, 27 Stat. 743. And in 1919 and 1941, Congress authorized the President to issue proclamations granting protection to foreign works that had fallen into the public domain during World Wars I and II. See Act of Dec. 18, 1919, ch. 11, 41 Stat. 368; Act of Sept. 25, 1941, ch. 421, 55 Stat. 732. Pointing to dictum in Graham v. John Deere Co. of Kansas City, 383 U. S. 1 (1966), petitioners would have us look past this history. In Graham, we stated that “Congress may not authorize the issuance of patents whose effects are to remove existent knowledge from the public domain, or to restrict free access to materials already available.” Id., at 6; post, at 358. But as we explained in Eldred, this passage did not speak to the constitutional limits on Congress’ copyright and patent authority. Rather, it “addressed an invention’s very eligibility for patent protection.” 537 U. S., at 202, n. 7. Installing a federal copyright system and ameliorating the interruptions of global war, it is true, presented Congress with extraordinary situations. Yet the TRIPS accord, leading the United States to comply in full measure with Berne, was also a signal event. See supra, at 312-313; cf. Eldred, 537 U. S., at 259, 264-265 (Breyer, J., dissenting) (acknowledging importance of international uniformity advanced by U. S. efforts to conform to the Berne Convention). Given the authority we hold Congress has, we will not second-guess the political choice Congress made between leaving the public domain untouched and embracing Berne unstintingly. Cf. id., at 212-213. C Petitioners’ ultimate argument as to the Copyright and Patent Clause concerns its initial words. Congress is empowered to “promote the Progress of Science and useful Arts” by enacting systems of copyright and patent protection. U. S. Const., Art. I, §8, el. 8. Perhaps counterintu-itively for the contemporary reader, Congress’ copyright authority is tied to the progress of science; its patent authority, to the progress of the useful arts. See Graham, 383 U. S., at 5, and n. 1; Evans, 8 F. Cas., at 873 (Marshall, J.). The “Progress of Science,” petitioners acknowledge, refers broadly to “the creation and spread of knowledge and learning.” Brief for Petitioners 21; accord post, at 344-345. They nevertheless argue that federal legislation cannot serve the Clause’s aim unless the legislation “spur[s] the creation of... new works.” Brief for Petitioners 24; accord post, at 345, 351, 360. Because § 514 deals solely with works already created, petitioners urge, it “provides no plausible incentive to create new works” and is therefore invalid. Reply Brief 4. The creation of at least one new work, however, is not the sole way Congress may promote knowledge and learning. In Eldred, we rejected an argument nearly identical to the one petitioners rehearse. The Eldred petitioners urged that the “CTEA’s extension of existing copyrights categorically fails to ‘promote the Progress of Science,’... because it does not stimulate the creation of new works.” 537 U. S., at 211-212. In response to this argument, we held that the Copyright Clause does not demand that each copyright provision, examined discretely, operate to induce new works. Rather, we explained, the Clause “empowers Congress to determine the intellectual property regimes that, overall, in that body’s judgment, will serve the ends of the Clause.” Id., at 222. And those permissible ends, we held, extended beyond the creation of new works. See id., at 205-206 (rejecting the notion that “ ‘the only way to promote the progress of science [is] to provide incentives to create new works’” (quoting Perlmutter, Participation in the International Copyright System as a Means To Promote the Progress of Science and Useful Arts, 36 Loyola (LA) L. Rev. 323, 332 (2002))). Even were we writing on a clean slate, petitioners’ argument would be unavailing. Nothing in the text of the Copyright Clause confines the “Progress of Science” exclusively to “incentives for creation.” Id., at 324, n. 5 (internal quotation marks omitted). Evidence from the founding, moreover, suggests that inducing dissemination — as opposed to creation — was viewed as an appropriate means to promote science. See Nachbar, Constructing Copyright’s Mythology, 6 Green Bag 2d 37,44 (2002) (“The scope of copyright protection existing at the time of the framing,” trained as it was on “publication, not creation,” “is inconsistent with claims that copyright must promote creative activity in order to be valid.” (internal quotation marks omitted)). Until 1976, in fact, Congress made “federal copyright contingent on publication[,] [thereby] providing incentives not primarily for creation,” but for dissemination. Perlmutter, supra, at 324, n. 5. Our decisions correspondingly recognize that “copyright supplies the economic incentive to create and disseminate ideas.” Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U. S. 539,558 (1985) (emphasis added). See also Eldred, 537 U. S., at 206. Considered against this backdrop, §514 falls comfortably within Congress’ authority under the Copyright Clause. Congress rationally could have concluded that adherence to Berne “promotes the diffusion of knowledge,” Brief for Petitioners 4. A well-functioning international copyright system would likely encourage the dissemination of existing and future works. See URAA Joint Hearing 189 (statement of Professor Perlmutter). Full compliance with Berne, Congress had reason to believe, would expand the foreign markets available to U. S. authors and invigorate protection against piracy of U. S. works abroad, S. Rep. No. 103-412, pp. 224, 225 (1994); URAA Joint Hearing 291 (statement of Berman, RIA A); id., at 244, 247 (statement of Smith, IIPA), thereby benefiting copyright-intensive industries stateside and inducing greater investment in the creative process. The provision of incentives for the creation of new works is surely an essential means to advance the spread of knowledge and learning. We hold, however, that it is not the sole means Congress may use “[t]o promote the Progress of Science.” See Perlmutter, supra, at 332 (United States would “lose all flexibility” were the provision of incentives to create the exclusive way to promote the progress of science). Congress determined that exemplary adherence to Berne would serve the objectives of the Copyright Clause. We have no warrant to reject the rational judgment Congress made. III A We next explain why the First Amendment does not inhibit the restoration authorized by § 514. To do so, we first recapitulate the relevant part of our pathmarking decision in Eldred. The petitioners in Eldred, like those here, argued that Congress had violated not only the “limited Times” prescription of the Copyright Clause. In addition, and independently, the Eldred petitioners charged, Congress had offended the First Amendment’s freedom of expression guarantee. The CTEA’s 20-year enlargement of a copyright’s duration, we held in Eldred, offended neither provision. Concerning the First Amendment, we recognized that some restriction on expression is the inherent and intended effect of every grant of copyright. Noting that the “Copyright Clause and the First Amendment were adopted close in time,” 537 U. S., at 219, we observed that the Framers regarded copyright protection not simply as a limit on the manner in which expressive works may be used. They also saw copyright as an “engine of free expression[:] By establishing a marketable right to the use of one’s expression, copyright supplies the economic incentive to create and disseminate ideas.” Ibid, (quoting Harper & Row, 471 U. S., at 558 (internal quotation marks omitted)); see id., at 546.(“rights conferred by copyright are designed to assure contributors to the store of knowledge a fair return for their labors”). We then described the “traditional contours” of copyright protection, i. e., the “idea/expression dichotomy” and the “fair use” defense. Both are recognized in our jurisprudence as “built-in First Amendment accommodations.” El-dred, 537 U. S., at 219; see Harper & Row, 471 U. S., at 560 (First Amendment protections are “embodied in the Copyright Act’s distinction between copyrightable expression and uncopyrightable facts and ideas,” and in the “latitude for scholarship and comment” safeguarded by the fair use defense). The idea/expression dichotomy is codified at 17 U. S. C. § 102(b): Question: Does the court opinion mention that one or more of the members of the court whose decision the Supreme Court reviewed dissented? A. Yes B. No Answer:
songer_genresp1	C	What follows is an opinion from a United States Court of Appeals. Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six. In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion. To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows: United States of America, Plaintiff, Appellant v International Brotherhood of Widget Workers,AFL-CIO Defendant, Appellee. International Brotherhood of Widget Workers,AFL-CIO Defendants, Cross-appellants v United States of America. Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman of the Board Plaintiff, Appellants, v United States of America, Defendant, Appellee. This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1. When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business. Your task is to determine the nature of the first listed respondent. UNITED STATES of America, Plaintiff-Appellee, v. Uless Grant MANSON et al., Defendants-Appellants. No. 73-1055. United States Court of Appeals, Seventh Circuit. Argued June 13, 1973. Decided April 9, 1974. Robert G. Mann, Indianapolis, Ind., for defendants-appellants. Stanley B. Miller, U. S. Atty., William F. Thompson, Asst. U. S. Atty., Indianapolis, Ind., for plaintiff-appellee. Before FAIRCHILD, Circuit Judge, SPRECHER, Circuit Judge, and GRANT, Senior District Judge. Senior District Judge Robert A. Grant of the Northern District of Indiana is sitting by designation. GRANT, Senior District Judge. The appellants and several other defendants were indicted as joint participants in an Indianapolis gambling operation. Count I charged that the appellants and seven other defendants engaged in a conspiracy to conduct an illegal gambling business in violation of 18 U.S.C. § 371. Count II charged that the appellants and six of the other defendants engaged in the same illegal gambling business in violation of 18 U.S.C. § 1955. Prior to trial the indictment was dismissed as to the one defendant who was charged only Count I, and as to another defendant who was charged in both Counts I and II, thus leaving seven named defendants in each Count. Appellants Blakey and Manson were tried and found guilty on both counts. In their appeal the appellants challenge: (1) whether the income tax return of an employee of the gambling business. should have been admitted in evidence; (2) the constitutionality of 18 U.S.C. § 1955; (3) whether this was an illegal gambling business “conducted by five or .more persons” within the meaning of 18 U.S.C. § 1955; and (4) whether the two counts properly charged two separate offenses. I Appellants assert that the trial court violated their Fifth Amendment privilege against self-incrimination when it received into evidence the 1971 Federal Income Tax Return of Irvin Kelly who was alleged to be an employee in the illegal gambling business in question. The return had been obtained from Mr. Kelly by subpoena and was introduced into evidence through the testimony of the accountant who had prepared the return from a W-2 Form and information which had been supplied by appellant Manson It is evident that the appellants had no standing to object to the introduction of Mr. Kelly’s tax return for the reason that the privilege against self-incrimination is personal and cannot be exercised by anyone other than the person to whom the material in question belongs. Howard v. United States, 397 F.2d 72, 74 (9th Cir. 1968), and Silbert v. United States, 289 F.Supp. 318, 320-321, 325 (D.Md.1968). Nor does the fact that Appellant Manson supplied the information contained on the return to their accountant, in order to comply with tax requirements in the operation of a business, give appellants any standing to object to the introduction of the return. The privilege against self-incrimination is not available to those who turn material over to a retained accountant for the purpose of disclosure in the preparation of tax returns. Couch v. United States, 409 U.S. 322, 337, 93 S. Ct. 611, 34 L.Ed.2d 548 (1973) (Justice Brennan concurring). II Appellants argue that 18 U.S.C. § 1955 is unconstitutional for the reason that it prohibits gambling businesses, such as the one which they were allegedly involved in, which do not affect interstate commerce. Admittedly, there was no evidence introduced at trial which would indicate that the appellants’ gambling activities had any effect whatsoever on interstate commerce. However, accepting the government’s interpretation of the facts, the gambling business which the appellants were involved in was large enough to come within the prohibition of 18 U.S.C. § 1955. That statute provides, in pertinent part, as follows: “§ 1955. Prohibition of illegal gambling businesses “(a) Whoever conducts, finances, manages, supervises, directs, or owns all or part of an illegal gambling business shall be fined not more than $20,000 or imprisoned not more than five years, or both. “(b) As used in this section— “(1) ‘illegal gambling business’ means a gambling business which— “(i) is a violation of the law of a State or political subdivision in which it is conducted; “(ii) involves five or more persons who conduct, finance, manage, supervise, direct, or own all or part of such business; and “(iii) has been or remains in substantially continuous operation for a period in excess of thirty days or has a gross revenue of $2,000 in any single day.” 84 Stat. 922, 937. This statute was based on a broad finding by Congress that the gambling enterprises described in the statute have sufficient impact on the interstate economy to warrant prohibition by federal criminal legislation. See 84 Stat. 936. This circuit has held that such finding is sufficient to constitutionally support the statute even when it is applied to individual members of the class whose own activities may not have a demonstrable impact on interstate commerce. United States v. Hunter, 478 F.2d 1019, 1021 (7th Cir. 1973), cert, denied, 414 U.S. 857, 94 S.Ct. 162, 38 L.Ed.2d 107. This position has been previously adopted in each circuit which had been presented with the issue. United States v. Harris, 460 F.2d 1041, 1043-1048 (5th Cir. 1972), cert, denied, 409 U.S. 877, 93 S.Ct. 128, 34 L.Ed.2d 130; United States v. Palmer, 465 F.2d 697 (6th Cir. 1972), cert, denied, 409 U.S. 874, 93 S.Ct. 119, 34 L.Ed.2d 126; United States v. Becker, 461 F.2d 230, 233-234 (2nd Cir. 1972); United States v. Riehl, 460 F.2d 454, 458 (3rd Cir. 1972); Schneider v. United States, 459 F.2d 540 (8th Cir. 1972). Ill The appellants have also contended that the evidence failed to establish that there were five or more persons who conducted, financed, managed, supervised, directed or owned all or part of the business in question as required to constitute a violation of 18 U.S.C. § 1955. The parties agree that from the evidence, only the appellants themselves could have been said to have financed, managed, supervised, directed or owned all or part of the business. There were at least three other persons, however, who acted as ticket sellers or runners in the business. Appellants argue that these other persons could not be counted as part of the “five or more persons who conduct, finance, manage, supervise, direct, or own all or part” of the illegal gambling business as required by 18 U. S.C. § 1955. However, this court has re- ' cently held that such “street level employees” as ticket sellers and runners are to be counted as persons who “conduct” the illegal gambling business as provided in the statute. Hunter, supra, 478 F.2d at 1021. Accordingly, we conclude that the evidence did establish the existence of the required number of persons to constitute a violation of 18 U.S. C. § 1955. IV Finally, the appellants contend that convictions on both Counts cannot stand because they do not charge separate offenses. Clearly, two offenses can only be separately prosecuted and punished if each requires proof of an element which the other does not. In this action, Count I charged that the appellants and other defendants conspired to engage in an illegal gambling business, in violation of 18 U.S.C. § 371. Count II charged that the appellants and other defendants engaged in an illegal gambling business, in violation of 18 U.S.C. § 1955. Seven defendants were tried and convicted on each count. Some circuits have found that where more than five persons were charged with both conspiracy to violate 18 U.S.C. § 1955 and a substantive violation of § 1955, the offenses were separate and both offenses could be prosecuted. However, in a case where there were thirteen persons charged with both conspiracy to violate § 1955 and substantive violation of the statute, this circuit has recently rejected that argument and pointed out: . an argument which merely emphasizes the number of the persons charged in the indictment does not identify an element of each offense which adequately differentiates the other. . . . But even though five or more persons are named in the indictment, a charge of conspiracy to violate § 1955 may not be maintained if it comprehends nothing more than the agreement which those persons necessarily performd by the commission of the substantive offense itself. Hunter, supra, 478 F.2d at 1026. As in Hunter, we find here “no ingredient in the conspiracy [charged in Count I] which is not present in the completed crime [charged in Count II]”. The judgments of conviction against appellants in Count I are reversed. In all other respects the judgments against appellants are affirmed. . The return contained statements that Mr. Kelly’s principal business activity was “Commission sales”, the name of the business was “Uless Manson 35 886P” and the business address was 437 W. North St., Indianapolis, Ind.” . United States v. Becker, supra, 461 F.2d at 234. 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_casetyp1_7-2	D	What follows is an opinion from a United States Court of Appeals. Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation". In re PAN AMERICAN PAPER MILLS, INC., Debtor, Appellant. No. 79-1583. United States Court of Appeals, First Circuit. Argued March 11, 1980. Decided April 11, 1980. Nelson I. Fishman, Baltimore, Md., with whom Howard A. Rubenstein, Baltimore, Md., was on brief, for appellant. Marta Quinones de Torres, Asst. Sol. Gen., Dept, of Justice, San Juan, P. R., with whom Hector A. Colon Cruz, Sol. Gen., San Juan, P. R., was on brief, for appellee. Before COFFIN, Chief Judge, BOWNES, Circuit Judge, and WYZANSKI, Senior District Judge. Of the District of Massachusetts, sitting by designation. WYZANSKI, Senior District Judge. This appeal involves a tax priority claim made in bankruptcy proceedings. The question presented is whether unpaid “premiums” assessed under the Puerto Rico Workmen’s Accident Compensation Act, 11 •L.P.R.A., § 26, par. 3, for a period when an employer was covered but not insured constitute “taxes” entitled to priority under § 64(a)(4) of the Bankruptcy Act, 11 U.S.C. § 104(a)(4). § 64(a)(4) of the Bankruptcy Act, 11 U.S.C. § 104(a)(4) provides: (a) The debts to have priority, in advance of the payment of dividends to creditors, and to be paid in full out of bankrupt estates, and the order of payment, shall be . (4) taxes legally due and owing by the bankrupt to the United States or any State or any subdivision thereof. . The Puerto Rico Workmen’s Accident Compensation Act, 11 L.P.R.A., §' 1, et seq. (hereinafter the “WAC Act”) establishes a comprehensive, compulsory insurance system which the parties agree covered Pan American Paper Mills, Inc., (Pan American) and its employees during the years relevant to this case. See § 2. § 8 provides that the act shall be administered by a Manager who shall create a State Insurance Fund (hereinafter called “the Fund”). § 19 obliges every covered employer to insure his employees “in” the Fund. § 28 makes it the duty of every covered employer to file no later than July 20 of each year a “statement” or report showing the wages paid during the fiscal year that ended on the previous June 30. § 26 authorizes the Manager to assess premiums for the year following the report period, and provides that “said premiums shall be collected semi-annually in advance.” However, the premium for the first semester (July 1 to December 31) is not due until a date specified in the notice of assessment, and the premium for the second semester (January 1 to June 30) is not due until January 2. See § 26. If the employer does not pay the premium before the end of the relevant semester, the employer is not insured against any accident that occurs during that semester. § 28, par. 6; The American Railroad Co. of Porto Rico v. Industrial Commission of Puerto Rico, 61 P.R.R. 303, 308 (1943). Under the original form of the WAC Act, as enacted in the Puerto Rico Act of April 18, 1935, if the employer did not pay the premium before the end of the semester, then, because he was not insured for that semester, he was totally excused from any obligation to pay the premium at any time. The American Railroad Co. of Porto Rico v. Industrial Commission of Puerto Rico, supra. However, the Puerto Rico Act of May 9,1942 amended the WAC Act to provide in the third paragraph of § 26 11 L.P.R.A. In case any employer covered by this Act [chapter] fails to insure properly, the Manager may assess and levy on, and collect from him premiums for all such time as said employer may have remained uninsured, in the same manner as if he were insured. Both before and after the 1942 amendment, a covered employee of a covered employer had the benefits of the WAC Act even though his employer was uninsured because he had failed promptly to pay a premium he owed. See § 16. That is, the employee was free to proceed to recover from the Fund accident compensation for any covered injury and, in turn, the Fund was entitled to be compensated by the uninsured, but covered employer for all costs thus incurred by the Fund. § 16; The American Railroad Company of Porto Rico v. Industrial Commission of Puerto Rico, supra. Pan American failed to pay its WAC Act premiums amounting to $68,250.61 for the years 1972 through 1976. On account of covered injuries which Pan American employees sustained during those years, the Fund paid them $50,897.05. June 26, 1975 Pan American filed a petition for relief under Chapter XI of the Bankruptcy Act, 11 U.S.C. § 701, et seq. The Bankruptcy Judge allowed the petition and continued Pan American as a debtor in possession. The Fund filed two claims which were consolidated; the first or priority claim sought $68,250.61 on account of unpaid premiums which the Fund alleged were “taxes” entitled to priority under § 64(a)(4) of the Bankruptcy Act, 11 U.S.C. § 104(a)(4); and the second or' unsecured claim sought $50,897.05 on account of compensation for what the Fund had paid to Pan American employees. The Bankruptcy Judge entered an order allowing both claims and according a § 64(a)(4) tax priority to the first claim. The District Judge affirmed the order, and Pan American appealed. Pan American’s appeal is based on its argument that The American Railroad Company of Porto Rico v. Industrial Commission of Puerto Rico, supra held, and Central Boca Chica, Inc. v. Treasurer, 54 P.R.R. 404, 417 (1939) implied that an obligation imposed upon an uninsured employer to pay a “premium” to the Fund established under the Workmen’s Accident Compensation Act would be a penalty, and that therefore such an obligation cannot be a tax under § 64(a) of the Bankruptcy Act. We reject Pan American’s argument and affirm the District Court. The question whether an obligation is a tax entitled to priority under § 64(a)(4) of the Bankruptcy Act is a federal question. City of New York v. Feiring, 313 U.S. 283, 285, 61 S.Ct. 1028, 1029, 85 L.Ed. 1333 (1941); New Jersey v. Anderson, 203 U.S. 483, 491, 27 S.Ct. 137, 139, 51 L.Ed. 284 (1906). It is undisputed and we hold that under federal law for purposes of Bankruptcy Act § 64(a)(4) Puerto Rico is a subdivision of the United States. What is disputed'is whether a premium claim covering an elapsed period is a claim for “taxes.” The Supreme Court, taking a broad view of what constitutes “taxes” within the meaning of § 64(a)(4), has ruled that “the priority commanded ,by § 64 extends to those pecuniary obligations laid upon individuals or their property, regardless of their consent, for the purpose of defraying the expenses of government or of undertakings authorized by it.” Ibid; United States v. New York, 315 U.S. 510, 515-516, 62 S.Ct. 712, 714-715, 86 L.Ed. 998 (1942). That broad approach led lower courts to hold that where, pursuant to an unemployment compensation law, a state exacts from an employer so-called “contributions” a state’s claim for such contributions is entitled to priority as a claim for taxes under Bankruptcy Act § 64(a)(4). Re William Akers, Jr. Co., 121 F.2d 846 (3rd Cir. 1941); Matter of Siegelbaum’s Inc., 38 F.Supp. 1009 (D.Conn.1941); Matter of Mid America Co., 31 F.Supp. 601 (S.D.Ill.1939); Re Oshkosh Foundry Co., 28 F.Supp. 412 (D.Wis. 1939). We see no reason not to apply the same approach to situations where pursuant to a workmen’s compensation law a state or subdivision of the United States exacts from an employer so-called “premiums.” State Industrial Accident Commission v. Aebi, 177 Or. 361, 162 P.2d 513, 161 ALR 211 (1945). The reason that such premiums should be treated as taxes within § 64(a)(4) of the Bankruptcy Act is that they are pecuniary obligations imposed by the government for the purpose of defraying the expenses of an undertaking which it authorized. Appellant’s argument in the case at bar that the Fund’s priority claim of $68,250.61 for premiums is not a tax because in return for the premiums involved in the claim Pan American received no insurance protection rests upon a misconception. Bankruptcy Act § 64 gives priority to a premium claim if it has certain tax characteristics not because it has insurance characteristics. The pertinent questions about a so-called premium are whether the government compelled the employer to pay the exaction and whether the payment was for a public purpose. In determining whether the premiums were “taxes” under Bankruptcy Act § 64(a)(4) it is of no consequence that had Pan American been prompt in paying the premiums it would have had as a quid pro quo insurance protection; nor is it of any consequence that since the corporation failed to make prompt payment it had no insurance protection. Pan American is not, except in a colloquial and inexact sense, punished in any way because of its delay. Pan American is merely failing to get a benefit that it would have enjoyed had it paid its premiums promptly. Appellant’s contention that Pan American’s own dilatoriness converted a tax obligation into a “penalty” as that term is used in § 57(j) of the Bankruptcy Act, 11 U.S.C. § 93(j), is reminiscent of one of the unsuccessful contentions in United States v. New York, supra. There it was argued that 90% of the Title IX, Social Security Tax on employers was, for purposes of §§ 57 and 64 of the Bankruptcy Act, a penalty and not a tax because that 90% was payable to the federal government only if it were not used as a credit on account of payments made by the taxpayer to a state unemployment compensation fund. See United States v. New York, 315 U.S. 510, 516-517, 62 S.Ct. 712, 715, 86 L.Ed. 998 (1942). In rejecting that argument, Mr. Justice Byrnes said at p. 517, 62 S.Ct. at p. 715: “Although the employer is free to obtain a credit against it [90% of the Title IX tax] by contributing to his state fund, it cannot be said that it is any the less a tax because the employer has failed, either through choice or lack of resources, to make such a contribution.” So here although the employer is free by paying promptly to obtain insurance protection, it cannot be said that his premium obligation is any the less a tax because the employer has failed, either through choice or lack of resources, to make his premium payment promptly. From the preceding analysis it follows that the Fund’s priority claim of $68,250.61 was appropriately allowed. Nor do we perceive any reason for reversing the allowance of the Fund’s unsecured claim of $50,-897.05, Puerto Rico in § 16 of the WAC Act imposed upon a covered but uninsured employer an obligation to compensate the Fund for whatever it had paid his employees while he was uninsured; § 26 of that act imposed upon him an obligation to pay “premiums.” We are not aware of any principle or of any authority which precludes the Puerto Rico legislature from imposing those obligations cumulatively. The cumulative obligations underline the point that the employer’s so-called premium obligation is not the conventional premium familiar in ordinary cases of insurance, (see 5 Couch on Insurance § 30:1 (2nd ed. I960)), but is indeed a tax which is payable even if it is not advantageous to the employer. There is no merit in appellant’s preposterous contention that only so much of Pan American’s overdue premiums is payable as represents what the Fund was required to expend to pay Pan American’s employees for the period when the premiums were due but remained unpaid. If adopted, appellant’s contention would have the absurd consequence of giving to Pan American a financial advantage for not having paid its premiums promptly. Affirmed. . Appellant does not directly present the question whether premiums paid by an employer for a period when he was insured constitute “taxes” under Bankruptcy Act § 64. . Those two cases were decided with respect to the WAC Act as it stood before the 1942 amendment added paragraph 3 to § 26. Hence those cases could at best offer dicta rather than holdings as to what is the meaning of the present version of § 26. . Two early cases, Matter of Farrell, 211 F. 212 (W.D.Wash.1914) and Re Eureka Paper Co., 44 Am.Bank Rep. (F) 179 (D.C.Ref.1919) held that a payment by an employer to a workmen’s compensation act fund is not a tax. The reason given in Farrell (p. 213), that the exaction is “an assessment against a class for the benefit of a class”, is in the spirit of the subsequent decision involving the Agricultural Adjustment Act, United States v. Butler, 297 U.S. 1, 56 S.Ct. 312, 80 L.Ed. 477 (1935), virtually overruled by the Social Security Act cases, Carmichael v. So. Coal & Coke Co., 301 U.S. 495, 57 S.Ct. 868, 81 L.Ed, 1245 (1937), Steward Machine Co. v. Davis, 301 U.S. 548, 57 S.Ct. 883, 81 L.Ed. 1279 (1937), and Helvering v. Davis, 301 U.S. 619, 57 S.Ct. 904, 81 L.Ed. 1307 (1937). . See State Industrial Accident Commission v. Aebi, supra, which rejected the argument that an exaction from an employer to contribute to a workmen’s compensation act fund could not be a tax for the purposes of Bankruptcy Act § 64 because “under the Workmen’s Compensation Law the employer is paying for insurance which directly benefits him whereas under Unemployment Compensation Law the employer is- simply contributing to a fund, which is to be expended for the general welfare.” (162 P.2d at p. 516). 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_othjury	E	What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court conclude that the jury composition or selection was invalid or that the jury was biased or tampered with?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless". FULTON CO. v. JANESVILLE LABORATORIES, Inc., et al. JANESVILLE LABORATORIES, Inc., et al. v. FULTON CO. Circuit Court of Appeals, Seventh Circuit. August 30, 1927. Nos. 3749, 3750. 1. Patents <@=>328 — 971,838, for process of making corrugated metal walls, held not to violate rule against double patenting, because of prior patent to same- person for the product. Fulton patent, No. 971,838, for process of making corrugated metal walls, held not to violate the rule against double patenting, because of earlier patent to the same person for the product, disclosing how the product was produced, but sufficiently indicating the product as in itself an invention, as properly to. stamp it the product patent it purports to be, especially as the later patent, was separately applied fpr pursuant to -an- order for division made by the Patent Office on an earlier application, which included-both product and process. 2. Patents <@=328 — 971,838; claims 1 — 5, for process of making corrugated metal wall, held valid and, except claim I, infringed: Fulton patent, No. 971,838, claims 1-5, for process of- making corrugated metal- wall, held v¿lid and, except claim 1, infringed. 3i Trade-marks and trade-names and unfair competition <@=93(3). — Unfair competition by infringer of patent process in sale of- product .is negatived by absence of confusion and deception. Absence' of confusion and deception from and in sale by infringer of process patent of its product negatives unfair competition. Appeals from- the District Court of the United States for the Western District of Wisconsin. Patent infringement suit by the Pulton Company against the Janesville Laboratories, Ine., and another. From different parts of the decree, both parties appeal. Affirmed. Loyd H. Sutton, of Washington, D. C., for appellant. Frank Liverance, Jr., of Grand Rapids, Mich., for appellees. Before ALSCHULER, EVAN A. EVANS, and PAGE, Circuit Judges. ALSCHULER, Circuit Judge. Defendants below appeal from decree finding valid claims 1, 2, 3, 4 and 5 of United States patent No. 971,838, October 4, 1910, to Fulton, and all but claim 1 infringed. The Fulton Company appeals from so much of same decree as finds claim 1 not Infringed, and defendants below not guilty of unfair competition. Judge Luse, before whom the cause was heard in the District Court, rendered an opinion therein which appears in the margin. The facts are there sufficiently stated. In the briefs and oral argument here for defendants below the defense of double patenting is mainly relied on to defeat the patent. The contention is that United States patent No. 947,229 to same inventor, ’ antedating by several months the patent in issue, is for the same invention. The patent in suit is for a process, and the earlier patent purports upon its face to be. for a.product. But it is contended that the, earlier patent is, in fact, for a process, and the same process as the other, and that the later patent is therefore void. The opinion of the District Court does not deal specifically with this contention, The product patent shows a structure which, while produced as there specified, and substantially as described in tbe process patent,-is distinctive in that it describes a product" having an increased toughness and resiliency at specified locations, needless here to be specifically considered, since that patent is not here in issue. It is narrowly limited, and presumably was not deemed to have been infringed, else it would also have been sued upon, as was the case in Fulton Co. v. Bishop & Babcock Co., 17 F.(2d) 999, where both of the patents were sued upon, and the District Court found the product patent not infringed, but all of the claims of the process patent valid and infringed — that decree being affirmed in the Sixth C. C. A. Fulton Co. v. Bishop &. Babcock Co., 17’- F.(2d) 1006 (March 7, 1927). ! One of the conditions upon which a patent monopoly is granted is that in the application there be'made such disclosure as will enable the public to practice and to have the beneficial use of the invention when the monopoly expires. The patent is therefore ¿one the less for a product from the fact alone that it discloses how to make it. . ' The salutary rule against double patenting is directed against the evil of prolonging by subsequent patent the monopoly of an earlier grant. But where, as here, the later patent was separately applied for pursuant to an order for division made by the patent office upon an earlier application, which included both product and process,, the conclusion of double patenting will not so readily follow. Aurora Mantle & Lamp Co. v. Kaufman (C. C, A.) 243 F. 911. .Although the earlier patent ifidicates how the product is produced, we are satisfied that thaUpatent does'suffieiently indicate the product,.as i¿ itself an invention, .as properly to stamp it the product patent it purports to be, and that the two grants are 'not, in this respect, for the,same invention, and we are well fissured that- the challenge of the patent’s validity on the ground of double patenting has not been sustained. : The contention of defendants below that they did not follow the process of the claims found infringed, -and of the Fulton Company that defendants below did infringe claim 1, and were also guilty of unfair competition, were fully and properly treated in the District Court opinion, and need not here be further discussed, and we agree in its conclusion that these contentions are not sustainable. We are impressed by what the Circuit Court of Appeals of the Second Circuit said in the last paragraph of its opinion in Fulton Co. v. Bishop & Babcock Co., supra, respecting the matter of reasonable royalty; and we suggest that the master investigate, and report, inter alia, what during the infringing period would have been a reasonable royalty. The decree of the District Court is affirmed. Luse, District Judge. Complainant’s bill filed September 10,1923, charges the individual defendant, Leach, acting as an individual and as an officer and in control of the defendant corporation, and the corporation, with using the process of making expansible and collapsible tubular metal walls embraced in Fulton patent No. 971,-838, assigned to plaintiff. The bill also charges the defendants with unfair competition, in that defendants have copied plaintiff’s process of manufacture and imitated the products of plaintiff’s manufacture, with the intent and purpose, successfully carried out, of deceiving the purchasing public in the purchase of defendant’s product in place of plaintiff’s product. The claims of the patent in suit are five in number. The fourth claim is identical with the second, except that, immediately following the phrase “consisting in forming a thin walled metal tube,” the phrase “annealing said tube” is inserted. The fifth claim is identical with the third, except that the phrase “annealing said tube” is inserted immediately following the phrase “consisting in forming a thin walled metal tube.” The first three claims of the patent are as follows: “1. The process of making flexible corrugated metal walls, consisting in forming a thin walled tube, forcing the metal- of the tube outward from the axis of the tube to form broad corrugations therein with narrow uncorrugated portions connecting the broad corrugations, then deepening and narrowing said corrugations while subjecting the metal at the bends to a metal rolling operation to toughen and temper the metal in said curved portions. “2. The process of making flexible corrugated metals walls, consisting in forming a thin walled metal tube, forcing the metal of the wall outward to form broad corrugations, reducing the, radius of curvature of the- bends at said outwardly extending corrugations while transferring into the lateral portions, portions of said bends. , and subjecting said curved - portions to swaging pressure to toughen and temper, the metal in said curved portions. ' “3. The process of making flexible corrugated metal walls consisting in forming a thin walled metal tube, forcing the metal of the wall outward to form broad corrugations, leaving narrow uncorrugated connecting portions between the outwardly extending corrugations, reducing the radius of curvature of the bends of said outwardly extending corrugations while transferring into the lateral portions, portions of said bends, and forcing the metal in said narrow uueorrugated portions into inwardly projecting corrugations, and subjecting the curved por-, tions of said first-named bends to swaging pressure to toughen and temper the metal in said curved portions.” , The invention as stated in the -specification-relates to processes of making, flexible corrugated metal walls for collapsible and expansible vessels, particularly for the class used for confining fluids under pressure and has for its object the production of corrugated metal walls of high resilience and of great strength -and durability and which can be collapsed and expanded many times while confining fluids under pressure without material injury to the wall. The original application filed April 3, 1907, was. a combine)} application for a process and product patent. The Patent Office ordered a division, the examiner saying: “Since the article may be made by other processes than that claimed, the inventions are, independent and division is accordingly requir-. ed before further action may be taken on the, merits.” Division resulted accordingly, and the applica-. tion for the patent in suit was filed July,.22, 190-9, and a patent granted October 4, 1910.* . One of the steps of the patented process,, which is the subject of controversy between the, parties and which will be t&ken up first, is the process of forming first broad, outwardly ex-¡ tending corrugations in which the thin metal tube, is pressed over a die roll and under a matrix, roll, there having been inserted in the tube an expanding brace. In operation the matrix roll, is lowered into contact with the tube and press-, ed toward the die roll. The shafts upon which: the two rolls are mounted are rotated, with the, result that the die roll, operating upon the in-; terior of the tube, presses a portion thereof, outwardly in the form of an outward corrugation into the sinus of the matrix. During this operation the expansion brace is located beneath the flange of the matrix roll,: and, as the, patent puts it, “prevents the unyard swaging; of the tubqlar wall during the action”, of the, rolls. T^e plaintiff h;as long since ..abandoned - the use of the rolls and expansion brace, ;in, forming the first-broad outward corrugations, and uses instead an -expanding mandrel, which; has an. expanding element made up of eight, segments; the mandrel being inserted into the, tub,e and the expanding element .íg , there, ex-( panded, forcing a portion of the tube outwardly into a broad outward corrugation. This is the process which the defendants follow. It is the claim of the defendants that they, as well as the plaintiff, have thus omitted one of the essential steps of the patented process in that: A. By the use of the mandrel no “harrow uncorrugated connecting portions . between the outwardly extending corrugations” are left in the sense in which the phrase last quoted is used in claims 1, 3, and 5 of the patent. 'B. That an excess' of temper and toughness in the outer bends of the outer corrugations over the bends of the inner corrugations is a prime characteristic of the patented process in which the presence of the expansion brace is essential! As to “A,” it is admitted by the defendants in their answer to the tenth interrogatory that in their use of the mandrel the broad outward corrugations are so located •¿'ith reference to one another as to leave the portions between such corrugations narrower than the outward corrugations. The term “narrow” being a relative one, it is apparent that the use of the mandrel does not prevent the leaving of narrow portions of the tube between the broad corrugations. Nor is any reason perceived for attributing to the word “uncorrugated” any unusual meaning, and while the use of the mandrel may result in the surface of the tube following what is often called a sine curve, nevertheless the portions of the tube between two outward corrugations formed by the mandrel are as clearly uncorrugated in that such portions have not been made the subject of a process of corrugating as though the expanding brace had been used in opposition to the surface of the flange of the matrix roll. True the use o'f the brace serves to prevent the inward forcing of the narrow uneorrugated portions but as will more fully appear later, I deem the use of the brace a part of the illustrative method of following the process rather than an essential thereof. As to contention “B,” it is to be borne in mind that the means of carrying the process into effect described in the patent is only illustrative. This is common in process patents and in the instant case such description is introduced with the words “the inventive idea is capable of expression in a variety of methods, one of which for the purpose of illustration is hereinafter specifically described.” The conclusion is therefore reached that the use of the expanding mandrel by the parties is not an effective departure from the process of the patent, and that in the process used by the defendant narrow uncorrugated portions are left connecting the broad corrugations, within the meaning of the claims 1, 3; and 5. In defendant’s process, however; there are no rolls or their equivalent used in opposition to one' another, between which-the metal ofi the tube is rolled, and I therefore find that the defendant does not use a metal rolling operation, as the term! is ii'Sed in claim 1 of the patent. Considerable testimony and argument has been heard with reference to the meaning of the phrase “subjecting the said curved portions to swaging pressure to toughen and temper the metal in.said curved portions,” found in all of the claims save the first, with particular reference to the meaning of the word “swaging pressure.” The term “swage” is defined in Hawkins Mechanical Dictionary as “a tool, variously shaped or grooved on the end or face, used by blacksmiths or other workers in metals, for shaping their work, whether in sheet metal or forging, by holding the tool upon it. or the work upon the tool, and striking with a sledge.” Webster’s definition is the same, and the latter says the verb “to swage” means “to shape by means of a swage.” The Century Dictionary’s definition of the noun is “a tool or die for imparting a given shape to metal when laid hot on an anvil, or- in a stamping press or dropping press, or between rollers. It assumes many shapes, as an indenting or shaping tool or as a die for striking up said metal or in stamping or presses. Stamping presses are sometimes called swage machines.” Whatever may be the lexicographer’s definition of the word “swaging,” it is quite clear that, as used in the patent in suit, the term does not contemplate that such portion of the tube as is being subjected to swaging pressure must be bottomed against an opposing surface. The expanding brace heretofore referred to' is spoken of as preventing the inward swaging of the tubular wall by the opposing surface Of the matrix flange, and the action of the flanges of the matrix roll in subsequent steps of the process where the expanding brace is not used and where no .surface is in apposition to the inner surface of the inward corrugations, is termed swaging. In view of these applications of the term by the patentee, the intent to use the term 'in .a sense limited to pressure of the metal by one roll or tool against the surface of another in the process of swaging is so negatived as not to warrant, much less require, such a limitation. Pressure by' a shaping tool stretching and bending (he metal is-what was intended, as I view it. That the drawings of the patent illustrate the outer corrugations in their extreme positions, bottomed against the curved surface of the sinus of the -matrix, is of no particular moment, inasmuch as there is nothing to indicate that the working of the metal is to continue after such contact is effected. That the defendants avoid such bottoming, does not, in my opinion, differentiate their process from “swaging” as that term is used in the patent in suit. Defendants define their process as “spinning” rather than swaging, but spinning is a process spoken of in the specifications as one which might be used instead of the rolling process, without departure from the essence of the invention. Thus construed, defendant’s method clearly infringes. It is immaterial that they add steps to the process which they consider improves the product, so long as they slavishly follow the patented process so far as it goes. Tilghman v. Proctor, 102 U. S. 707, 731 et seq., 26 L. Ed. 279; Lalance & Grosjean Mfg. Co. v. Haberman Mfg. Co. (C. C.) 53 F. 380; Ford Morocco Co. v. Tannage Patent Co. (C. C. A.) 84 F. 644. But it is earnestly contended that if the patent be so construed it is invalid, being anticipated, it'is said, by five prior art patents — three United States patents, Daelen No. 266,976, dated November 7, 1882; Emery & Gentner, No. 297,-244, dated April 22, 1884; Hollerith. & Metcalf, No. 349,718, dated September 28, 1880; one English patent, Webster, No. 825, dated October, 1, 1856; and one German, issued to Koffler No. 98,096, April 25, 1897. No evidence is given tending to show that the methods of these patents have ever been used and the testimony indicates that no one piece flexible corrugated tubular walls were known, having or in any degree approximating the highly sensitive flexibility of the Fulton bellows, prior to Fulton. Four of the above patents relate to the manufacture of expansion joints, indicating the use of comparatively heavy tubes with corrugations comparatively shallow, designed to afford but slight elasticity when compared with that which results from the Fulton process as applied to the type of tube contemplated. When it is borne in mind that the Fulton process is intended to operate on extremely thin tubes, those ordinarily used being .003 to .008 inches in thickness, and that the requisite corrugations must be deep, it is apparent that machines or processes intended to form corrugations in tubes to be used in expansion joints in steam pipes, boiler flues and tubes, condensers, couplings between locomotives and their tenders, hose for fire engines, etc., are not likely to disclose a method of dealing with a tube so frail as that, the forming of which is the first step of the Fulton process. Nor do they. The evidence indicates that Fulton tried out most, if not all, of these processes in his efforts to solve his problem but without success and defendants apparently 'perceive little of virtue in them, if their adherence to the Fulton process be given weight. The Daelen patent, most relied on, does not deal with expansion joints, however, but covers a machine “for corrugating plates and tubes.” The drawings and specifications disclose a machine for corrugating sheets of metal, but the inventor says that the machine “may also be used for pressing corrugations into tubes.” Some doubt may exist as to whether or not the machine would operate to form corrugations in a tube, except in the form of a helix; but, laying that and other doubts aside, the Daelen machine assuredly does not operate to “reduce the radius of curvature of the bends” during successive operations nor to “transfer into the lateral portions, portions of said bends.” The steps of the Fulton process last above quoted indicate important elements thereof, to wit, the swaging by successive sets of rolls or tools, progressively narrow, so that the corrugations are not only deepened but narrowed, and portions of the bends transferred into lateral portions of the corrugations, thus giving that increase of temper as one approaches the curve of the bend where the maximum of toughness exists. This same distinction exists between the process in suit and the machines or processes disclosed in Emery No. 297,244, Hollerith, No. 349,718, and Koffler, the German patent, No. 98,096, all three of which use hydraulic pressure as a means of forcing the corrugations outward and relate to the manufacture of expansion joints as already indicated. The Webster patent (English, 1856) discloses a series of operations, using rolls progressively narrow, but applied wholly upon the exterior of the tube to make and deepen inwardly extending corrugations only. This patent discloses no method of preventing the inward crumpling of the tube. Assuming that the Webster machine would successfully corrugate tube for the purposes specified, to wit, for couplings of locomotives with their tenders, hose for fire engines and other like purposes, they being of sufficient thickness and weight to withstand the contemplated operations, I find that this method would not be successfully operative upon the thin tube used in the patented process. In all probability the thin tube of the process in suit would crumple under the pressure, but if not that, I am convinced that body wrinkles, so called, would result, to the serious detriment of the product. Furthermore the ripe age of this patent, the years of which seem barren of actual contribution to the art, lend to deny it a status anticipating the quite substantial contribution of the Fulton process. Other earlier patents have been referred to but not seriously pressed and it is not thought necessary to' treat them separately. All have been considered. In accordance with the foregoing, I find claims 2, 3, 4, and 5 of the patent valid and infringed. I find claim 1 is not infringed. On the issue of unfair competition I find for the defendants. The defendant Laboratories, Company has made and sold thermostatic regulating devices suitable for use in automobiles to automobile manufacturers. These devices combine the tubular wall, a process for making which is the subject of what has been said, with rigid end plates, making a hermetically sealed inelosure in which is confined a volatile fluid. Such devices are not easily distinguishable from those produced by complainant. On the latter’s device for similar purposes the, name “Sylphon” is stamped in the plate at one end of the device, while those of the Laboratories omits any designation or distinguishing mark. Both types of devices are strictly utilitarian and except as just indicated, bear no marks. So far as the tubular wall of the respective devices is concerned, neither concern gives it any distinguishing mark, nor could that well be done, I think, without detriment to the strength or efficiency of tlie wall. However, the defendant Laboratories have sold such devices exclusively to manufacturers of automobiles whom it has informed that the devices were not of complainant’s manufacture, and I find no deception nor confusion of goods has resulted. To the claim of comjflainant that users of automobiles will be likely to attribute failures of the Laboratories device to complainant’s to the injury of the latter, it is sufficient to say that such contention wanders into the field of speculation. Also there is no evidence suggesting much less warranting a conclusion, that the devices of the Laboratories are any less efficient or durable than those of complainant. The conclusion being that there is no deception iior confusion of goods, nor is there any probability of same, it becomes unnecessary to determine the effect of the fact that complainant had a patent, No. 760,443, dated May 24, 1904, and which expired in 1921, prior to defendants’ entry .into the field, which covered “a hermetically sealed expansible and collapsible' vessel containing a saturated vapor and consisting of rigid end walls connected by corrugated walls yielding along the line of one dimension only” (claim 2). For whether or no the issue involves practices during or after the life of a patent,'absence of confusion and deception negatives unfair competition. Burns Co. v. .Automatic Safe Co. (C. C. A.) 241 F. 472, 486. Question: Did the court conclude that the jury composition or selection was invalid or that the jury was biased or tampered with? A. No B. Yes C. Yes, but error was harmless D. Mixed answer E. Issue not discussed Answer:

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